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HomeMy Public PortalAboutRAS000001 - 00062251512015 CM/ECF-Uve Database-ftsd U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE#: 9:15-cv-80182-KAM Date Filed: 02112/2015 Jury Demand: Plaintiff WM Town of Gulf Stream eta! v. O'Boyle eta! Assigned to: Judge Kenneth A. Marra Cause: 18:1964 Racketeering (RICO) Act Nature of Suit: 4 70 Racketeer/Corrupt Organization Plaintiff Town of Gulf Stream 100 Sea Road Gulf Stream, Fl 33483 a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated Plaintiff Jurisdiction: Federal Question represented by Gerald F. Richman Richman Greer, P.A. 250 Australian Avenue, South Suite 1504 West Palm Beach, FL 33401-5016 561-803-3500 Fax: 820-1608 Email: grichman@richmangreer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Leora Beth Freire Richman Greer Wei! Brumbaugh Mirabito & Christensen 250 Australian Avenue, South Suite 1504 West Palm Beach, FL 33401~5016 561-803-3500 Fax: 561-820-1608 Email: lfreire@richmangreer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Eric Matthew Sodhi Richman Greer, P.A. 396 Alhambra Circle North Tower 14th Floor Miami, FL 33134 305-373-4000 Fax: 305-373-4099 Email: esodhi@richmangreer.com ATTORNEY TO BE NOTICED Wantman Group, Inc. represented by Gerald F. Richman https://ecf.ftsd.uscourts.gov/cgi-bin/DktRpt.pi71217658263442D1-L_1_0-1 1/12 RAS00000001 5/5/2015 . a domestic company on its on its own behalf of those companies similarly situated V. Defendant Martin E. O'Boyle 23 Hidden Harbour Drive Gulf Stream, Fl33483 an individual Defendant CM/ECF-Live Database-ftsd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Leora Beth Freire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Eric Matthew Sodhi (See above for address) ATTORNEY TO BE NOTICED represented by Mitchell Wayne Berger Berger Singerman Las Olas Centre II 350 E Las Olas Boulevard Suite 1000 Fort Lauderdale, FL 33301 954-525-9900 Fax: 523-2872 Email: mberger@bergersingerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Etan Mark Berger Singerman LLP 1450 Brickell Avenue Suite 1900 Miami, FL 33131 305-714-4360 Fax: 305-714-4340 Email: emark@bergersingerman.com ATTORNEY TO BE NOTICED Steven Douglas Weber Berger Singerman 1450 Brickell A venue Suite 1900 Miami, FL 33131 305-982-4025 Fax: 305-714-4340 Email: sweber@bergersingerman com ATTORNEY TO BE NOTICED Christopher O'Hare represented by Mark Jerome Hanna https ://ecf.ft sd. us courts .gov/cgi-bl n/0 ktR pt. pi? 121765826344201-L_1_ 0-1 2/12 RAS00000002 515/2015 CM/ECF-Live Database-flsd an individual Defendant William Ring an individual Defendant Jonathan O'Boylc an individual Defendant Denise DeMartini an individual https :1/ecf.l sd .us courts .gov/cgl-bi rVD k!R pt. pi ?121765826344201-L _1_ Q-1 GMM Madison P A 401 S. County Road #3272 Palm Beach, FL 33435 5617238284 Email: mhanna@g3mlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Adam Rabin McCabe Rabin, P.A. Centurion Tower 1601 Forum Place Suite 505 West Palm Beach, FL 33401 561-659-7878 Fax: 561-242-4848 Email: arabin@mccaberabin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert Cartwright Glass McCabe Rabin, P.A. 1601 Forum Place Suite 505 West Palm Beach, FL 33401 561 659-7878 Email: rglass@mccaberabin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Adam Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert Cartwright Glass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Daniel DeSouza DeSouza Law, P.A. 1515 N. University Drive Suite 209 Coral Springs, FL 33071 954-551-5320 3112 RAS00000003 5/512015 CM/ECF -Live Database-ftsd Defendant Giovani Mesa an individual Defendant Nicklaus Taylor an individual Defendant Ryan Witmer an individual Defendant Airline Highway, LLC Defendant Commerce GP, Inc. https://ecf.ftsd.uscourts.gov/cgi-blniD ktRpt.pl?121765826344201-L_1_0-1 Email: ddesouza@desouzalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Stuart R. Michelson Stumi R. Michelson 800 SE 3rd Avenue 4th Floor Fort Lauderdale, FL 33316 954-463-6100 Fax 954-463-5599 Email: smichelson@smichelsonlaw. com ATTORNEY TO BE NOTICED represented by Stuart R. Michelson (See above for address) ATTORNEY TO BE NOTICED represented by Stuart R. Michelson (See above for address) ATTORNEY TO BE NOTICED represented by Mitchell Wayne Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Etan Mark (See above for address) ATTORNEY TO BE NOTICED Steven Douglas Weber (See above for address) ATTORNEY TO BE NOTICED represented by Mitchell Wayne Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Etan Mark (See above for address) ATTORNEY TO BE NOTICED Steven Douglas Weber 4/12 RAS00000004 515/2015 Defendant CG Acquisition Co., Inc. Defendant CRO Aviation, Inc. Defendant Asset Enhancement, Inc. Defendant CM/ECF-Live Database-ftsd (See above for address) ATTORNEY TO BE NOTICED represented by Mitchell Wayne Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Etan Mark (See above for address) ATTORNEY TO BE NOTICED Steven Douglas Weber (See above for address) ATTORNEY TO BE NOTICED represented by Mitchell Wayne Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Etan Mark (See above for address) ATTORNEY TO BE NOTICED Steven Douglas Weber (See above for address) ATTORNEY TO BE NOTICED represented by Mitchell Wayne Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Etan Mark (See above for address) ATTORNEY TO BE NOTICED Steven Douglas Weber (See above for address) ATTORNEY TO BE NOTICED Commerce Realty Group, Inc. represented by Mitchell Wayne Berger (See above for address) Lk"'AD ATTORNEY https ://eel. fl sd .us courts .gov/cgi-bl n/0 ktR pt. pi ?12176582634420 1-L _1_ 0-1 5/12 RAS00000005 515/2015 CM/ECF-Uve Database-flsd Defendant Pnblic Awareness Institute, Inc. Defendant Citizens Awareness Foundation, Inc. Defendant Our Public Records, LLC Defendant Stopdirtygovernment, LLC Defendant Commerce Group, Inc. Defendant https ://ecf.fl sd.uscourts .gov/cgi-bi r¥0 ktR pt. pi ?121765826344201-L_ 1_ 0-1 ATTORNEY TO BE NOTICED Etan Mark (See above for address) ATTORNEY TO BE NOTICED Steven Douglas Weber (See above for address) ATTORNEY TO BE NOTICED represented by Daniel DeSouza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Daniel DeSouza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Daniel DeSouza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Daniel DeSouza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Mitchell Wayne Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Etan Mark (See above for address) ATTORNEY TO BE NOTICED Steven Douglas Weber (See above for address) ATTORNEY TO BE NOTICED 6/12 RAS00000006 51512015 , The O'Boyle Law Firm, P.C., Inc. Defendant Christopher O'Hare 2520 A venue Au Solei! Gulf Stream, FL 33483 561-350-7551 CM/ECF-Uve Database-ftsd represented by Adam Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert Cartwright Glass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Mark Jerome Hanna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED 02/12/2015 1 COMPLAINT For Civil RICO against All Defendants. Filing fees$ 400.00 receipt number 113C-7470692, filed by Wantman Group, Inc., Town of Gulf Stream. (Attachments: # 1 Civil Cover Sheet,# 2. Summon(s) Airline Highway, LLC, # 2 Summon(s) Asset Enhancement, Inc,#:! Summon(s) Christopher O'Hare,# 5, Summon(s) Citizens Awareness Foundation, Inc.,# 9_ Summon(s) Commerce GP, Inc.,# 1 Summon(s) Commerce Group, Inc.,# .8. Summon(s) Commerce Realty Group, Inc.,# 2 Summon(s) CRO Aviation, Inc.,# lQ Summon(s) Jonathan O'Boyle, # 11 Summon(s) Martin O'Boyle, # 12 Summon(s) O'Boyle Law Ftrm P.C., Inc.,# U Summon(s) Our Public Records, LLC, # 14 Summon(s) Public Awareness Institute, Inc.,# U Summon(s) Stopdirtygovernment, LLC)(Sodhi, Eric) (Entered 02/12/20 15) 02113/2015 2 Judge Assignment to Judge Kenneth A Marra (lrz) (Entered: 02/13/2015) 02113/2015 3 Clerks Notice to Filer re: Summons(es) cannot be issued. Attorney or ProSe party's return address is not listed. (lrz) (Entered: 02/13/2015) 02113/2015 02/13/2015 NOTICE by Town of Gulf Stream, Wantman Group, Inc. re 1 Complaint,, of Filing (Attachments: # 1 Exhibit A,# 2. Exhibit B, # 2 Exhibit C, #:!Exhibit D, #, 5, Exhibit E, # 9_ Exhibit F) (Sodhi, Eric) (Entered: 02/13/20 15) 5, NOTICE of Filing Proposed Summons( es) by Town of Gulf Stream, Wantman Group, Inc. re 1 Complaint,, filed by Town of Gulf Stream, Wantman Group, Inc. (Attachments: # 1 Summon(s), # 2. Summon(s), # l Summon(s), #:! Summon(s), # 5, Summon(s), # Q Summon(s), # 1 Summon(s), # ~ Summon(s), # 2 Summon(s), # 10 Summon(s), # 11 Summon(s), # 12. Summon(s), # U Summon(s), # 14 Summon(s), # U Summon(s), # 19. Summon(s), # 11 Summon(s), # 1.8. Summon(s), # 12. Summon(s)) (Sodhi, Eric) (Entered: 02/13/2015) 02/18/2015 9. Order Requiring Counsel to Confer and File Joint Scheduling Report. Signed by Judge Kenneth A Marra on 2117/2015. (ir) (Entered: 02/18/2015) 02/18/2015 1 NOTICE of Filing Proposed Summons(es) by Town of Gulf Stream, Wantman https ://eel. fl sd.uscourts .gov/cgi-bl n/D ktR pt. pi ?121765826344201-L_1_ 0-1 7/12 RAS00000007 5/5/2015 02/18/2015 CM/ECF-Live Database-ftsd Group, Inc. re 1 Complaint,, filed by Town of Gulf Stream, W antman Group, Inc. (Attachments:# 1 Summon(s)) (Sodhi, Eric) (Entered: 02/18/2015) .8. Summons Issued as to Airline Highway, LLC, Asset Enhancement, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Citizens Awareness Foundation, Inc., Commerce GP, Inc., Commerce Group, Inc., Commerce Realty Group, Inc., Giovani Mesa, Jonathan O'Boyle, Martin E. O'Boyle, Christopher O'Hare, Our Public Records, LLC, Public Awareness Institute, Inc., William Ring, Stopdirtygovernment, LLC, Nicklaus Taylor, The O'Boyle Law Firm, P.C., Inc., Ryan Witmer. Uua) (Entered: 02/18/2015) --------------------·-- 03/09/2015 2. Defendant's MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM by Giovani Mesa, Nicklaus Taylor, Ryan Witmer. Attorney Stuart R. Michelson added to party Giovani Mesa(pty:dft), Attorney Stuart R. Michelson added to party Nicklaus Taylor(pty:dft), Attorney Stuart R. Michelson added to party Ryan Witmer(pty:dft). Responses due by 3/26/2015 (Attachments:# 1 Text of Proposed Order)(Michelson, Stuart) (Entered: 03/09/20 15) ----------·-~-~·--~--------~---~·-~-----·-···-··-------------------------·----------------------- 03113/2015 lQ MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law by Airline Highway, LLC, Asset Enhancement, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Commerce GP, Inc., Commerce Group, Inc., Commerce Realty Group, Inc., Martin E. O'Boyle. Attorney Mitchell Wayne Berger added to party Airline Highway, LLC(pty:dft), Attorney Mitchell Wayne Berger added to party Asset Enhancement, Inc.(pty:dft), Attorney Mitchell Wayne Berger added to party CG Acquisition Co., Inc.(pty·.dft), Attorney Mitchell Wayne Berger added to party CRO Aviation, Inc.(pty:dft), Attorney Mitchell Wayne Berger added to party Commerce GP, Inc.(pty:dft), Attorney Mitchell Wayne Berger added to party Commerce Group, Inc.(pty:dft), Attorney Mitchell Wayne Berger added to party Commerce Realty Group, Inc. (pty:dft), Attorney Mitchell Wayne Berger added to party Martin E. O'Boyle(pty:dft). Responses due by 3/30/2015 (Berger, Mitchell) (Entered: 03/13/20 15) 03/13/2015 11 Notice of Pendency of Other Action by Airline Highway, LLC, Commerce Group, 03/16/2015 Inc., CG Acquisition Co., Inc., Commerce Realty Group, Inc., Martin E. O'Boyle, Commerce GP, Inc., Asset Enhancement, Inc., CRO Aviation, Inc. (Berger, Mitchell) (Entered: 03/13/20 15) .12. MOTION to Adopt/Join 10 MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM by Citizens Awareness Foundation, Inc., Denise DeMartini, Our Public Records, LLC, Public Awareness Institute, Inc., Stopdirtygovernment, LLC. Attorney Daniel DeSouza added to party Citizens Awareness Foundation, Inc. (pty:dft), Attorney Daniel DeSouza added to party Denise DeMartini(pty:dft), Attorney Daniel DeSouza added to party Our Public Records, LLC(pty:dft), Attorney Daniel DeSouza added to party Public Awareness Institute, Inc.(pty:dft), Attorney Daniel DeSouza added to party Stopdirtygovernment, LLC(pty:dft). (DeSouza, Daniel) (Entered: 03/16/2015) ------·-----------------------------------·-·------------------------------ 03/16/2015 U MOTION to Adopt/Join 10 MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM andinc01porated Memorandum of Law, 2. https :1/ecf. ft sd. us courts. gov /cgi-bi n/D ktR pt. pi? 121765826344201-L _1_ 0-1 8/12 RAS00000008 515/2015 CM/ECF-Live Database-ftsd Defendant's MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM, 12 MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, FOR F AlLURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM, 1 Complaint,, by Jonathan O'Boyle, William Ring, The O'Boyle Law Firm, P.C., Inc .. Attorney Adam Rabin added to party Jonathan O'Boyle(pty dft), Attorney Adam Rabin added to party William Ring(pty:dft), Attorney Adam Rabin added to party The O'Boyle Law Firm, P.C., Inc.(pty:dft). (Rabin, Adam) (Entered: 03/16/20 15) 03/16/2015 li NOTICE of Compliance by Wantman Group, Inc., Town of Gulf Stream (Sodhi, Eric) (Entered 03116/20 15) -----------r--------------------------------------------------·------ 03/16/2015 U NOTICE of Attorney Appearance by Mark Jerome Hanna on behalf of Christopher O'Hare. Attorney Mark Jerome Hanna added to party Christopher O'Hare(pty:dft). (Hanna, Mark) (Entered: 03/16/2015) --------1--+------------------------------------------------------- 03117/2015 l!i NOTICE of Compliance by Wantman Group, Inc., Town of Gulf Stream (Sodhi, Eric) (Entered: 03117/20 15) ----------------r------------------------------------------------------------------------------------------- 03/18/20 15 17 Defendant's MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM, U MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM , 12 MOTION, 12. MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTIOI\ TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM, MOTION TO DISMISS 1 Complaint,:± Notice (Other) FOR FAILURE TO STATE A CLAIM (Responses due by 4/6/2015) by Christopher O'Hare. (Hanna, Mark) (Entered 03/18/2015) -----·----+----+----------------------------------------------------- 03/19/2015 ll. NOTICE of Attorney Appearance by Etan Mark on behalf of Airline Highway, LLC, Asset Enhancement, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Commerce GP, Inc., Commerce Group, Inc., Commerce Realty Group, Inc., Martin E. O'Boyle. Attorney Etan Mark added to party Airline Highway, LLC(pty dft), Attorney Etan Mark added to party Asset Enhancement, Inc.(pty:dft), Attorney Etan Mark added to party CG Acquisition Co., Inc.(pty:dft), Attorney Etan Mark added to party CRO Aviation, Inc.(piydft), Attorney Etan Mark added to party Commerce GP, Inc.(piy:dft), Attorney Etan Mark added to party Commerce Group, Inc.(pty:dft), Attorney Etan Mark added to party Commerce Realty Group, Inc. (pty:dft), Attorney Etan Mark added to party Martin E. O'Boyle(pty:dft). (Mark, Etan) (Entered 03/19/2015) ---·-----------------!----------------------------------------------··---------------------------............. -. 03/19/2015 12. Statement of: Corporate Disclosure Pursuant to Federal Rule of Civil Procedure 7.1 by Airline Highway, LLC (Mark, Etan) (Entered 03/19/2015) -----------·-------r--------.. -----·----------·------------------------------------------------.. ------------ 03/19/2015 2.Q Statement of: Corporate Disclosure Pursuant to Federal Rule of Civil Procedure 7.1 by Commerce GP, Inc. (Mark, Etan) (Entered: 03/19/2015) -------+----____________________ , ______________________ ~------------ 03119/2015 21 Statement of: Corporate Disclosure Pursuant to Federal Rule of Civil Procedure 7.1 by CG Acquisition Co., Inc. (Mark, Etan) (Entered: 03/19/20 15) https :1/ecf.l sd.uscourts .gov/cgi-bi IYD ktR pt. pi ?121765826344201-L _1_ 0-1 9/12 RAS00000009 5/5/2015 03/19/2015 22 St 7. CM/ECF-Live Database-ftsd atement of: Corporate Disclosure Pursuant to Federal Rule of Civil Procedure 1 by CRO Aviation, Inc. (Mark, Etan) (Entered: 03/19/20 15) -------r---- 03/19/2015 23 03/19/2015 24 03/19/2015 25 ·--~- 03/20/2015 26 ~-----r-- 03/20/2015 27 03/23/2015 28 ---· 03/23/2015 29 --- 03/23/2015 30 ----- 03/23/201 5 .ll -·------ 03/23/20 I 5 32 -·--· 03/23/201 5 33 St atement of: Corporate Disclosure Pursuant to Federal Rule of Civil Procedure by Asset Enhancement, Inc. (Mark, Etan) (Entered: 03119/2015) 7.1 -- St atement of: Corporate Disclosure Pursuant to Federal Rule of Civil Procedure 1 by Commerce Realty Group, Inc. (Mark, Etan) (Entered: 03/19/2015) 7 . . St atement of: Corporate Disclosure Pursuant to Federal Rule of Civil Procedure 1 by Commerce Group, Inc. (Mark, Etan) (Entered: 03/19/2015) 7. N OTICE of Attorney Appearance by Robert Cartwright Glass on behalf of nathan O'Boyle, William Ring, The O'Boyle Law Firm, P.C., Inc .. Attorney Jo R c obert Cartwright Glass added to party Jonathan O'Boyle(pty:dft), Attorney Robert artwright Glass added to party William Ring(pty:dft), Attorney Robert Cartwright ass added to party The O'Boyle Law Firm, P.C., Inc.(pty:dft). (Glass, Robert) Gl (E ntered: 03/20/20 15) --- u Re nopposed MOTION for Extension of Time Motion for Leave to File Omnibus sponse to Defendants' Motions to Dismiss; Motion for Enlargement of Time to e the Omnibus Response; and Motion to Exceed Page Limit of the Omnibus sponse by Town of Gulf Stream, Wantman Group, Inc .. Responses due by 6/2015 (Attachments:# 1 Text of Proposed Order)(Sodhi, Eric) (Entered: Fil Re 4/ 03 /20/2015) c D orporate Disclosure Statement by Citizens Awareness Foundation, Inc. (DeSouza, aniel) (Entered 03/23/2015) -·· c orporate Disclosure Statement by Our Public Records, LLC (DeSouza, Daniel) ntered: 03/23/20 15) (E ·---- c orporate Disclosure Statement by Stopdirtygovernment, LLC (DeSouza, Daniel) ntered: 03/23/20 15) (E --c D orporate Disclosure Statement by Public Awareness Institute, Inc. (DeSouza, aniel) (Entered. 03/23/2015) 1-·· E NDORSED ORDER granting 27 Motion for Extension of Time and motion to large page limit of omnibus response Re: lQ MOTION TO DISMISS 1 en c of omplaint FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum Lmv filed by CG Acquisition Co., Inc., Commerce GP, Inc., Martin E. O'Boyle, ommerce Realty Group, Inc., Asset Enhancement, Inc., Airline Highway, LLC, ommerce Group, Inc., CRO Aviation, Inc., 2. Defendant's MOTION TO DISMISS Complaint, FOR FAILURE TO STATE A CLAIM filed by Ryan Witmer, c c 1 Ni cklaus Taylor, Giovani Mesa. Responses due by 4/6/2015. Signed by Judge enneth A. Marra on3/23/2015. (ir) (Entered 03/23/2015) K St atement of: Corporate Disclosure by Wantman Group, Inc. (Richman, Gerald) (E ntered: 03/23/20 15) ----- 04/06/201 5 34 F D c RESPONSE in Opposition re lQ MOTION TO DISMISS 1 Complaint,, FOR AlLURE TO STATE A CLAIM and Incorporated Memorandum of Lmv, 2. efendant's MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A LAIM, 13. MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, https :1/ecf.ft sd.uscourts .gov/cgt-bi n/0 k!R pt. pi ?121765826344201-L _1_ 0-1 10112 RAS00000010 5/5/2015 CM/ECF-Live Database-ftsd FOR F AlLURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM, 12 MOTION, 12 MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM, 11 Defendant's MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM, MOTION TO DISMISS 1 Complaint,, 1 Notice (Other) FOR FAILURE TO STATE A CLAIM filed by Town of Gulf Stream, Wantman Group, Inc .. Replies due by 4/16/2015. (Sodhi, Eric) (Entered: 04/06/20 15) 04114/2015 RESPONSE/REPLY to 34 Response in Opposition to Motion,, by Giovani Mesa, Nicklaus Taylor, Ryan Witmer. (Michelson, Stuart) (Entered: 04/14/2015) 04/16/2015 36 REPLY to Response to Motion re 10 MOTION TO DISMISS 1 Complaint,, FOR 04/16/2015 04/22/2015 F AlLURE TO STATE A CLAIM and Incorporated Memorandum of Law, 13. MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM, 12 MOTION, 1.2 MOTION to Adopt/Join lQ MOTION TO DISMISS 1 Complaint,, FOR FAILURE TO STATE A CLAIM and Incorporated Memorandum of Law, 2. Defendant's MOTION TO DISMISS l Complaint, FOR FAILURE TO STATE A CLAIM filed by Airline Highway, LLC, Asset Enhancement, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Citizens Awareness Foundation, Inc., Commerce GP, Inc., Commerce Group, Inc., Commerce Realty Group, Inc., Denise DeMartini, Jonathan O'Boyle, Martin E. O'Boyle, Our Public Records, LLC, Public Awareness Institute, Inc., William Ring, Stopdirtygovernment, LLC, The O'Boyle Law Firm, PC., Inc .. Attorney Steven Douglas Weber added to party Airline Highway, LLC(pty:dft), Attorney Steven Douglas Weber added to party Asset Enhancement, Inc.(pty:dft), Attorney Steven Douglas Weber added to party CG Acquisition Co., Inc.(pty:dft), Attorney Steven Douglas Weber added to party CRO Aviation, Inc.(pty:dft), Attorney Steven Douglas Weber added to party Commerce GP, Inc.(pty:dft), Attorney Steven Douglas Weber added to party Commerce Group, Inc.(pty:dft), Attorney Steven Douglas Weber added to party Commerce Realty Group, Inc.(pty:dft), Attorney Steven Douglas Weber added to party Martin E. O'Boyle(pty:dft). (Weber, Steven) (Entered: 04116/20 15) 37 RESPONSE/REPLY Supplemental to Plaintiffs' Omnibus Response to Defendants' Motions to Dismiss and Notice of Joinder by Christopher O'Hare. (Hanna, Mark) (Entered: 04/16/20 15) 38 Joint MOTION for Extension of Time to file Joint Scheduling Report and Joint Discovery Report by Town of Gulf Stream, Wantman Group, Inc .. Responses due by 5/1112015 (Attachments:# 1 Text of Proposed Order Proposed Order)(Sodhi, Eric) (Entered: 04/22/20 15) 04/23/2015 39 ENDORSED ORDER granting 38 Motion for Extension of Time to file joint scheduling report. Joint Scheduling Report due by 4/24/2015. Signed by Judge Kenneth A. Marra on 4/23/2015. (ir) (Entered: 04/23/2015) https :1/ecf.ftsd. us courts. gov /cgi-bl n/D ktR pt. pi ? 121765826344201-L _1_ 0-1 11/12 RAS00000011 515/2015 CM/ECF-Uve Database-ftsd ·04/2'4/20 15 40 Defendant's MOTION to Stay Discovery and the Exchange of Initial Disclosures by Airline Highway, LLC, Asset Enhancement, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Citizens Awareness Foundation, Inc., Commerce GP, Inc., Commerce Group, Inc., Commerce Realty Group, Inc., Denise DeMartini, Giovani Mesa, Jonathan O'Boyle, Martin E. O'Boyle, Christopher O'Hare, Christopher O'Hare, Our Public Records, LLC, Public Awareness Institute, Inc., William Ring, Stopdirtygovernment, LLC, Nicklaus Taylor, The O'Boyle Law Firm, P.C., Inc., Ryan Witmer. Responses due by 5/11/2015 (Weber, Steven) (Entered 04/24/2015) 04/24/2015 SCHEDULING REPORT-Rule 26(f) by Town of Gulf Stream, Wantman Group, Inc. (Sodhi, Eric) (Entered: 04/24/20 15) https ://ecf.fl sd. us courts. gov/cgi-bi n/D ktR pt. pi ?121765826344201 • L _1_ 0-1 12/12 RAS00000012 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 1 of 49 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.: ________ _ TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities simi larly situated, and WANTMAN GROUP, INC ., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, vs. MARTIN E. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RfNG, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, an individual , GIOV ANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP , INC., CG ACQUISITION CO., INC., CRO AVIATION, INC ., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS , LLC, STOPDIRTYGOVERNMENT, LLC , COMMERCE GROUP, INC., and THE O 'BOYLE LAW FIRM, P.C., INC., Defendants. I -------------------------- CLASS ACTION COMPLAINT I. Introduction. CLASS ACTION I. The TOWN OF GULF STREAM ("Gulf Stream" or "Town") brings this lawsuit as a class action, by and on behalf of state and local municipalities, municipal agencies , and their 1 RAS00000013 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 2 of 49 private contractors located in the state of Florida that have been victimized by a scheme to defraud and extort being carried out by a RICO Enterprise created by , and composed of, the Defendants. Through their RICO Enterprise, the Defendants have associated-in-fact with the sole purpose of unlawfully and illegally extracting settlement payments from the Class Members by first using the mails and the wires to deliver and advance frivol o us public record s reque st that are often intentionally inconspicuous. Then, the Defendants, thro ugh their RICO Enterprise, immediately use the mail s and the wires to extort their victims by demanding that these municipal entities and agencies immediately settle with them and pay their allegedly incurred attorneys' fees and costs as provided for in the public records statute, or, face protracted litigation and a flurry of additional frivol ous public records request and laws uits. The amount demanded by the Defendants to reimburse them for their attorneys' fees and costs is fraudulent- far exceeding the actual costs and fees incurred in the frivolous public record s request, resulting in a profit windfall for the Defendants. At least one Court has labeled these actions as an "unreasonable and flagrant abuse of the state [Public Records Act)," amounting to "nothing more than a scam.'' (See ~18, p.6, Final Order Denying Relief Under Public Record s Act, entered by the Hon. Jack M. Schemer, Circuit Court Judge, Duval County, Florida, attached hereto as Exhibit "A."). 2. The Defendants are prolific in their efforts-from March 5, 2013, through July 17 , 2013 , the RICO Enterprise filed over 400 public records request with Gulf Stream alone. From August of 2013 through present, the RICO enterprise filed more than 1,5 00 additional public records requ ests bring ing the total number of public record s requests to almost 2,000. RICHMAN GREER, P.A . Miami• West Palm Beach 2 RAS00000014 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 3 of 49 (See the Public Records Request Log attached hereto as Composite Exhibit "B").1 For purposes of context-Gulf Stream is a tiny community, having a po pulation of 974 residents and o nl y 17 full time e mpl oyees (four of whom work at Town Hall), w ith a land mass of less th a n one square mile. 3. T he Defendant s also target private entities that have co ntracted w ith municipalities, arguing that by virtue of their bus in ess relationship with a public e ntity , the y a re subject to the public record s laws of Florida. The Wantman Group, Inc. brin gs this lawsuit as a class action o n behalf of itself and o ther private entities that have been victimized by Defendants ' scheme to defraud and extort. 4. The Wantman Group is a multidisciplinary consulting firm which prov ides engineering, surveying and mapping, and environmental and planning services. The Wantman Group ha s s ix office s throughout the state of F lo rida . As part of its busi ness, the Wantman Group has s ig ned contracts with various municipa lities a nd government agencies. For example, the Wantman Group signe d a contract with the South Florida Water Management District, ("SFWMD") through which it was to prov id e professional serv ices to the SFWMD. II. Jurisdictional Allegations. 5. As this is a n action broug ht under 18 U .S.C. §§ 196 1, 1962 and 1964, thi s Court has o rigin a l jurisdiction over the subject matter of thi s action purs uant to 28 U .S .C. §§ 133 1. Add iti onall y , this Court has orig inal jurisdicti o n over the su bject matter of thi s acti o n purs uant to 18 U.S.C. §§ 1964 (a)-(c). F inally, this Court ha s personal jurisdiction over the Defendants pursuant to 18 U.S.C. § 1965. 1 Thi s chart includ es all public records request made to the Town , onl y a handful of whi ch we re not done by the Defendants. RICHMAN GREER, P.A. Mlam l • West Palm Beach 3 RAS00000015 Case 9:1 5-cv-8 0182-XXXX Docu me nt 1 Entered on FL SD Docket 02/12/201 5 Page 4 of 49 6. Venue is appropriate in thi s di strict purs uant to 18 U.S .C. § 1965(a) as well as 28 U.S.C. § 1391 (b)(l ) and (2), as the Defend ants res id e in thi s di strict and a substanti al part of the events or omissions giv in g rise to Plaintiffs ' claims occurred in thi s di strict. III. Parties . 7. Plaintiff , TOWN OF GULF STREAM , is a municipality organized a nd ex istin g under th e law s of the State of Florida. 8 . Pl a intiff , WANTMAN GROUP, INC., is a Fl orida corporation, which mainta in s its princ ipal place of business at 2035 Vista Pkwy, Suite 100 , West Palm Beach, Florida, 33411 in Palm Beach County, F lorida. 9. Defendant MARTIN E. O 'BOYLE, is a re s id e nt of Fl orida, residing in Pa lm Beach County, and more sp ecifically, in the Town of Gulf Strea m . Ma rtin O 'Boy le is also: (i) the Presi dent and owner of Defenda nts Commerce Gro up, Inc., Commerce G P, Inc., Commerce Realty Group, Inc., and CRO Aviation, Inc.; (ii) the so le member of Defenda nts Stopdirtygovernment, LLC, Our Public Rec ords, LLC and Airline High way, LLC; a nd (iii ) a directo r of Defendant Public Awareness Institute, Inc. 10. Defendant WILLIAM F. RING ("Ring") is an attorn ey licensed to practice law in the state of Florida, and upon information and belief, is practicing with and a partner or shareholder of De fendant The O 'Boyle Law Firm, P.C., Inc., as well as its regi stered agent. Rin g is a lso: (i) Vice-president of Defe ndants Comme rce Group, In c., CG Acquisition Co., Inc., Commerce Realty Group, Inc., and Asset Enhancement, In c.; (ii) the founding President of Defend ant Citizens Awareness Fo undation, Inc., (iii) and the re gistered agent fo r Defendants Our RICHMAN GREER, P.A. Miami • West Palm Beach 4 RAS00000016 Case 9 :15-cv-80182 -XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 5 of 49 Public Reco rd s, LLC , and Stopdirtygovernment, LLC . Ring ha s worked for Martin E. O 'Bo y le in some capacity for at least 25 years. I I. Defendant C HRISTOPH E R O 'HARE ("O 'Hare") is a resident of Florida, re s iding in Pa lm Beach County, and more s pecifical ly, the Town of Gulf Stream. O'Hare is a lso a client of Defendant The O 'Boyle Law Firm , P.C ., Inc. 12. Defendant JONATHAN R. O 'BOYLE is a resident of Florida, residing in Palm Beach County, and whi le not an attorney that is licensed to practice law in Florida; he is the founding principal of Defendant The O 'Bo yle Law Firm, P.C., Inc. and currentl y its Pres ident, so le director and manager. Jonathan O'Boyle is the son of Defendant Martin O 'Boyle, and is also a director of Defendant Public Awareness Institute, Incorporated. 13. Defendant DENISE DEMARTINI ("DeMartini") is a resident ofFlorida, residing in Martin County. DeMartini is also: (i) an employee of Defendant Commerce Group, Inc.; (ii) Secretary of D efendant Commerce Realty Group, Inc.; and (iii) the current President and director of Defendant C itizens Awareness Fo undati on, Inc. DeMartini, while not a lawye r, managed the operations of Defendant The O 'Boyle Law Firm durin g the time at iss ue in thi s s uit. Like Defendant Ring, DeMartini has worked for Martin O 'Boyle for more than 25 years. 14. Defendant COMMERCE GROUP, INC. ("Commerce Group") is a Fl o rida Corporation with its principal place of business located at 1280 W Newport Center Dr., Deerfield Beach, Florida 33 442. Commerce Group is run by Martin O 'Boyle . 15 . Defendant C ITIZENS AWARENESS FOUNDATION, INC. ("C AFI"), purports to be a Florida non-profit corporation, with its principa l p lace of bus iness located at 1280 West RICHMAN GREER, P.A. Miami• West Palm Beacll 5 RAS00000017 Case 9 :15-cv-80182-XXXX Document 1 Entered o n FLSD Docket 02/12/2 015 Page 6 of 49 Newport Center Drive, Deerfield Beach , F lorida 33442. Defendant Martin O 'Bo yle , together with hi s so n Jonathan O'Boy le and Defend ant Ring, created CAF I in or a round January of2014. 16 . Defendant STOPD IRTYGOVERNMENT, LLC, ("Stopdirtygovernment" or "SDG") is a Florida lim ited li a bility co mp any with its sole member being Martin O'Boyle, and it s principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442 . 17. Defendant OUR PUBLIC RECORDS , LLC, ("OPR") is a F lo rida limited liability company w ith it s so le member being Martin O 'Boyle , and it s principal place of bu s in ess located at 1280 West Newp ort Center Drive, Deerfield Beach, Florida 33442 . Defendant Martin O 'Boyle created OPR in or around April of 20 13. 18. Defendant PUBLIC AWARENESS INSTITUTE, INC. ("PAl ") purports to be a Florida non-profit corporation with its principa l place of business located at 1280 West Newport Center Drive, Deerfield Beach, F lori da 33 442. Defendants Martin O'Boyle and Jonathan O 'Boyle , along with their family member Shei la O'Boyle (wife of Martin and mother o f J onath an), are the directors ofPA1, w hi ch was created in or around May of20 13. 19. Defendant AIRLINE HIGHWAY, LLC ("AH") is a Florida limited liability company with it s sole member being Martin O 'Boyle, and its principal place of bu s ines s located at 1280 We st Newport Center Drive, Deerfield Beach, F lorida 33442. 20. Defend ant, COMMERCE GP, INC. ("Commerce GP"), is a Florida profi t corporation w ith its princ ip a l place of bu s in ess located at 1280 West Newport Cente r Drive, Deerfield Beach, F lorida 33442. Defendant Martin O 'Boyle is the Pres ident of Commerce GP. RICHMAN GREER, P .A. M ia mi • West Palm Beach 6 RAS00000018 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 7 of 49 21. Defendant CG ACQUISITION CO., INC. ("CGA "), is a Flo rid a profit corpo ration with its princ ip a l place of business located at 1280 West Newp01t Center Drive, Deerfield Beach , F lo rid a 33442. Defendant Martin O 'Boyle is the Director of CGA w ith Defendant Ring being its Vice-President. 22. Defendant, CRO AVIATION , INC. ("CRO"), is a F lorida profit corporati o n with its principal pl ace of bu siness located at 1280 West Newport Center Drive, Deerfield Beach , F lorida 33442. Defendant Martin O 'Boyle is the Presid e nt ofCRO. 23. Defendant, ASSET ENHANCEMENT, INC. ("AE"), is a F lorida profit corporation wi th its princ ip a l place of business locat ed at 1280 West Newport Center Drive, Deerfield Beach, F lorida 33442. Defendant Martin O'Boyle is the Pres id ent of AE wi th Defendant Ring being th e Vice-President. 24. Defendant, COMMERCE REALTY GROUP, INC. ("CRG"), is a Florida profit corporation w ith its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, F lorid a 33442. Defendant Martin O'Boyle is the Pres id ent, Defendant Ring the Vice-President and D efendant DeMartini the Secretary of C RG. 25. In ad diti o n to the fact that they are all ho used at th e offices of Martin O'Boyle's compa n y Commer ce Gro up , Defendants O 'Boyle, Ring, DeMartini, CG, CAF I, SDG, OPR, PAl , AH , Comm erce G P , CGA, C RO , AE, C RG a ll sha re the inte rn et domain commerce-group.com and utili ze the email address records@ commerce-group.com. 26. Defendant, THE O 'B OYLE LAW FIRM, P.C., INC., ("O 'Boyle Law F irm"), is a foreign corporation , a law firm , h aving its a lle ged princ ipa l address located at 100 1 Broad Street , Johnstown, Pennsylvania and a Florida office at I 286 West Newport Center Drive, Deerfield RICHMAN GREER, P.A. Miam i • West Pa lm Beach 7 RAS00000019 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 8 of 49 Beach, Florida 33442. Defendan t J onathan O'Boyle is the so le officer and director of the O 'Boyle Law Firm, but is not licensed to practice law in the State of Florida . While serving as an officer of Defendant CAFI, a client of the O 'Bo y le Law Firm, Defendant DeMartini simultaneously managed the O 'Boyle Law Firm's operations. After resigning as an officer of CAFI, but retaining his position as an officer of several other firm clients, including Defendants CO, CGA, CRG and AE, Defendant Ring is now a partner with the O 'Boyl e Law Firm. 27. Defendant, RYAN WITMER, is an attorney licensed to practice law in the state of F lorida and a resident of New York. A law school classmate of Jonathan O'Boyle, Witmer helped to establish the O 'Boyle Law Firm and thereafter filed and prosecuted scores of public records lawsuits throughout the State of Florida against the putative class members on behalf of clients of the O'Boyle Law Firm, including, but not limited to , Defendants Martin O'Boyle, O'Hare and CAFI. 28. Defendant, GIOVANI MESA, is an attorney licensed to practice law in the state of Florida, practicing with the O 'Boyle Law Firm. Me sa has filed and prosecuted scores of public records laws uits throughout the State of Florida against the putative class members on behalf of clients of the O'Boyle Law Firm including, but not limited to, Defendants Martin O'Boyle, O'Hare and CAFI. 29. Defendant, NICKALAUS TAYLOR, is an attorney licensed to practice Jaw in the state of Florida since 2008, who practices with the O'Boyle Law Firm. Taylor has fil ed and prosecuted scores of public records lawsui ts throughout the State of Florida against the putative class members on behalf of clients of the O 'Boyle Law Firm including, but not limited to, RICHMAN GREER, P.A. Miami• West Palm Beach 8 RAS00000020 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 9 of 49 Defendants Martin O 'Boyle, O'Hare, Commerce Group, CAFI, OPR, A H, CGA, CRO, AE and CRG. IV. Appropriateness of Class Action Treatment. 30. Plaintiffs bring this action on behalf of themselves and a ll others s imilarly situated pursuant to Fed. R. Civ. P . 23(b)(3). This action satisfies the numerosity, commonalit y, typicality, adequacy, predominance and superiority requirements of Rule 23. 31 . The proposed Class is defined as: All state or local municipalities, municipal agencies, or private contractors in the State of Florida, who have been served with a public records request by any of the Defendants and who either (a) paid a settlement amount in conjunction with, or to resolve the public records request; or (b) incurred attorneys ' fees and costs to respond to or litigate against public records requests from any of the Defendants . 32 . P la intiffs re se rve the right to modify or amend the definition of the propose d C lass before the Court determines whether certification is appropriate. 33. Plaintiffs do not currently know the exact number of Class Members or their identities. However, Plaintiffs believe that Class Members number in the hundreds, and are thu s sufficiently numerous and geographically di spersed so that joinder of all Class Members is impracticable. 34. Attached hereto as Composite Exhibit "C" are a series of charts listing the current known potential C lass Members, along with the style , case number, and county where the lawsu its were brought against them as part of the scheme to defraud and extort. As compos ite Exhibit "C" illustrates, there are at least 121 different C lass Members (including Plaintiffs) RICHMAN GREER, P.A. Mlami • West Palm Beach 9 RAS00000021 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 10 of 49 composed of a ppro x imatel y 3 1 municipalities or agencies, and 90 private contractors m suits brou g ht in nearly 2 dozen counties around the State.2 35. Plaintiffs further believe that each C lass Member, includin g themselves, have claims with a common o ri gin and share a common ba s is. The claim s of all C la ss Members, as well as the Plaintiffs, originate from th e Defendants' pattern of racketeering activity and use of the RICO Enterprise to carry out such activities. 36. The claims of the Plaintiffs are typical of the Class, in that Plaintiffs, like all C la ss Members, were injured in their business or property by reason of the Defendants' pattern of racketeering activity carried out by the RICO Enterpri se, including the predicate acts of mail fraud , wire fr a ud , and exto rti o n. 37. The RICO Enterprise, created by the Defendants, used the mail and the wires to se nd o ut what is usually a n inconspicuo us and friv o lo us public records requ est to the C lass Members, often times under the guise of a false no n-profit organization, and with a state d or implied purpose of advancing the public's intere st in government tran sparency.3 In reality, this bogus public records request was an essential first-step of the RICO Enterprises' schem e to defraud and extort money from the class members-it was nothing more than bait, a records request for documents that the RICO Enterpri se had no intenti o n o f revi ewin g, and instead , intended to be overlooked or missed by the receiving class member so as to tri gger the next st e p in th e RICO Enterpri ses' scheme. 2 Exhibit "C" reflects suits broug ht by only D efend ant CAFI , a lb eit, in advan cin g the goal of the RICO Enterprise. Upo n information and belief, the number of class members w ill inc re ase substant iall y. 3 The purpose for d isguising the identity of the requesting party was two fold:(!) to foo l the recipi ent into thinking a not-for-profit had a gen uine desi re to see th e docum ents requested; and (2) to try and circumvent the conditional payment prov id e d for in the Pub li c Record s law a ll owing a munic ipa lity to conditio n production of th e requ ested documents on payment of costs and expenses. (See, Fl a. Stat. § 119 .07 ( 4)(d)). RICHMAN GREER , P.A. Miami • West Palm Beach 10 RAS00000022 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 11 of 49 38. After the bogus record s request was se nt and hopefull y overlooked, the RICO Enterprise would then use th e mail and the wires to: (i) demand a settlement of the record s request in excess of the actual attorneys' fee s and costs incurred by th e Defendants; or (ii) file a frivolous laws uit against the recipient of the bogu s record s request followed by the demand for settlement. The settlement d e mand was directl y or indirectl y accompanied by a threat of harm to property in the form of more bogus records request s, to be followed up with even more frivol o us litigation . 39. This racketeering conduct damaged and injured the class members in three ways: (i) by requiring additional expenditures by the class members (i.e. hiring additional staff, pay in g overtime, etc.) to review and respond t o the ma ss ive volume of bogus record s requests ;4 (ii) by coercing and so metimes extracting an inflated settlement amount from the Class Member to "make thi s go away,"; a nd (iii) by requiring the Class Member to defend agai nst several spurious lawsuits brought only to increase the pressure and ultimate ly force th e Class Me mber to accept the extorted settlement amount. 40. Purs uant to Rul e 23(b)(3), the re are num erous question s of law and fact commo n to the Class and thos e common question s predominate over any questions affecting o nly individual C lass Members, including whether Defendants: a. are associated , organized and actin g as an enterpri se with the purpose of carrying o ut a sc hem e to de fraud and exto rt ; b. devi sed , followed , and actively pursued a scheme to defraud and extort, and wh at th e sc heme to defraud a nd extort cons isted o f, including; • 4 See note 3 , supra RICHMAN GREER, P.A. Miami• West Palm Beach 11 RAS00000023 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 12 of 49 1. manipulation o f the public rec o rd s laws of F lorida for finan c ia l ga in , including the filing of frivo lou s, mean ingless, and often inco ns picuou s pub lic records requ est with no real need o r intention to ever review o r obtain the public record s, but rath e r, simply set the stage for the nex t step in the sche me to defraud and extort; 11. advance fraudulent and inflated settlement demands as a matter of practice, po licy, and p a ttern by f raudul ently misrepresenting atto rneys' fee s incurred by the O'Boyle Law F irm and it s co -Defendant c li ents, including a s ubstanti al profit margin to be shared between th e O'Boyle Law Firm a nd it s so-ca ll e d "non-profit" clients; 111. as a matter o f practice, po li cy, and patte rn , extorted comp li ance w ith th e fraudulent and inflated settlement demands by threatening score s of additional frivo lous public records request s to be followed by scores of addit ional f raud ulent and inflated settlement demands w it h the so le intended consequen ce of the class members hav in g to spend resources o n respondi ng to the bogus public records request and defending the frivolous liti gation; iv. set up false and fraudulent companies, both n on-profit and profit, in furthe rance of the scheme to defraud , and us in g the mails an d w ires to incorporate, indoctrinate, or otherwise create these bogus companies in the State of Florida; RICHMAN GREER, P.A. Mlaml • West Palm Beach 12 RAS00000024 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 13 of 49 v. established a captive Florida law firm run by a non-Florida attorney for the so le purpose of generating attorneys' fees from settlements demanded through the use o f the mails and wires; c. have engaged in conduct that constitutes a pattern of racketeering activity m furtherance of their scheme to defraud and extort; d. committed the predicate criminal acts of mail fraud , wire fraud , or extortion in furtherance of their scheme to defraud and extort; e. made false statements or misrepresentations of material fact regarding their id entity so as to induce Defendants to act in reliance by foregoing the assessment of a special service charge to which Defendants would otherwise have been entitled under Fla.Stat. § 119.07(4)(d); 41. Additionally, another common question of law and fact is the appropriate measure of damages sustained by Plaintiffs and other Class Members. 42. A c lass action is superior to other methods for the fair and efficient adjudication of thi s controvers y. Treatment as a class action will permit a large number of similarly situated persons to adjud ic ate their common claims in a single forum simultaneously, effectively, and without the duplication of effort and expense, and risk of incons istent rulings that numerou s individual actions would cause. C lass treatment will a lso permit the adjudication of relatively s mall claims by Class Members who otherwise might not be able to afford to litigate their claims individually. Thi s class action presents no difficulties in management that would preclude maintenance as a class action. RICHMAN GREER, P.A. M ia mi • West Pa lm Beach 13 RAS00000025 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 14 of 49 43. This forum is particularly desirable for the prosecution of this class action because Defendants all are residents in , or maintain a principal place of business in , thi s district, and presumably maintain many of those corporate record s which are particularl y germane to this action here. As a result of the foregoing, litigating on a class action basis in this forum will likely decrease the cost of di scovery and pro se cution, generally. 44. Plaintiffs have suffered the harm alleged on behalf of the Class, and have no interests antagonistic to the interests of any other Class Members. They are committed to the prosecution of this action and have retained counsel experienced in the prosecution of class actions, and in complex commercial actions in particular. Accordingly, Plaintiffs are adequate representatives and will fairly and adequately protect the interest s of the Class. Plaintiffs are not aware of any other pending litigation concerning this controversy that involves Class Members , other than the individual cases brought by Defendants to enforce the frivolous and fraudulent public records requests. 45. Finally, the Class is readily definable. V. General Allegations. a. Florida Public Records Law 46. Pursuant to Chapter 119, Florida Statutes, commonly referred to as the Sunshine law, the legisl ature has determined that: "It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency." RICHMAN GREER, P.A. Miami • West Palm Beach 14 RAS00000026 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/1 2/2015 Page 15 of 49 47. F lorid a p r id es itself on the transparency required of its e lected official s , and it s e lected offic ia ls often pride themselves on providing s uch transparency to th ose that have e lected them to serve. 48. Accordingly, pursuant to section 119.0 7, a ll qualifying en tities: "shall permit the record(s) to be inspected a nd copied by any person desiring to do so, at any reasonable time, under reasonable conditions .... " In f urth erance of thi s transparency, "a custodian of public records and hi s or her designee must acknowledge requ est s to inspect o r copy records promptly a nd respond to s uch requests in good faith. A good faith re sponse includes making reasonab le efforts to determine from other officers or e mpl oyees whether such a record ex ists and, if so, the locatio n at which the record can be accessed." 49. The Public Records Act authorizes a custodian to collect a fee , prior to di sc losin g th e records , for the cost of copying the records . F la . Stat. § 11 9.07(4) (providing the custod ian "shall furnis h a copy ... of the record upon payment of the fee prescribed by law"). The custodian may a lso collect a special service cha rge for requests that "require extensive use of information technology re so urces or extensive clerical or supervisory ass istance .... " (F la . Stat. § 11 9.07(4)(d)). 50. Chapter 119 a lso extends the transparency requireme nt, as well as an ob li gation to re spond to public records request, to a "contractor," defined as "an individua l, partnership, corporation , or business entity that enters in to a contract for services with a public agency and is acti ng o n behalf of the public agency .... " See section 119.0701. 51. In addit ion to criminal penaltie s, public officers (or "contractors") are subject to prevai ling party attorneys' fees in c ivil court up on a s howing of "unlawfu l refu s [a l] to permit a RICHMAN GREER, P.A . Mlaml• West Palm Beach 15 RAS00000027 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 16 of 49 public record to be inspected or copied ... " Notably, thi s prevailing party fee provision is one- s ided and can only be invoked by the party making the public record s reque st , and not the agency or contractor re s ponding to the request. 52 . It is this threat of prevailing party attorneys' fees that is the nucleus around which th e Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme. a. The Origins of the Scheme to Defraud and Extort. i. Martin 0 'Boyle gets a ta ste of the potential ill-gotten gains associated with exploiting th e Public Records Act. 53. Martin O 'Boyle already had an extensive history filing public records requests in New Jersey, Florida and elsewhere. Martin O 'Boyle previous ly used the public records process in an abusive fashion to file thousands of request s a nd vexatious and frivolous laws uit s, t o cripple local governments into granting his development plans and other demands. 54. By way of example, in the case of Martin E. O'Boyle v. Peter !se n, 2014 WL 340 104 (N.J.Super.A.D.i, the Superior Court ofNew Jersey, Appellate Divi s ion , noted: From September 2007 through early July 2008, plaintiff [Martin O'Boyle] and members of his famil y filed multiple reque sts purs uant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-I to -13. Lo ngport's only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, the clerk went to the emergency room because of the stress she attributed to th e flood of OPRA request s . And, in February 2008, the Boroug h 's solicitor notified plaintiff that it would not accept any additi o nal OPRA requests he filed , explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Lon g port had received 190 request s on Octo be r 16 and 17 and thirty fil ed October 3 1, 2007. 5 In the !sen case, Martin O'Boyle sued a resident o f Long port for claiming Martin O'Boyle was "the enemy of Lon g port". The suit for d efamati on was di smissed by summary judgment and affirmed by the appellate court. RICHMAN GREER , P.A. Miami • West Palm Beach 16 RAS00000028 .. Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 17 of 49 55. Similarly, whe n his dau g hte r was being pro secuted for drivin g und e r the influence m Palm Beach County, Florida, Martin O 'Boyle inundated the Palm Beach County State Attorney's Office both individuall y and thro ugh so me o f the other Defendants with over I ,300 requests for public record s. 56. At o ne point, Martin O 'Boyle had an application with four variance reque st s pe nding before the Town when hi s ve xatiou s campaign of public record s requests began in 2013. One of the variances in the request was granted, but O 'Boyle was sent a le tter of de nial pertaining to the o ther three requests on March 24, 2013. 57. From February 2013 to July 2013 , Martin O 'Boyle filed hundreds of public records requests with the Town, overwhelming the record s custodian with a nearly constant barrage of requests. When the Town's limited staff could not keep up with the reco rds requ ests in what Martin O 'Boyle believed to be a rea so nabl e perio d of time, he began filing public record s lawsuits. 58. From April to Jul y 2013 , Martin O 'Boyle fil ed approx imate ly 16 public reco rd s lawsuits in hi s name and tha t of hi s affiliated e ntities, including Defendants Commerce Group and AH. Many were filed as separate actions on the same day to further burd en the Town in responding to th e complaints and t o increase the costs of the litigation . 59. In Jul y 2013 , the Town settled with Martin O'Boyle and paid him $180,000.00 , an amount Martin O 'Boyle claimed to have accrued in attorney 's fees although his suits had been prosecuted pro se. 60. As a result of the foregoing expe ri ences, and with J o na tha n O 'Bo yle hav in g g rad uated from law schoo l in 2012, Martin O 'B oyle and J o nathan O 'Boy le rea li zed th at they RICHMAN GREER, P.A . Miami• West Palm Bead> 17 RAS00000029 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 18 of 49 could use the Public Records Act not just to frustrate the workings of city governm e nt s, but also t o ge nerate an ill-gained profit for themselves. Thus , no longer was Martin O 'Boyle's goa l s impl y to torment local governments, bull yi ng them into caving to hi s dem and s. The purpose was now to extort money. 61. In o r around J a nuary 2 014 , Martin O'Boyle and hi s son , Jonathan O'Boyle, met for the purposes of develo pin g a scheme to defraud and extort whereby the y would form one or more contrived not-for-profit corporations. The purpose of the not-for-profit corporations would be to file tho usa nd s of public record s requests with municipalities, government entities and state contractors throughout th e State of Florida. Receipt a nd review of the requested records was no t th e O 'Bo y le's priority. What Martin O 'Boyle and J onathan O 'Boy le were really interested in was trying to cause the recipient of the public record s request to overlook the request and th e n s lap the re cipie nt with a laws uit or pre-su it settleme nt demand for a n a mo un t far in excess of their costs and fees and from which they would pocket a generous profit. ii. Creation ofthe O 'Boyle Law Firm and I ts Feeder Individuals and Entities. 62. Accordingly, and despite the fact that Jonathan O 'Boyle was not a Florida lawyer, he o pened and ran the O'Boyle Law F irm as a forei gn profit corporation on Fe bruary 10 , 20 14 . This law firm was o pe ned and operated from his father's corporate offices of the Comme rce Group, locat ed in Deerfield Beach Florida. Both M a rtin O'Boyle and Commerce Group finan ced a ll activities of the O'Boyle Law Firm. 63. Once th ey had the law firm in place, Martin O'Boyle, Jonathan O 'Boyle , and the O 'Boyle Law F irm required "clients" -pre-textual plaintiffs that th ey could use in sending out fr ivo lo us and fraudulent publi c record s request s a nd accompa ny in g lawsuit s. Accordin g ly, RICHMAN GREER, P.A. Miami • West Pa lm Beach 18 RAS00000030 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Do cket 02/12/2015 Page 19 of 49 Martin O 'B oyle and Jonatha n O 'Boyle, along with Ring and DeMartini , decided to activate several of Martin O'Boyle's dormant corporations and not-for-pro fit s, and to form several new not-for-profit entities, including Defendants CAFI, OPR, and PAl, as a front to make public records requests and create litigation for the O'Boyle Law Firm which then could be used to defraud and extort Class Members into paying inflated settlement amounts and line their pockets with the proceeds derived therefrom. 64. Martin O 'Boyle , Jonathan O'Boyle, Ring and DeMartini knew that they could not, on the surface , own and control the non-profits they now intended to create as well as the law firm to which all of the so-called "clients" would be referred. So, to further wrap their scheme to defraud and extort in a shroud of legitimacy, they needed someone who is familiar with government transparency-someone that had vast experience in making public records request and so meo ne with a reputation for doing so. They found that so meone in Joel C handl e r. b. Joel Chandler is Used to Lend Legitimacy To the Scheme To Defraud and Extort. 65. In January 2014, Martin O'Boyle and Jonathan O'Boyle contacted Joel Chandler (hereinafter referred to as "Chandler"). At the time Chandler had been working as a self- employed civil rights and public information activist. Chandler had considerable experience in making public records requests and in public record s request liti gation throughout the State of Florida, and had garnered a reputation as being a government transparency advocate. 66. Chandler was invited to the O'Boyle hom e in Gulf Stream, Florida, where both Martin and Jonathan O 'Boyle resided. At the initial meetings , Chandler, the O'Boyles, and Witmer di scussed the O'Boyle Law Firm 's capacity for handling public records litigation throughout th e state. RICHMAN GREER, P.A. Miami• West Palm Beam 19 RAS00000031 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 20 of 49 67. As a result of the meetings, Martin O'Boyle incorporated an alleged not-for-profit entity. Now, Martin O 'Boyle and hi s various entities were funding not only the O 'Boyle Law Firm, but also a feeder organization-CAFI.6 68. Martin O 'Boyle, on his own and through his other entities, provided actual cash to CAFI and the O'Boyle Law Firm as well as other consideration such as free rent, use of employees, and vehicles. To do this, Martin O'Boyle used both his own personal assets, and the assets of his bus iness, Commerce Group. 69. Martin O'Boyle caused the entity, CAFI, to be incorporated in Florida and directed that hi s three close business associates, William Ring, Denise DeMartini, and Brenda Russell be named as the board of directors. 70. Martin O 'Boyle also agreed with Chandler that he would hire Chandler to serve as the Executive Director of CAFI at a six-figure salary as well as s ubstantial benefits .. 71. Chandler's actual duty was to travel the state making hundreds of pub! ic records requests to public entities and state contractors. Thereafter, any evidence that would serve as a pretext for a lawsuit was to be forwarded immediately to Jonathan O'Boyle for the filing of litigation. Both CAFI and the O 'Boyle Law Firm were operating from a room located in Commerce Group's offices. 72. Prior to meeting the O 'Boyles, Chandler had earned approximately $5 ,000.00 during the year 2013. Upon opening the alleged foundation, Martin O'Boyle agreed to pay Chandler $120,000.00 per year and to provide him with a car to drive around the state to make public records requests. Martin O 'Boyle advised Chandler that he would entirely fund the 6 So-called "Feeder" relationships have previously drawn the scrutiny of the Florida Bar, which has found them to be unethica l (See FL Eth. Op. 02-8). RICHMAN GREER, P.A. Miami • West Palm Beach 20 RAS00000032 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 21 of 49 foundation and la w firm on a n unlimited basis, including the payment of all court filin g fees. Martin O 'Boyle, Jonathan O 'Boyle, Rin g and DeMartini did not te ll Chandler at the time , but had planned that they were go ing to require that all of CAFI's clients be represented by the O 'Boyle Law Firm, that Chandler would not have exclusive control over whether a claim is settled and for how much, a nd that the O'Boyle Law Firm, CAFl, Martin O 'Boy le , and Jonathan O 'Boyle intended to obta in fraudulent settlements from unwittin g defendants by claiming their fee s and costs are an amount far in excess of what they actually were. 73 . On January 27, 2014, Chandler was hired to act as Executive Director and CAFI was incorporated. 74. As instructed, and in furtherance of the scheme to defraud and extort, albeit unwittingly, Chandler began creating public records requests and le ga l claims and referred these to the newly created O 'Boy le Law Firm. c. O'Hare's Involvement. 75 . In or a bo ut 2013 , Chandler had prev io us ly met with Defendant Christopher O 'Hare to discuss public records litigation. O'Hare was upset with the Town over the denial of hi s zoning application rega rding construction of a metal roof. 76. In an attempt to force the Town to approve hi s roof, O 'Hare recruited Chandler and along with the co-Defendants began to inundate the Town with public records requests . 77. O'Hare met regularly with Martin O 'Boyle and Jonathan O 'Boyle and agreed to work in concert with them and to file hundreds of public records requests in his own name as well a s under fictitious names with the clerk for the Town of Gulf Stream. RICHMAN GREER , P.A. Mlaml • West Palm Beach 21 RAS00000033 Case 9:15 -cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 22 of 49 78. O'Hare further agreed that after the Town was incapacitated and unable to timely and fully respond to the public records requests , the O'Boyle Law Firm would represent him in litigation against the Town. to generate money for the firm and the members of the Enterprise. 79. O'Hare began making public records requests to the Town in July 2013. 80. Initially, those public records requests were made by O'Hare in hi s own name or u s ing anonymous email addresses ultimately determined to be associated with O 'Hare .7 81. Although O'Hare would make numerou s request s in a single day, the Town initially did not assess any special serv ice charges to him for extensive use of information technology resources or extensive clerical or supervisory assistance before making respon s ive records available. 82. In response to sixty (60) individual public records requests O'Hare submitted to th e Town in a si ng le da y -on January 16 , 2014, the Town wrote to O'Hare to advise that s ince August 2013 , O'Hare had made more than 500 public records requests, that the Town had already spent more than 200 hours responding to Mt.:. O'Hare's pdor requests, that O 'Hare had failed to retrieve the vast majority of documents gathered by the Town in respo nse to hi s requests, and that O'Hare had failed to p ay the copy charges associated with those documents that had been made available or to pay estimates associated with other requests. 83. Thereafter, the Town bega n to assess special service charges against O 'Hare for hi s exten sive use of information technology resources and/or extensive clerical or s upervi so ry assistance associated with responding to his requests. 7 Se e note 3, supra RICHMAN GREER, P.A. Mlaml• West Palm Beach 22 RAS00000034 Case 9:15-cv-80182-XXXX Document 1 Entered on FLS D Docket 02/12/2015 Page 23 of 49 84. To avo id th ose special serv ice charges associated with the tim e s pent responding to reque sts from a s in g le individual and make the Tow n believe that numerous individual s were requesting reco rd s, O 'Hare began makin g public rec o rd s reque sts in a s ingle da y or within a few day s to the Town us ing fictitious or fraudulent perso nal identification . The fraudulent al iase s used by O 'Hare, man y of w hi ch moc k th e names ofTow n official s including Town Manager Bill Thrasher, Mayor Scott Morga n and Com mi ss ioners Donna White, Joan Orth wein and Robert Ga nge r, includ e: Irnawaty Tirtarahardja irnawatyt@ gmail.com 8 Janto Djajaputra ja ntod ja japutra@gmail.com 9 Rodri go Tejera tejeratejeratejera @g mail.com 10 Nevada Smith nevada sm ithcowboy @gmai l.com 11 Frank Smith frank.sm ith .iconoclast@ gmail.com 12 Hokuikeka i Keihanaikukauakahihulihee kahaunael e II OiOiOO III Oi iOIIII OO iOiiOIIII @ gmai I. com Buffy Howell buffyhowe ll @gmai l.com Bobby Gangrene Bi ll y Trasher bobbygangrene@ gmail.com bi ll ytrasher@ gmail.com 8 When a c ursor hover s over thi s e m ail address, a link appears to chrisoharegul fst ream @gmail.com. O 'Ha re h as fil ed at least o n e public records laws uit seekin g recovery unde r the P ubli c Record s Act for a pub li c records request fil ed in the name of Irn awaty Tirtarahardja. See O'Hare v. Gulf Stream, Case No. 20 14CA008327XXXXMB AF (15th Judicial Circuit in and for Palm Beach County). 9 Whe n a cursor hovers over th is email add ress, a link appears to chriso ha regulfstream@gmai l.com. Moreover, O 'Hare has filed public records lawsuits seeking recovery und er th e Public Records Act for a pub lic records request fi led in the na me of Janto Dj ajaputra. See O'Hare v. Gulf S tream , Case No. 2 014CA006848XXXXMB AB (15tl' Judicial Ci rcuit in and for Palm Beach County); 0 'Hare v. Gulf Stream, Case No. 20 14CA0075 16 XXXXMB AD (15th Judic ial C irc uit in and for Palm Beach Co unty). 10 When a c ursor h ove rs over thi s email addre ss, a link a ppears to c@gmail.com. O 'Hare has filed at least one publi c records lawsuit seek in g recovery unde r the Public Records Act for a public record s request fil ed in the name of Rodrigo Tejera. See O 'Hare v. Gulf Stream, Case No. 2014CA006848XXXXMB AB {15t h Judicial C ircuit in a nd for Palm Beach County). 11 W hen a cursor hovers over thi s emai l address, a link appears to c hri soharegul fstream@gmai l.com . 12 When a c u rsor hovers over thi s email address , a link appears to c@gmail.com . RICHMAN GREER, P.A. Miami • West Palm Beach 23 RAS00000035 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 24 of 49 Scotty Morgin Gonna White Freddy Farnsworth Groan Orthwein Americo Vespuchi Patrick Henry Wyatt Burp Prigs H y pocrites Harry LaF arge scottymorgin@ gmai l .com go n na wh ite @gmai l.com Frederick. freddy. farn sworth @ gmai l.com groanorthwein@gmai l.com discover.the .record@gmai l.com no.gov .secrets@gmail.com ok.cora l.record@gmail.com prigs.and.hypocrites@gmai l.com lafa r getech@gmail.com 13 85. O'Hare has made hundreds of additional public records requests to the Town using fictitious or fraudulent personal identification and continues to do so in order to fraudulently induce the Town not to asses s special service charges against him associated with the ex tensive use of resources and clerical or supervisory assistance. 86. O 'Hare has turned the nea rly one thousand public records requests he has made against the Town into more than two dozen lawsuits . 87. O 'Hare has been a client of the O 'Boyle Law Firm generally, and Jonathan O 'Boyle in particular, s ince the firm 's inception in January 2014. The O 'Boyle Law Firm represents him in approximately 10 of the public records suits he has brought ag ainst the Town, with the first such s uit filed by the O 'Boyle Law Firm on his behalf on January 22, 2014. 88. On May 8, 2014, O 'Boyle and O 'Hare formally joined forces as Plaintiffs against the Town with the filing of a Complaint to Enforce Florida 's Public Records and Open Public M e etings Act. See 0 'Boyle and 0 'Hare v. Town of Gulf Stream, Case No. 13 O 'Hare has fil ed at least one public record s laws uit seeking recovery und er th e Public Records Act for a public records request filed in th e name ofHarry Lafarg e. Se e O 'Hare v. Gulf Stream , C as e No. 2014CCOI2274XXXMB AB (IS'h Judi c ial C ircuit in and for Palm Beach County). RICHMAN GREER, P.A. Miami• West Palm Bead> 24 RAS00000036 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 25 of 49 2014CA005628XXXXMB AG (Circ uit C ivil Division, 15 1h Judi cia l C ircuit in and for Palm Beach County). c. Chandler Realizes He is Being Used. 89. Toward s the end of March and in early April 2014, Chand ler learned that Ring and Martin O'Boyle were making public records requests directed to the Town of Gulf Stream , allegedly at the behest of CAFI, w ithout hi s knowledge or consent. 90. In April 2014, w he n Chandler inquired as to why he was not infotmed about a ll laws uit s fil ed by CAFI, the organization over which he was the executive director, DeMartini explained to Chandler that s he was Martin O'Boyle's key emp lo yee and the director o n the board of CAFI to whom Chandler was to report. DeMartini further explained that she would be directing the flow of liti gatio n to the O'Boyle Law Firm and that she would be calling the shots. 91. DeMartini, a non-lawyer, attended law firm meetings with Chand ler and participated in reviews of all client matters, not just CAFI cases. She made personnel decisions for the O 'Boyle Law Fi rm and managed the alleged law firm 's finances w hile claiming to be a board member of CAFI. 92. During thi s same time, DeMartini demanded that Chand ler produce a minimum quota of25 new lawsuits a week for the O'Boyle Law F irm to file. 93. In May 20 14 DeMartini notified Chandler that s he had full access t o all of the O'Boy le Law Firm 's internal records and client file s . She shared all c li e nt re ports with Chand ler, not just reports co ncerning CAFI. RICHMAN GREER, P.A. Miami • West Palm Beach 25 RAS00000037 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 26 of 49 94. After discovering that public record s requests were being filed in the name of the foundat ion w ith o ut hi s knowledge, C hand ler again directed that a ll public records requests on behalf of CAFI be made by himself, or at the very lea st, that he be advised they are being made. 95. On May 16 , 20 14 , DeM art ini asked Chand ler for a re cap of the number of cases referred by CAF I to the O 'Boyle Law Firm fro m January through May. DeMartini expressed her frustration to Chand ler that he has on ly generated 211 cases in the 12 weeks since CAF I was created . 96. During May 20 14 Chandler learned that the O'Boyle Law F irm had no written fee agreements or engagement letters between the O'Boyle Law Firm and CAFI. 97. By the end of May, DeMartini and Jonathan O'Boyle continued to express their fr ustrati on to C handler. C h a ndl er insisted on reviewing and verifying all lawsu its to be filed by CAFI. DeMartini and O 'Boyle expressed concern that Chand ler's review was s lowing down the flow of liti gation generated by the firm. 98. By this point, it had become ab und antly clear to Chandler that DeMartini , Ring and O'Boyle were on ly concerned with the volume of cases that cou ld be generated , a nd of course the profits that cou ld be had in s uch cases by way of fraudulent settlement demand s, rather than any public serv ice. T hi s suspicion was confirmed when Ch andler's repeated attempts to inform Ring and DeMartini of opportunities to work wi th civil rights groups , public age ncies, student groups and journalists on o pen government iss ues were completely ignored. 99 . In June 20 14 , it came fu ll circle. C ha ndl er learned that Martin O 'Boyle, Jonathan O'Boyle , the O 'Boyle Firm , Commerce Group, CAFI , Ring, and DeMartini were operatin g a RICHMAN GREER , P.A. Miami • West Palm Beach 26 RAS00000038 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 27 of 49 RICO Enterprise that was engaged in a scheme to defraud and exto rt the defe ndants with the hundreds if not thousands of pub! ic record s requests that were made. 100. The sche me involved the firm demanding monetary settlements on behalf of CAFI (or others) far beyond the actual attorneys' fees and expenses incurred and contemp lated in F .S. § 119 .12 , and to keep all of the proceeds, including the "windfall ". If the demands were not met, then the scheme called for intimidation via threat of additional bogus public record s requests and frivo lous litigation until th e demands were m et. 101. On June 30, 2014 Chandler arrived at the Commerce Group/CAFVO'Boyle Law Firm office and presented his letter of resignation to Ring. Immediately thereafter, Martin O 'Boy le demanded that Chandler retract hi s statement (in an email) confirming J o nathan O 'Boyle 's complicity in the sc heme to defraud and extort. Martin O'Boyle threatened Chand ler that if he did not retract his statements concerning Jonathan O 'Boy le's involvement in the "windfall" scheme, Chandler wou ld "force us to re s pond by making your li fe very unpleasant". Thereafter Chand ler refu sed to retract th e e mails and Martin O 'Boy le re peated hi s threats several times. I 02 . As part of the scheme, the O 'Boyle Law Firm has now filed hundreds of s puri o us lawsuits on b ehalf of O 'Boyle, O'Hare, CAFI, and other pret extual entities and individuals in c luding De fendants CG, SDG, OPR, PAl, AH, Commerce GP, CGA, CRO, AE, CRG. These defendants have become engaged in a massive scheme to generate and collect attorneys' fees from Florida agencies and state contractors beyond any fees actually earned. RICHMAN GREER, P.A. Miami• West Palm Beach 27 RAS00000039 Case 9:15-cv-80182-XXXX Do c ument 1 Entered on FLSD Do cket 02/1 2/2 015 Page 28 of 49 d. How the scheme operates: the Example of Gulf Stream. I 03. The Town Of Gu lf Stream has beco me the epicenter of the RlCO Enterprises ' sche me-a sort of example, of what the Enterpri se will do to all Class Members if allowed to cont inue with its pattern of racketeering activity. I 04. Through the RICO Enterprise, Defendants have joined forces to barrage the Town with nearly 2,000 public records requests from fictitious e-mail addresses and purported not-for- profits. (See Composite Exhibit "B.") S hortly thereafter, Defendants fi le suit against the Town, asserting unreasonable delay and seekin g fee s under the Public Records Act. At the same time, they threaten the Town that if it will not settle, it will be faced with hundreds of additional public records reques ts and dozens of lawsuits, a lo ng with the crippling associated costs of both. 105. For instance, in the first 28 days of September, 2013, the Town received 121 public records reque sts o r a pproximately 6 requests pe r business day. All of those reques ts were made by Defendant Chris O 'Hare (1 I 5) or Joel Chand ler (6). With the exception of two requests made by O 'Hare's attorney, Lou Roeder, Esq., all of O'Hare's reque st s were made to the Town by incons picuous e-mail addresses that fai led to indicate the requests were made on behalf of O 'Hare: e mailfinder.mail.ma il @ gma il .com , pub li cdocsearch@gmail.com, perm it .record.search@ gma il .com , in format ion@ pac ificwest.co m . reco rd.pub li c@ ya ho o .com , and account- I 06. O 'Hare's requests were not spread over time; in stead, he barraged the Town with multiple requests in a s ingl e day, e.g., 18 requests on September 4 , 2013, 24 requests on September 20, 2013 and 58 req uests on September 23, 20 13. (See Composite Exhibit "B."). On September 29, 20 13 , a Sunday, O'Hare sent the Town approximately 40 public records requests RICHMAN GREER, P.A. Miami • West Palm Be lch 28 RAS00000040 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 29 of 49 in a four (4)-hour period. The Town re sponded to the requests, pro ducing documents, providing estimates of fees authori zed by the Public Records Act or advising O 'Hare that no re s p ons ive d ocuments ex isted. O'Hare ultimatel y filed 7 lawsuits ov er those September 29, 2 01 3, requests, a ll eging that the Town unreasonably delayed in responding to his requests, and has continued to liti gate those s uit s so lel y to extract settlement payouts from the Town --even though documents have been produced, he has failed to pay the required estimates or he ha s been unable to identify re sponsive records that exist but were not produced. 107. In the first 20 days of January 2014, O 'Hare made approximately 94 public records reques ts to the Town by e-mail. Then, on January 21 ,2014 , O'Hare and O'Boylejoined force s to hit the Town with 15 public records request s in a s ingle day; O 'Hare makin g hi s requests by e-ma il and O 'Boyle making his in person. One of these was a request by O 'Boyle for a copy of the Town 's s ig n-in-lo g . Altho ug h the Town produced the record to O 'Boyle in less than 2 bu s iness days , the newly formed O'Boyle Law Firm seized on the opportunity to sue the Town o n O 'Bo y le's behalf, asserting unreasonable delay and seeking attorney's fe es. 108. By June 2014, the Enterprise had made more than 1,000 public record s requests to the Town and filed more than two do z en public record s suit s again st it , including more than o ne doz en s uit s seeking statutory attorneys' fees filed by The O 'Boyle Law Firm . In the month of June 2014 alone , the Enterpri se hit the Town with approximate ly 180 public records reques ts. These request s were made by e-mai l from Defendants O 'Hare (u s in g fictitious names), O 'Bo yle , C AFI , SDG, C GA, AH and Commerce GP. As noted infra , O 'Boyle and O 'Hare then appeared at the July 11 , 2014 Town Commission meetin g overtly threatening to cause the Town to sp e nd increased lega l fee s or settle w ith him at ri sk of continued public record s requests a nd lawsu its. RICHMAN GREER, P.A. Mia mi • West Palm Beach 29 RAS00000041 ., Case 9:15 -cv-801 82-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 30 of 49 e. How the scheme operates: the example of Wantman Group. 10 9. On Saturday, April 19 , 20 14 , Wantman Group received an emai l from "An Onomy" seeking the "Certificate of In surance referenced on Page 6 of 16 of the South Florida Water Management Di str ict contract 4600002690." A true and correct copy of the email is attached as part of Composite Exhibit "D." II 0. Approximately 3 weeks later, on or around May 8, 2014, and w ith out any further inquiry to the Wantman Group, including a simple confirmati on th at the public records request was in fact re ceived, CAF I, t hro ugh its attorneys, Defendants Taylor and the O 'Boyle Law Firm, filed a two-count complaint seeki ng a copy of the requested record, an immediate hearing, a declaration that Wantman Group v io lated Section 11 9.11 , and of course, an award of attorneys ' fees and costs. A true and correct copy of the two-cou nt complaint is attached hereto as part of Composite Exhibit "D." 111 . In re sponse to the two-count compla in t , Wantman Group, through counse l, sent a letter advising Mr. Taylor a nd CAFI that "Wantman was not aware of the Chapter 119 request ," as it was sent to an obscure indi vidu a l and not the records custod ian of Wantman. The letter a lso attached a copy of the requested document "in the spirit of cooperation," and demanded that the lawsuit be dismissed. A true and correct copy of the May 29, 2014 letter from counsel is attached he reto as part of Compos ite Exh ibit "D." 11 2. Before Wantman Group even filed its Answer and Defenses to the comp laint, Defendants Taylor, O'Boyle Law Firm , and CAFI sent a n email to Wantman Group's counsel offering t o settle the public reco rd s dispute for $3,923 .00. A true and correct copy of the emai l RICHMAN GREER, P.A . Mlaml• West Palm Beach 30 RAS00000042 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 31 of 49 and attached draft settlement agreement from Defendants Taylor, O 'Boy le Law F irm and CAFI is attached hereto as part of Composite Exh ibit "D." 113. Notwithstanding the document had now been produced voluntari ly, Defendants Taylor, the O 'Boyle Law Firm , and CAFI refused to dismiss the lawsuit, requiring Wantman Group to Answer the same. 114 . Upon receipt of the Answer, Defendants Taylor, O'Boyle Law Firm, and CAFI immediatel y sent form discovery (not even tailored to the Wantman Group, but containing things completely inapplicable to Wantman) as an indirect threat that more liti gation is to follow if the settlement demands are not assented to. 115. In all , Wantman Group ha s incurred substantial damages in having to respond to the bogus records request and then defend against the frivolous liti gation . 116. This scheme to defraud and extort has directly injured the Class members as well as the Plaintiffs. To date, Gu lf Stream has been injured in the amo unts and categories set forth in Composite Exhibit "E" and Exhibit "F" hereto. 11 7 . In light of the foregoing, Plaintiffs were damaged as a direct re sult of the RICO Enterprise based on Defendants ' fraudulent claims, backed-up by Defendant's extortion and threats calculated to cause C lass Membe rs to spend money respondin g to bogu s public records requests and defending frivolous lawsuits. VI. COUNT 1-Violation of 18 U.S.C. § 1964(a) and (c). 11 8. Plaintiffs ' adopt and incorporate by reference paragraphs 1 through 117 above as though fully set forth herein. RICHMAN GREER, P.A. Miami• West Palm Beach 31 RAS00000043 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 32 of 49 119. Plaintiffs ' seek reli ef under 18 U.S.C. § 1964(a) of RI C O to prevent and restra in De fendant s fro m committing future violati o ns of secti o n 1962, in c ludin g, bu t not limited to , orderin g th e Defendants to di ve st them selves of thei r interest in the Enterpri se; impose rea sonabl e restrictions on the futur e activities o r investments of the Defendants to ens ure no further e ngageme nt in a sim ilar e nd eavor a s de scr ibed herein ; a nd o rd er dissolutio n of a ll corpo rate de fe nd a nts. 120 . Plaintiffs also seek re lief under 18 U.S .C . § 1964(c) of RI C O, and see k threefo ld the damages s ustained by the Plaintiffs and the C lass M embers, a lo ng w ith costs of thi s s uit, including a reasona bl e attorney f ee. 12 1. The Plaintiffs, a nd ea ch Class M ember that Plaintiffs represent are perso ns within the meaning of 18 U .S .C. § 1964( c) and § 1961 (3 ). 122. 18 U .S .C. § 1962 ( c) makes it unl awful "f or a n y person e mplo yed by or associ at ed w ith a n y e nte rpri se e n gaged in, o r the acti v itie s of w hi ch affect , inter state or fore ig n co mmer ce , to conduct o r pa rticipate, directl y o r indirectl y, in the conduct of s uc h e nte rpri se's affa irs throu gh a pattern of racketeering acti v it y." T hro u gh § 1964(c), "an y person injured in hi s bu s iness or prope rty by reason of a vi o lati o n o f section 1962 o f this chapter may s ue the refore in a n y appro priate U nite d States Di str ict Court a nd s hall recover threefo ld the dam ages he s usta in s and th e cost of th e s uit, including a reasonable attorn ey 's f ee .... " Beca use the Plaintiffs, alo n g w ith the C lass M em be rs , were injured in thei r bus in ess or pro pe rty by Defend ants ' v io lation of 1962, they are e nt itl ed t o threef o ld the ir da mages, atto rn eys ' fe e s and cost s . a. The Enterprise. RICHMAN GREER, P.A. Miami • West Palm Beach 32 RAS00000044 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 33 of 49 12 3. The Defendants , through them se lv es a nd throu gh their employees and agents, formed a uni on and association-in-fact enterprise that engages in , and the activities of which affect, interstate commerce. Thi s Enterpri se ha s as its goa l, a scheme to defraud and intimida te through acts of extortion, municipalities , municipal agencies , private contractors of municipalities and anyone el se s ubject to , or even a rguabl y s ubject t o, the Sunshine Law , into paying unju stified , grossly inflated and fraudul e nt settlement amounts so as t o create and increase profits to the Enterprise. 124. Every Defenda nt had a role or po s iti on in the Enterprise, all of which worked together toward s the common go al of defrauding or extorting municipalities, municipal agencies, private contractors of municipalities and an yo ne else s ubject to or even arguably subject t o the Sunshine Law. The Defendants ' respective role s and their importance to the Enterprise , as well as how it advanced the interest of the E nterpris e are as follows: a. Martin O 'Boyle: Martin O 'Boyle is o ne of the engineers of the E nterprise's scheme to defraud a nd extort, as well as its principal fin a ncier through hi s various bu s ine ss entities. Ma rtin O 'Boyle directs the Enterprise, and is re spons ibl e for the following actions taken to a dva nce the goal of the E nterpri se: 1. Financing the opening and continued existence of the O'Boy le L aw Firm, along with hi s so n , Jonatha n O'Boyle; 11. Financing the o pening and continued ex istence ofCAFI, OPR and PAl; 111. Directing the operations of CAFI, OPR and PA l through hi s app o inted directors and key employees of hi s other bu s ine ss entities such as Commerce G ro up. RICHMAN GREER, P.A. Miami• West Pa lm Beach 33 RAS00000045 Case 9:15-cv-80182-XXXX Document 1 Entered on F LSD Docket 02/12/2015 Page 34 of 49 1v. Utilizing his other business entities including Commerce Group, SDG, AH , CGA, CRO, AE and CRE to make spurious, frivolous, and baseless public records requests and to file resulting lawsuits to either generate windfall fees for himself, Jonathan O 'Boyle, Ring, DeMartini and the O 'Boyle Law Firm; or to extort a settlement payment for the victims. v. Mandating, under threat of no funding, that: I. CAFI file no less than 25 cases per week; 2. All cases filed by CAFI and the other Defendants be referred to the O'Boyle Law Firm; and, 3. All cases be settled for an amount su bstantially in excess of the fees and costs incurred in the case. b. Jonathan O'Boyle. Jonathan O 'Boy le is one of the e ngineers of the Enterprise's sc heme to defraud and extort, along with his father Martin O 'Boyle. To advance the interest of the E nterprise, Jonathan O'Boyle has taken the following actions: 1. Creating, and sustaining the O'Boyle Law Firm, a necessary element of the E nterprise; ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate windfall fraudulent and extortive fees for Martin O 'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O 'Boyle Law Firm; 111. Directing the prosecution of hundreds of public records s uits filed by the O'Boyle Law Firm throughout the State of Florida on behalf of other RICHMAN GREER, P.A. Miami• West Palm Beoch 34 RAS00000046 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 35 of 49 members of the Enterprise in cluding, but not limited to , his father Martin O'Boyle, O 'Hare, CAF I, Commerce Group, OPR, PAl , A H, CGA, CRO, AE, and CRG. 1v. Ordering that public records s uits be filed on behalf of Florida plaintiffs , such as Chandler, without knowledge or consent of the Plaintiffs; and , v. Ordering that , as a pattern and practice, a ll public records suits wou ld be settled for an amou nt sub stantiall y in excess of the actual fees and costs incurred to generate a profit for the Ent erprise, and directing that settlement demands be made by the O 'Boyle Law Firm to the Class Members in accordance with this pattern and practice using the mail or wires. c. Christopher O'Hare. Chri stopher O 'Hare has taken the following actions to advance the Enterprise's scheme to defraud: 1. Fi lin g spuri o us, frivo lous, and baseless public records requests a s we ll as resulting lawsuits so le ly to generate fees for himself, Martin O 'Boyle, Jonathan O 'Boyle and the O 'Boyle Law Firm and, 11. Fraudulently misrepresenting hi s identity in order to induce violation of the Public Records Act and to avoid fees owed by him thereunder. d. William Ring. William Ring is one of the engi neers ofthe Enterprise 's scheme to defraud and extort, having served as Martin O'Boyle's "right-hand" for more than 25 years. To advance the interest of the Enterprise, Ring has taken the fo ll owing actions: RICHMAN GREER, P.A. Miami • West Palm Beach 35 RAS00000047 Case 9:15 -cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 36 of 49 1. Assisting wi th th e creation of not-for-profit Defendants CAFI , PAl and OPR for the so le purpose of generating fraudulent, extortive and w indfall attorney's fee s by the filing and prosecution of frivolous public records lawsu its; 11. Directing the operations of CAFI through key employees of Martin O 'Boyle's other business entities such as Commerce Group. iii . Mandating under threat of no funding, that: I. All cases filed by CAFI and the other Defendants be referred to the O 'Boyle Law Firm; and , 2. A ll cases be settled for an amount substantiall y in excess of the fees and costs incurred in the case. I V. Filing spurious, frivo lous, and ba seless public records requests as well as resulting lawsuits sole ly to generate fees for Martin O 'Boyle, Jonathan O 'Boyle, Ring , DeMartini and the O'Boyle Law Firm; v. Ordering, that as a pattern and practice, a ll public records suits wou ld be settled for an amount substantiall y in excess of the actua l fee s and costs incurred to generate a profit for the Enterprise; and, v1. Purporting to serve as the Florida supervising attorney of the O'Boyle Law Firm (notwithstanding his total lack of liti gation ex perience) in order to hide the fact that non-Florida attorney Jonathan O 'Boyle is trul y directing the firm 's activities, all in violati on of the Rules Regulating the Florida Bar. RICHMAN GREER, P.A. Miami • West Palm Beach 36 RAS00000048 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 37 of 49 e. Denise DeMartini. Denise DeMartini is one of the engineers of the Enterprise's scheme t o defraud and extort, hav in g served as Martin O 'Boyle's "left-hand" for more than 25 years. To advance the interest of the Enterpr ise, DeMartini has taken the following actions: 1. A s sisting with the creation of not-for-profit Defendants CAFI, PAl and OPR for the so le purpose of generating fraudulent, extortive and windfall attorney's fees by the filing and prosecution of frivolous public records lawsuits; ii. Directing the operations of CAF I through key employees of Martin O 'Boyle's other business entities such as Commerce Group . 111. Mandating und er threat of no f undin g, that: 1. CAF I file no le ss than 25 cases per week; 2. All cases filed by CAFI and the other Defendants be referred to the O'Boyle Law Firm ; and , 3. A ll cases be sett led for an amount substantiall y in excess of the fees and cos ts incurred in the case. JV. Ordering, that as a pattern and practice, a ll public records su its would be settled for an amou nt substantially in exces s of the actua l fees and costs incurred to generate a profit for the enterprise ; and, v. Managing the operations of the O 'Boyle Law Firm while sim ultaneously serving as an officer of its c li ents, including CAF l, and sharing confidences of those c lients . RICHMAN GREER, P.A. Mla ml • West Palm Beach 37 RAS00000049 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Pag e 38 of 49 f. Commerce Group. To advance the interest of the Enterpr ise, Martin O 'Boy le 's rea l estate development company, the Commerce Group , has taken the following actio ns: 1. F in a ncing the opening and continued existence of the O 'Boyle Law Firm and the not-for-profit Defendants CAF I, OPR and PAl; and, 11 . Filing s purious, frivolous , and baseless publi c record s requests as well as resulting lawsu its so le ly to generate fees for Martin O 'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O 'Boyle Law Firm. g. Public Awareness Institute, Inc. To adva nce the interests of the Enterprise, the Florida not-for-pro fit PAl has taken the following acti ons: i. In corporating as a F lorida not-for-profit corporation for the so le purpose of generating w indfa ll attorney 's fees by the filin g and prosecution of frivolous public records lawsuits; and, 11. F ilin g spurious, fr ivo lous, and ba se less public records requests as well as res ulting lawsuits sole ly to generate windfall fees for Martin O'Boy le, J onath a n O 'Boyle, R in g , D eMartini a nd the O'Boyle Law Firm. h . Citizens Awareness Foundation, Inc. To adv a nce the interests of the E nterpri se, the F lorid a not-fo r-profit CAFI has taken the following action s: 1. Incorpo rating as a Florida not-fo r-profit corporation for the sole purpose of gen erating w indfa ll attorney 's fees by the filin g and prosecution of frivol o us public records lawsu its; a nd , RICHMAN GREER, P.A. Mlami • West Pa lm Beach 3 8 RAS00000050 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 39 of 49 11. Filing spurio us , frivolous , and baseless public records requests as well as re s ulting lawsuit s so lel y to generate fraudulent , extortive, and windfall fee s for Martin O'Boyle, Jonathan O 'Boyle, Ring , DeMartini and the O'Boyle Law Firm. 1. Our Public Records, LLC. To advance the interests of the En terpri se , the Florida not-for-profit OPR has taken the following actions: 1. Incorporating as a Florida not-for-profit corporation for the so le purpose of ge nerating windfall attorney 's fees by the filing and prosecution of frivolous public records lawsuits; and, 11. Filing sp uriou s, frivolous , and baseless public record s reque st s as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O 'Boyle , Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. J. Stopdirtygovernment, LLC. To advance the interests of the E nterprise, SDG ha s filed spurious, frivolous , and baseless public records requests as well as resulting lawsuits so lely to generate fraudulent, extortive a nd windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O 'Boyle Law Firm. k. Airline Highway, LLC . To ad vance the interests of the Enterpri se, AH has filed spurious, fr ivo lous, and baseless public records requests as well as re sultin g lawsuits so lely to generate fraudulent, extortive and windfall fees for Martin O 'Boy le , Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. RICHMAN GREER, P.A. Mlaml • West Palm Beach 39 RAS00000051 Case 9 :15-cv-8 0182 -XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 40 of 49 I. Commerce GP, Inc .. To advance the interests of the Enterprise, Commerce GP has filed s purious, friv o lous, and baseless public records reque sts as well as re sulting law suit s so lely to generate fraudu lent, extortive and windfall fees for Martin O 'Boyle, Jonathan O'Boyle , Ring, DeMartini and the O 'Boy le Law Firm. m. CG Acquisition Co., Inc. To advance the interests of the Enterprise, CGA has filed spurious, frivo lous , and base less public records requests as well as re sulting lawsuits solely to generate fraudulent , extortive and windfa ll fees for Martin O 'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O 'Boyle Law Firm. n. CRO Aviation, Inc .. To advance the interests of the Enterprise, CRO Aviation, In c. has filed spurious, frivolous, and baseless public records requests as we ll as resulting lawsuits so lel y to generate fraudu lent, extortive and windfall fees for Martin O 'Boyle, Jonathan O 'Boyle , Ring, DeMartini and the O 'Boyle Law Firm. o . Asset Enhancement, Inc. To advance the interests of the Enterprise, Asset Enhancement, Inc. has filed s purious, frivolous, and baseless public record s request s as we ll as resulting laws uits so le ly to generate fraudulent, extortive and windfall fee s for Martin O 'Boyle, Jonathan O 'Boy le, Ring, DeMartini and the O 'Boyle Law Firm . p . Commerce Realty Group, Inc. To adva nce th e intere sts of the Enterprise, CRG has filed spurious, friv o lous, and baseless public records requests as well as res ulting laws uits so le ly to generate fraudu lent, extortive and windfall fees for Martin O 'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O 'Boyle Law Firm RICHMAN GREER, P.A. Miami • West Palm Beach 40 RAS00000052 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 41 of 49 q. T he O'Boyle Law Firm . At the center of the Enterp ri se's sche me to defraud, the O 'B oyle Law F irm ha s take n t he foll ow in g acti o ns to advance the E nterpri se's inte re sts: 1. Pro fitin g from improper illega l, and unethica l feeder and fee-sharing relationships and s harin g s pace w ith it s no n-l awyer c li e nts, in c ludin g Defe nd a nts Commerce Group, CAF I, OPR and PA l ; ii. Filing spuriou s, frivo lous, and base less public record s requ ests as well as re s ultin g lawsuits o n behalf of its feeder c li e nts, a ll of w hich are entities affi li ated with and funded by the Enterprise o r it s members; and, 111. Using the mail and wires to demand that putative Class Members settle public records laws uits in an amount s ubstantially in excess of the actua l fees a nd costs in c urred to generate a profit for t he E nterpri se a nd fraudu le ntl y mi s representing the a mo unt of those fees and cost s . r. Ryan Witmer. Ryan Witmer is one of the engin eers of the Ente rpri se's scheme to de fraud, a lo ng w ith hi s law school cl assmate and friend J o natha n O 'Boyle. To advanc e the inte re st of the Enterpri se, Witmer t ook the fo ll owin g actio ns: 1. Creatin g the O'Boyle Law Firm and agreeing t o serve as its purported F lorida superv ising attorne y in order to hid e the fact that non-Flo rida attorney Jo nathan O'Boyle is trul y directing th e firm 's activiti es, a ll m vio lati o n of the Rules R egulati n g the F lorida Bar; 11. Caus ing the O 'Boyle Law F irm to profit from improper illega l a nd unethical feede r and fee-sharing re latio nships a nd to share space w ith its RICHMAN GREER, P.A. Miami• West Palm Bead> 41 RAS00000053 Case 9 :15-cv -80182-XXXX Do cument 1 Entered on FLSD Docke t 02/12/2015 Page 4 2 of 49 non-lawyer clients, including Defendants Commerce Group, CAFI, OPR and PAl; 111. Facilitating the unlicensed practice of law by Jonathan O 'Boyle; 1v. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits; and , v. Using the mail and w ires to demand that putative Class Members settle public records lawsuits in an amount s ub stantia ll y in excess of the actual fees and costs in curred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. s. Giovani Mesa. An attorney with the O 'Boyle Law Firm , Mesa has taken the following actions t o advance the Enterprise 's scheme to defraud: 1. Fi lin g sp urious, frivolous, and baseless public records requests as we ll as resulting lawsuits; and, 11. Using the mail and w ires to demand that putative Class Members settle publi c records lawsuits in an amou nt substa nti a ll y in excess of the actua l fees and costs incurred to generate a profit for t he Enterprise and fraudulently misrepresenting the amoun t of those fees and costs. t. Nickalaus Taylor. An atto rne y with the O 'Boyle Law Firm, Taylor has taken the following actions to advance the Enterprise's scheme to defraud: 1. F ilin g spurious, frivolous, and baseless public records requests as well as resulting lawsuits ; and, RICHMAN GREER, P.A. Miam i • West Palm Beach 42 RAS00000054 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 43 of 49 11. Us in g th e mail and wires to de mand that putative C lass Me mbe rs settl e public reco rds lawsuits in a n a mount s ub st anti a ll y in excess of th e actu a l fees a nd c osts incu rred to gene rate a profit fo r the E nte rpri se and fraudul e ntl y mi srepre se ntin g the amo unt o f those fe es a nd co sts. 125. The me mbers of the Enterpri se set forth a bove , f un cti on in a fa shi o n so as t o become a continuing unit w hi c h furni shes a vehicl e for the co mmissio n of the racket eerin g activity set fo rth bel ow. T he cont inuity of the Enterpri ses' actions w ill be re peat ed in th e f utu re if it is all owed t o continue . a. Pattern of Racketeering . 126. Pursuant to 18 U .S.C. § 1961 (I ), "rac keteering acti v ity" includes the pre di cate crimes o f m a il f ra ud (18 U.S .C . § 1341 ), w ire fraud (18 U .S .C . § 1343 ), and extortion (18 U.S .C . 195 1 ). Under to 18 U.S.C. § 13 41 , "whoever , having d ev ised or inte ndin g t o d ev ise any sche m e or a rti fice to d e fra ud, o r f or o bta ining m oney or pro p erty by m eans of fa lse o r fr audule nt prete nses, re presentati o ns , or pro mi ses ... for the purpose of executing such scheme or artifi ce or attempting so t o do" and uses the ma il s o r other co mme rc ia l carrie r to do so, commits m ail fr a ud. S imilarly, und er 18 U .S.C. § 134 3, "Whoever, hav in g dev ise d o r intending to dev i se a ny scheme or artifice to de fraud , or for o bta inin g m oney or pro pe rty by means of f a lse or f raudul e nt pret enses, re prese ntations , o r promi ses, tran smits o r c a uses to be trans mitted by means of w ire ," co mmits w ire fr a ud . U nd e r 18 U .S.C. § 195 1, ext orti on is "the o bta ining of property fr om another, w it h h is con sent, induced by w rongful use of actua l o r th reatene d fo rce, v io lence, or fea r (in c luding fe ar of econ o mi c loss) .... " RICHMAN GREER , P.A. M iami • West Palm Beach 43 RAS00000055 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Do cket 02/12/2015 Page 44 of 49 127. All members of the Enterprise have committed at least one predicate act of mail fraud , wire fraud , or extortion, which , when combined, constitutes a pattern of racketeering undertaken by the Enterprise to accomplish the goals of the Enterprise . Examples of predicate acts by each member of the Enterprise is set forth on the charts attached hereto as Composite Exhibit "B"14 and Exhibit "F." (these charts are exemplary, and by no means exhaustive). In addition to the mail and/or wire fraud predicate acts committed by the RICO Enterprises ' members, O'Hare and Martin O'Boyle have blatantly threatened to cause the Town to spend increased legal fees or settle. 128. For example, at the July 11 , 2014 Town Commission Meeting, O 'Boyle sai d to the commissions; "why would yo u spend $1,700 when on your very best day, best day you win $450? ... You want to lower the legal fees , you want to get rid of the lawyer fees? What you spent you could have settled with this guy [O'Hare] ... You would have spent halfthe money and everyone would have been happy." 129 . At thi s same meeting, Martin O'Boyle, when addressing the Town 's budget, suggested that "you won 't hav e to worry about millage rate" if the Town would "sit down and try to solve" the issue s with O 'Hare--described by O'Boyle as "the guy that wants to do nothing but file law suits .... " 130. However, Mr. O 'Hare's most obvious act of extortion occurred at a September 12, 2014 Commission Tentativ e Budget Hearing, when, whi le referencing the outstanding public records requests, he stated: "There 's a lot on the board and a lot more comin'. Be so much easier just to get this settled in stead of spending more money each time the lawyers write a letter than it 14 Unless otherwise indicated, each of the Public Records request contained in Composite Exhibi t "B" was made v ia email or facsimile and co nstitutes a u se of the wires. RICHMAN GREER, P.A. Miami• West Palm Beach 44 RAS00000056 Case 9 :15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 45 of 49 wou ld take to settle so me of th ese thin gs." A mo nth later, Mr. O'Hare reiterated these threats at the October I 0, 2014 Town Commi ss ion meeting, st at in g that "So ma ny of these cases could be reso lved by just admittin g gu il t [and] payin g th e attorneys' fee s ... .I mea nt a t ypical public records case settled for ..... w hat was Joel C handlers? Was it $1,500 to make him go away? And yet you spend $20,000 sayi ng no, we 're not gu ilty a nd we're not go nna cooperate. That's just not a good use of public money." 13 1. In addition to th e verbal threats, Martin O 'Boyle and O'Hare have a lso attempted mutiny-styled ra lli es ofthe c iti zen s to try and pressure the Town into settlin g th e scores of publi c rec ord s requ ests. In January o f 2015, Martin O 'Bo y le and O 'Hare publi shed the "Gulf Stream Patriot," a professionally pre paid bulletin in large part devoted to seekin g support to force sett lement of a ll of the public records lawsuits. In thi s bulletin, O'Boyle and O 'Ha re s uggest to th e residents of the Town that: "Beca use of the stout costs, [of t he public records liti gatio n] t he residents are the ones bei ng punished! Let's a ll ho pe a reso luti on is in s ight; a nd the costs disappear." 132. On the back page, th e "Gulf Stream Patriot" states that the "hottest topic" in the Town right now is the public records liti gati o n. Accordingly, th e bull etin then asks th e readers to answer th e fo ll owin g question in an o nline s urv ey: "Are yo u in favor of th e Town reaching a peaceful reso luti on with Mr. O'Boyle and Mr. O 'Hare, which wo uld end a ll th e expenses a nd li tigation in a prompt fashion ?" 133 . Each of these statements m ade by e ither O 'Boyle or O'Hare is an overt threat that add iti o na l frivolou s public records requests an d accompanyin g litigation will follow ifthe Town RICHMAN GREER, P.A . Miami • West Pa lm Beach 45 RAS00000057 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 46 of 49 does not agree to settle the current cases. Accordingly, each of these statements is an act of extortion, carried out to further the goa l of the scheme to defraud and extort. 134. Each of these actions is a regular way of doing business for the enterprise's members and threatens repetition in the future. b. Reliance. 135. The frivolous and often inconspicuous public record s requests , as well as the false and disguised identity of the requester, a long with the fraudulent se ttlement demands that were sent by the mail s and the wires were justifiably relied upon by Plaintiffs and Class Members when they paid the fraudulent and inflated settlement demands or when they retained additional staff and spent additional resources in responding to the same. c. Proximate Cause and Damages. 136. The wrongful conduct of the enterprise set forth above, including the acts of mail fraud, wire fraud, and extortion have directly harmed the P laintiffs and the Class Members. The Plaintiffs and the Class members were and are being extorted to pay inflated and fraudu lent settlement demands based on the frivolous and often inconspicuou s public records requests made by the enterprise, amounts they wou ld not otherwise have paid. 137. In addition, when the volume of the frivolous public records request began to increase exponentiall y as the scheme to defraud and extort progressed, the Plaintiffs and C lass Members were forced to incur additional internal costs assoc iated with having to try and respond to the same. See the spreadsheet attached hereto as Composite Ex hibit "E," setting forth the amount of additional internal costs the Town was forced to absorb as a result of the E nterpri ses' pattern of racketeering. RICHMAN GREER, P.A. Miami • West Palm Beach 46 RAS00000058 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 47 of 49 138. Fina ll y, the acts of extortion were directly intended to cause the Plaintiffs to spend money defending frivolou s actions having no ne xus or relation to the origina l settlement demands as to w hi ch they were being coerced to comply with and pay. The Plaintiffs had a pre- existing right to be free from the threats of the previously unrelated public records requests and frivo lous liti gation, and the re so luti o n of the threatened public records requests and li tigation wou ld not impact the resolution of the case in which the threats were made but for the extortionate nature of the threats. The threatened public records reque sts and frivolous litigation were simp ly used as leverage to influence a nd gai n compliance with fraud ulent settlement demands made in unre lated cases-a tool to extort additional money from the Plaintiffs. See the spreadsheet attached hereto as Ex hib it "F" outlining the amount spent in defending against the frivolous public records requests and accompanyin g liti gation brought to achieve a si mple yet calcu lated goal of causing the Town to hemorrhage money and consider settling. I 39. T he re is no person who has more directly sustained these injuries than the Plaintiffs and C lass Members, and the injuries are a direct and intended result of the enterprise's sc heme to defraud the P laintiffs, as well as the mail and w ire fraud acts undertaken as part of the scheme to defraud the Plaintiffs and C lass Members. 140. Pursuant to 18 U.S .C . § 1964(c), Counter-Plaintiff req uests an award of attorneys' fee s and costs for hav in g to bring the instant s uit. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of a ll other similarly s itu ated, pray for relief and judgment as follows: RICHMAN GREER , P.A. Mlaml • West Palm Beach 47 RAS00000059 Case 9 :15-cv -8018 2-XXXX Doc ument 1 Entered on FLSD Do cket 02/1 2/2015 Pag e 48 of 49 a. Certifyin g the proposed C lass and approving Plainti ffs Town of G ulf Stream and Wantman G ro up , Inc. as c lass representatives; b . Appointing Richman Greer, P.A as class counsel ; c. A warding Pl ai ntiffs and the Class treble damages in an amount to be proven at trial , along with costs, interest, an attorneys' fees; a nd d. Entering whatever orders the Court deems necessary to divesting th e Defenda nts from their inte re st in the enterprise and impos in g reasona ble restriction s o n the future activities o r investments of the Defendants to prohibit them from engaging in a similar type endeavor; e. Awarding any further reliefthe Court d eem s just and pro per. JURY DEMAND Plaintiffs d emand a trial by jury o n all iss ues so tri a ble. Res pectfull y submitted this 12th day of February, 2015. RICHMAN GREER, P .A. Counse l for Plaintiffs One C learlake Centre, Suite 1504 250 Australian A venue, South West Palm Beach, Florida 33 401-50 16 Telephone: (561) 803-3500 Facsimile: (561) 820-1608 By: Is/ G erald F. Richman GERALD F. RIC HMAN Florida Bar N o.: 066457 gri chm a n@ r ic hm a ng reer .com dco sto n is@ri c hman gree r .com ERI C M. SODHI F lo rida Bar No.: 0583 8 7 1 eso dhi @ ri c hm a ng reer.co m mra mirez@ri c hm a n greer .com RICHMAN GREE R, P.A. M iami• West Palm Beach 48 RAS00000060 Case 9:15-cv-80182-XXXX Document 1 Entered on FLSD Docket 02/12/2015 Page 49 of 49 L EORA B . F RE IRE Fl o rid a Bar No.: 001 3488 lfr e ire@ richmangreer.com RICHMAN GREER, P.A. Mia mi • WMt Pa lm Stach 4 9 RAS00000061 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO: 9:15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and WAN1MAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiff, v. MARTIN E. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, TNC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS , LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC., Defendants. _________________________________________________________________ / MOTION FOR SANCTIONS CLASS ACTION Christopher F. O'Hare ("O'Hare"), through his undersigned attorney, pursuant to the Federal Rules of Civil Procedure of the Southern District of Florida, files this Motion for Sanctions. BACKGROUND 1. On February 12, 2015, Plaintiffs Town of Gulf Stream ("Gulf Stream") and Wantman Group, Inc. ("Wantman") filed their Class Action Complaint, ass erting a single count under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, against twenty separate Page 1 of14 RAS00000062 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 2 of 14 defendants, including O'Hare (the "Class Action Complaint") [D.E. 1.] and the Exhibits [D.E. 4]. 2. On March 9, 2015, Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer filed their Motion to Dismiss Plaintiffs' Class Action Complaint and Memorandum in Support Thereof ("Attorneys ' Motion to Dismiss") [D.E. 9.] 3. On March 13, 2015, Defendants Martin E. O'Boyle, Airline Highway LLC, Commerce Group Inc., GC Acquisition Co. Inc., CRO Aviation Inc., Asset Enhancement Inc., Commerce Realty Group Inc., and Commerce Group Inc. filed their Motion to Dismiss Class Action Complaint and Incorporated Memorandum of Law ("M. O'Boyle Motion to Dismiss") [D.E. 1 0]. 4. On March 16, 2015, Defendants Denise DeMartini, Citizens Awareness Foundation lnc.("CAFI"), Our Public Records LLC, Stop Dirty Government LLC, and Public Awareness Institute, Inc. filed their Notice of Joinder in Motion to Dismiss Class Action Complaint (''Notice of Joinder") [D.E. 12]. 5. On March 16, 2015, Defendants William Ring, Jonathan O'Boyle, and The O'Boyle Law Firm, P.C. filed their Notice of Joinder in Motion to Dismiss Class Action Complaint ("Law Firm Notice of Joinder") [D .E. 13.] 6. On March 18, 2015, Defendant O'Hare filed his Notice of Joinder in Motion to Dismiss Class Action Complaint ("O'Hare Notice of Joinder") [D.E. 14.] 7. On June 30, 2015, the Town's RICO complaint against O'Hare and others was dismissed, wherein this Court found that: The Complaint fails not due to a lack of finesse in pleading; rather, it fails because on the most fundamental level, the entire factual underpinning of Plaintiffs' case cannot. under any circumstances, constitute a RICO violation. [emphasis added] 8. This Court also found that the public records requ ests could not constitute a predicate act under RICO because the Records Requestors "had the absolute right under current F lorida law to file public record requests and then file lawsuits ifthe requests went unanswered." [D.E. 14.]. This Court further recognized that "the motive for making a public record request is irrelevant under Page 2 of 14 RAS00000063 Case 9 :15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 3 of 14 Florida law" and that "someone reque sting access to or copies of public records may not be required to disclose background information such as a name or address unless the custodian is required by law to obtain the information." ld. Again, this Court found that "the entire factual underpinning of Plaintiffs ' case cannot, under any circumstances, constitute a RICO violation." [D.E. 48.] 9. On August 20,2015, Despite the admonishment of the Federal District Court, Plaintiffs Gulf Stream and the Wantman Group filed its Appeal and Brief to the US Court of Appeals for the Eleventh Circuit. [D.E. 49] 10. On June 21, 2016, the US Court of Appeals for the Eleventh Circuit, issued an opinion 9No 15- 13433), wherein the Court affirmed the dismissal of the Plaintiff's Complaint, stating that "the allegations do not support a RICO claim under [the Court's] precedent." See attached Exhibit "A". INCLUDING O'HARE IN THE RICO CLASS ACTION COMPLAINT 11. A review of the omnibus allegations made by the Plaintiffs in the Class Action Complaint [D.E.l] and the Exhibits [D.E. 4] clearly reflect that the Defendant O'Hare has never made a public records complaint against any entity other than the Town of Gulf Stream. Additionally, no evidence of any involvement of O'Hare with any of the other Defendants was cited in the Class Action Complaint. Accordingly he was not a proper Defendant in this lawsuit. 12. A review of the omnibus allegations made by the Plaintiffs in the Class Action Complaint [D.E.l] and the Exhibits [D .E. 4] reflects Defendant O'Hare has never been involved with any of the other Defendants in any public records complaints. The only similarity is that O'Hare is also a client of the O'Boyle Law Firm who are handling a number of his public records lawsuits against the Plaintiff Gulf Stream. No other clients of the O'Boyle Law Firm were included as Defendants in the Class Action Complaint -only O'Hare. 13. Plaintiff Gulf Stream, has made multiple threats against O'Hare all prior to the filing of the Complaint, where Plaintiff Gulf Stream, either through Robert Sweetapple, their attorney, or Page 3 of14 RAS00000064 Case 9:15 -cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 4 of 14 Scott Morgan, the Town Mayor, has demanded that Defendant O'Hare dismiss ALL of his pending lawsuits against Plaintiff Gulf Stream, including complaints regarding Gulf Stream's violations of O'Hare's federal civil rights and Gulf Stream's violations of state law, lawsuits that have nothing to do with public records requests, nor do they involve other alleged class victims. The Town's bottom line-unless Defendant O'Hare withdrew ALL his pending lawsuits against Plaintiff Gulf Stream, then Gulf Stream would include O'Hare as a co-defendant in the filing of the Class Action Complaint [D .E. 1]. Despite the fact that the Town and its attorneys were privy to exculpatory evidence and Plaintiff O'Hare's pleadings that he should not be included in the Class Action Complaint [D.E. 1], the Town still included him. Instances of such extortion by the Town include, but are not limited to, the following: (a) Numerous threats and intimidation against O'Hare-again, all before the Complaint was filed -by the Defendant's attorney, Sweetapple, or the Town Mayor, Morgan, telling O'Hare that he would need to cooperate with the Town in their RICO action against O'Boyle, et al, or he would be included in the Town's RICO action. They did this despite O'Hare's repeated protestations that he had nothing to do with O'Boyle or CAFI in their public record request filings. There were several such meetings -on July 24, 2014, August 12, 2014 and September 3, 2014. (b) On June 24, 2016, Sweetapple submitted an Affidavit to the Federal Court in Case No. 9-14-cv-81250, wherein he detailed his discussions with Joel Chandler, the Town's "star witness" with regard to the filling of their RICO Class Action Complaint, as well as several discussions with O'Hare and his attorneys prior to the filing of the RICO Class Action Complaint. See attached highlighted Exhibit "B". In that affidavit, Sweetapple acknowledges that "[he] advised Mr. Hanna [O'Hare's attorney] that the Town was investigating and considering a class action lawsuit against Mr. O'Boyle and all others involved in the scheme described by Mr. Chandler during his Sworn Statement under the civil provisions of Florida's Racketeer Influenced and Corrupt Organizations Act ("RICO Page 4 of14 RAS00000065 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 5 of 14 Act"). Sweetapple also detailed in his affidavit discussions at a s ubsequent September 3, 2014 meeting with O'Hare and his counsel, Mark Hanna ("Hanna") and Louis Roeder ("Roeder"), and stated that "[he, Sweetapple] summarized the information [he] obtained from Chandler. [He] further stated that based upon this information, the Town may pursue a civil RICO lawsuit against Mr. O'Boyle and others involved in this alleged scheme." Yet according to an e-mail from Chandler to O'Hare's counsel, dated November 17, 2014, and shared immediately thereafter with the Town Commission, Chandler states "Lest there be any doubts about my feelings on this issue, I believe [O'Hare] has done nothing wrong and that he had nothing to do with the RICO allegations. I believe (and have stated to Sweetapple and O'Conner) that the Town should concede to [O'Hare's] demand and be done with it. [O'Hare] is a victim of the Town's foolishness." See attached Exhibit "C". This is further supported by Chandler's deposition of February 24, 2016 (see attached composite of excerpts as Exhibit "D"), wherein he states, " .. the Town going after Chris 0' Hare, I completely disagree with that." pg 173, lin es 14-15. "I' m very confident that I expressed to Bob [Sweetapple] and to Joann 0' Connor, my disappointment and concern that they were involving Chris O'Hare. I have been, I think, very clear with everybody that I have ever talked to about this issue, that I think that' s ill advised, unfair. I don' t think he' s the bad guy here at all." pg 249, lines 6-12. It's obvious that while Sweetapple professed that he relied upon statements by Chandler to make his RICO Class Action Complaint, he full y ignored statements Chandler made with regard to O'Hare -statements that confirmed O'Hare was NOT involved in any supposed RICO scheme. Clearly, Sweetapple included O'Hare in the RICO Class Action Complaint, deliberately ignoring exculpatory statements by his star witness, for the sole purpose of pressuring O'Hare to drop ALL his lawsuits against the Town or humiliating O'Hare by s imply including him in the RICO Class Action Complaint. Where's the good faith in that? Page 5 of 14 RAS00000066 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 6 of 14 (c) On July 18, 2016, O'Hare submitted an Affidavit as a non-party to the Federal Court in a se parate Case No . 9-14-cv-81250, wherein he detailed several portions ofthe supposedly confidential September 3, 2014 meeting described by Sweetapple in his earlier affidavit. See attached Exhibit "E". In that affidavit, O'Hare recounts how "Sweetapple said that the Town was consulting with Gerry Richman, an expert on RICO, who was building a case against Martin O'Boyle. Sweetapple said that they already had a 40-page 'indictment' ready to go; and that the State Attorney's office was investigating as well. It was clear to me that Sweetapple was threatening criminal action against me. When I asked if Richman was working for the Town, Sweetapple said Richman was "co- counsel" and was working for him, Sweetapple." [emphasis added] It's clear that the representations by Sweetapple and Morgan to O'Hare and his counsel, Hanna and Roeder, was that he, Sweetapple, was responsible for manufacturing the RICO complaint and both Sweetapple and Morgan were responsible for including O'Hare in it. (d) On October 10 , 2014 the Town Commission of the Town of Gulf Stream met to consider filing a RICO action and retaining special counsel to represent the Town (Agenda Item X. A. -see attached Exhibit "F"). During the consideration Attorney Gerry Richman stated he believed the best way to counteract what the Town was going thru is to file a RICO action in Federal Court. Mayor Morgan observed that he believed the RICO laws uit would put a stop to the individual lawsuits by O'Hare. There can be no doubt that Plaintiff included O'Hare in the RICO lawsuit for the singular purpose of "counteracting" his lawsuits and record requests. (e) During that same October 10 , 2016 meeting of the Town Commission, Richman confirmed to the Commission that the prevailing party would get attorney fees. The Commission therefore voted to retain Richman and subsequently filed the RICO complaint against O'Hare relying upon Richman's opinion that the prevailing party (in this case O 'Hare?) would be entitled to attorney fees. Page 6 of14 RAS00000067 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 7 of 14 (f) On November 14 ,2014 , O'Hare read a speech before the Gu1fStream Town Commission explaining that he had been threatened with a RICO action if he did not dismiss ALL his cases against the Town, which he titled "I will not be silenced!" See copy attached as Exhibit "G". In that speech O'Hare notified the Commission that he was threatened by Town Counsel and said, "I have been warned by Mayor Morgan through his attorney that I must withdraw ALL my complaints or be drawn into a long and expensive RICO lawsuit. That is extortion and I will not be silenced. This RICO accusation is untrue, but it is a ringing bell that cannot be unrung. It is a callous and malicious attempt to destroy my character and it will not go unpunished." Obviously, the Town was on notice to investigate O'Hare's accusations . They did not. (e) On November 17, 2014, in response to O'Hare's speech before the Town Commission, Joel Chandler, Sweetapple's supposed "star witness" in his threatened RICO action against O'Hare, wrote an e-mail to Roeder stating that he believed "Chris has done nothing wrong and that the he has nothing to do with the RICO allegation." He went on to say that he "believ[ed] (and [had] stated to Sweetapple and O'Conner) that the Town should concede to [O'Hare's] demands and be done with it;" going on to say that he thought "Chris is a victim of the Town's foolishness." See attached Exhibit "C". O'Hare immediately shared this e-mail with the Town Commission. It was clear that Sweetapple was supposedly relying on Chandler's testimony to make his RICO Class Action Complaint; yet he chose to ignore that same testimony when he was informed that O'Hare had nothing to do with O'Boyle or any possible RICO action. It's clear that it ws Sweetapple and Morgan who decided to file the RICO Class Action Complaint against O'Hare. It's also clear that Sweetapple was deceptive in his affidavit when he said he made O'Hare aware of what Chandler had told him -apparently not everything. (f) According to Chandler's February 24, 2016 deposition, he "thought the RICO lawsuit was Page 7 of14 RAS00000068 Case 9 :15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 8 of 14 ill advised for a whole host of reasons, not the least of which is making a public records request, in and of itself, is not a criminal act. "pg 172, line 22-25 "I don' t think that making a public records request in and of itself, or even making thousands of public records requests on the Town of Gulf Stream is an illegal action." pg 178, lines 4-7. It's clear that Sweetapple, attorney for the Town, the self-proclaimed lead in the Town's RICO action, was well aware that the public records requests made by O'Boyle, CAFI, and especially O'Hare, was not a predicate to a RICO action. (g) Finally, at a recent July 8, 2016 Town Commission Meeting, Mayor Morgan stated, "I want to just give you an update on the litigation status. The RICO action is finished ... So, the effect of the RICO action was exactly what we tried to accomplished and that was to stop those lawsuits. Public record requests themselves cannot be stopped by lawsuits; they continue and they continue at a fairly high rate, not like it used to be but they still continue." See YouTube video, timer 1:37:40, at the following link: http s://www.youtube .com/watch ?v=olo X9atFMO&feature=youtu.be, What Mayor Morgan was now admitting was that it was the Town's intent the whole time to stop what is O'Hare's right according to the Florida Constitution -to file public records requests, and when the Town fails to allow access as defmed by Statute and case law, to file suit. Surely, for the Government to utilize the Courts for such an unconstitutional purpose is egregious. (h) The threats by Plaintiff Gulf Stream noted in paragraphs 13 (a)-13 (g), above, regarding their motive for including Defendant O'Hare in the Class Action Complaint [D.E. 1], is yet the latest instance of retaliation by Plaintiff Gulf Stream against Defendant O'Hare for speaking out against the behavior and policies of the Town and its leaders, and their massive effort to chill Defendant O'Hare's right to free speech and the right to petition the government in court. Page 8 of 14 RAS00000069 Case 9 :15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/2112016 Page 9 of 14 ARGUMENT Assuming all of the Plaintiff's RICO claims were true against O'Boyle, CAFI, et al, the evidence shows that O'Hare had no part in it -and that the Town and Sweetapple knew it. Normally, prevailing litigants in American courts may not collect attorneys' fees from their opponents. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U .S.240, 247 (1980). This so-called "American Rule" is "deeply rooted in our history and congressional policy," id. at 271, and is meant to avoid unnecessarily deterring parties from attempting to vindicate their rights in a j udicial forum. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967). We argue that this case falls within two exceptions to that rule. Under the first exception, which is authorized by statute, courts may assess fees for "the excess costs, expenses, and attorneys' fees reasonably incurred" against attorneys who have "multiplie[d] the proceedings in any case unreasonably and vexatiously." 28 U.S.C. § 1927. Under the second exception, courts may exercise their inherent authority to assess fees against litigants who have acted in bad faith. See Chambers v. NASCO. Inc., 501 U .S. 32,45-46 (1991). Attorneys Fees Under 28 U.S.C § 1927 A § 1927 sanction may be appropriate when attorneys act in an "objectively unreasonable" manner. Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202 (lOth Cir. 2008). In exercising that judgment, attorneys should "regularly re-evaluate the merits of their claims and . . . avoid prolonging meritless claims." Steinert v. Winn Grp .. Inc., 440 F.3d 1214, 1224 (10th Cir. 2006) (citations omitted). Regardless of an attorney's subjective intentions, it is objectively unreasonable to continue asserting claims that have no factual or legal basis and thus reasonably should have been dismissed voluntarily. Id. [emphasis added] "The term 'unreasonably' necessarily connotes that the district court must compare the attorney's conduct against the conduct of a 'reasonable' attorney and make a judgment about whether the conduct was acceptable according to some objective standard. Page 9 of14 RAS00000070 Case 9 :15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 10 of 14 Attorneys Fees Under the Court's Inherent Power The "bad faith" exception to the American Rule exists for cases in which "the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Alyeska Pipeline Service Co. v. Wilderness Society , 421 U.S. at 258 (citations and quotation marks omitted). In those cases, courts may exercise their "inherent power" to award fees in order to vindicate judicial authority and compensate the prevailing party for expenses caused by the opponent's obstinacy. Chambers v . NASCO. In c., 501 U.S. 32, 46 (1991) (citation omitted). The term 'vexatiously' similarly requires an evaluation of the attorney's objective conduct." Amlong & Amlong. PA v. Denny's. Inc., 500 F. 3d 1230 -Court of Appeals, 11th Circuit 2007. "Whether the bad faith exception applies turns on the party's subjective bad faith." F.TC. v. Kuykendall, 466 F.3d 1149, 1152 (lOth Cir. 2006) (citations and quotation marks omitted). In unusual cases, an extraordinarily meritless claim may satisfy the "subjective bad faith" requirement. Sterling Energy. Ltd. v. Friendly Nat'/ Bank, 744 F.2d 1433, 1437 (lOth Cir. 1984). A claim that is "patently frivolous and that, like fraud, is also opprobrious by nature and designed to cause embarrassment and humiliation" may raise an inference of subjective bad faith. Id. at 1437 [emphasis added] When you read O'Hare's account of the September 3, 2014 meeting at which the Town and Sweetapple threatened to include O'Hare in their RICO case if he didn't drop ALL his claims, the specter of "embarrassment and humiliation" of being publicly sued under RICO was abundantly clear. Again, to impose sanctions under the court's inherent power, the court must fmd bad faith. See In re Walker, 532 F.3d 1304, 1309 (11th Cir. 2008) (explaining "a fmding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent."). [emphasis added] Clearly, knowing what the Town did before they filed the RICO lawsuit, and to have included O'Hare anyway, is reckless. Further, the i nherent power of a court can be invoked even if procedural rules exist which sanction the this type of conduct. Chambers v. NASCO. Inc., 501 U.S. 32,49 (1991) [emphasis added]. Page 10 of14 RAS00000071 Case 9:15-cv-80182 -KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 11 of 14 ANALYSIS Did Sweetapple "regularly re-evaluate the merits of their claims and ... avoid prolonging meritless claims?"-the 28 USC 1927 test in Steinert v. Winn Grp., Inc., 440 F.3d 1214. As the undisputed evidence indicates, the answer is NO. Having found no evidence of O'Hare's complicity in a so-called RICO scheme, despite several depositions of various individuals, and in contradiction of the testimony of their star witness, Chandler, the Town and Sweetapp1e deliberately and callously chose to include O'Hare in the RICO Class Action Complaint. "Despite [his] subjective intentions," was Sweetapple "objectively unreasonable to continue asserting claims that had no factual or legal basis and thus reasonably should have been dismissed voluntarily"? the 28 USC 1927 test in Steinert v. Winn Grp., Inc., 440 F.3d 1214 . As the undisputed evidence would indicate, the answer is YES. Given the totality of the evidence available to the Town-as evidenced by Chandler's testimony and Sweetapple's own affidavit, both the Town and Sweetapple were objectively unreasonable to continue to assert claims that had no factual or legal basis against O'Hare, by including him in the RICO Class Action Complaint. Did the Town, as "the losing party [act] in bad faith, vexatiously, wantonly, or for oppressive reasons?" the test in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. at 258 It was clear from Mayor Morgan's after-the-fact admission that " ... the RICO action is finished ... " and that "the effect of the RICO action was exactly what we tried to accomplish and that was to stop those lawsuits." The Town's self-professed intent the whole time was to stop O'Hare's from exercising his rights under the Florida Constitution -to file public records requests, and when the Town fails to allow access as defined by Statute and case law, to file a lawsuit. Surely, for the Government to utilize the Courts for such an unconstitutional purpose is in bad faith, vexatiously, wantonly, or for oppressive reasons." Did the Town "knowingly or recklessly raises a frivolous argument?" the test In re Walker, 532 F.3d 1304, 1309 (11th Cir. 2008) Again, as the undisputed evidence indicates , the answer is NO. Having found no evidence of O'Hare's complicity in a so-called RICO scheme, despite several depositions of various individuals, and in contradiction of the testimony of their star witness, Chandler, the Town and Sweetapple deliberately and callously chose to include O'Hare in the RICO Class Action Complaint. Page 11 of 14 RAS00000072 Case 9:15-cv-80182 -KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 12 of 14 RELIEF REQUESTED WHEREFORE, Christopher O 'H a re re s pectfull y requests that t he Co urt: (a) Have a due process h earing to allow evid enc e to be heard ; then (b) Award O'Hare hi s attorneys' fees and co sts in h is defens e of the RICO Com pl aint and Appeal, spec ifi call y against the Town 's attorneys-Sweetappl e; Richman an d O'Connor; (c) In the a lternative, Award O 'H are his attorneys ' fees and co sts in his defen se of the RICO Complaint and Appeal, specifically against the Town, the Wantman Group AND the attorneys for the Town -Sweetapple; Richman an d O'Connor. (d) A ny other re li ef the Court finds appropriate. CERTIFICATE OF CONFERENCE I HEREBY CERTIFY that in accordance with local rule 7.1 , I conferred with all parties who may be affected by the relief sought in the motion and made a good faith effort to resolve the issues raised in the motion and have been unable to do so. Respectfully submitted July 21,2016 By: Is / Louis Roeder Louis Roeder, Es q. F la. BarNo. 00043 16 7414 Sparkling Lake Road Orlando, FL 32819 Phone:407-758-4194 Email: lo u@ lou roed er .com Counsel for Defendant, Christopher F. O'Hare Page 12 of 14 RAS00000073 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/2112016 Page 13 of 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 21, 2016 a true and correct copy of the foregoing , was electronically filed with the Clerk using the CMIECF filing system and served upon on all counsel of record and/or pro se party(ies) listed below, either via transmission of Notices of Electronic Filing generated by the CMIECF filing system or, if indicated, in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. By: Is/ Lo uis Roeder Louis Roeder, Esq. Fla. BarNo. 0004316 7414 Sparkling Lake Road Orlando, FL 32819 Phone:407-758-4194 Email: lou @louroeder.com Counsel for Defendant, Christopher F. O'Hare Page 13 of14 RAS00000074 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 14 of 14 SERVICE LIST Steven D. Weber sweber@bergersingerman.com EtanMark emark@bergersingerman.com Mitchell W. Berger mberger@bergersingerman.com BERGER SINGERMAN Las Olas Centre ll 350 E. Las Olas Blvd. Suite 1000 Fort Lauderdale, FL 33301 Tel: 954 .525.9900 Attorneys for Martin E. 0 'Boyle, Airline Highway LLC, Commerce Gp Inc., GC Acquisition Co. Inc., CRO Aviation Inc., Asset Enhancement Inc., Commerce Realty Group Inc., and Commerce Group Inc., Defendants Daniel DeSouza ddesouza@desouzalaw.com DESOUZA LAW, P.A. 101 N. Third Avenue Suite 1500 Ft. Lauderdale, FL 33301 Tel: 954.551 .5320 Attorneys for Denise DeMartini, Citizens Awareness Foundation Inc., Our Public Records LLC, Stop Dirty Government LLC, and Public Awareness Institute, Inc. Stuart R. Michelson smichelson@smichelsonlaw .com LAW OFFICES OF STUART MICHELSON 800q SE 3rd Avenue, 4th Floor Fort Lauderdale, FL 33316 Tel: 954.463.6100 Attorneys for Giovanni Mesa, Nicklaus Taylor and Ryan Witme, Defendants Joanne M . O'Connor, Esquire Florida Bar No.: 0498807 joconnor@jonesfoster.com JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, FL 33401 Telephone: (561) 659 -3000 Attorneys for Plaintiff, Town ofGulfStream Gerald F. Richman, Esquire grichman@richmangreer.com Leora B. Freire, Esquire lfreire@richmangreer.com Eric M. Sodhi, Esquire esodhi@richmangreer .com RICHMAN GREER, P.A. 250 Australian Ave., South, Suite 1504 West Palm Beach, FL 33401 Telephone: (561) 803-3500 Attorneys for Plaintiff, Town ofGulfStream Adam T. Rabin arabin@mccaberabin.com Robert C. Glass rglass@mccaberabin.com MCCABE RABIN, P.A. 1600 Forum Place, Suite 505 Palm Beach, FL 33401 Tel: 561.659.7878 Attorneys for William Ring, Jonathan 0 'Boyle And The O'Boyle Law Firm, P.C., Inc., Defendants Page 14 of 14 RAS00000075 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 1 of 57 EXIBHIT ''A'' RAS00000076 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 2 of 57 Case : 15-13433 Date Filed : 06/21/2016 Page : 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 15-13433 Non-Argument Calendar D .C. Docket No. 9:15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, WAN1MAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, MARTIN E. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOV ANI :MESA, an individual, et al., Plaintiffs -Appellants, versus RAS00000077 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 3 of 57 Case : 15-13433 Date Fil ed : 06 /2 1/2016 Page : 2 of 13 Defendants -Appellees. Appeal from the United States District Court for the Southern District of Florida (June 21, 2016) Before WILSON, ROSENBAUM and TILL PRYOR, Circuit Judges . PER CURIAM: The Town of Gulf Stream, Florida ("Gulf Stream" or the "town") and its contractor Wantman Group, Inc. ("Wantman") (collectively the "plaintiffs") appeal the dismissal of their class action complaint 1 under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U .S.C. §§ 1962(c), 1964(c). The plaintiffs' complaint was premised on, among other actions, the defendants' alleged efforts to inundate the town with public records requests in an attempt to cause a violation of Florida's Public Records Act, Fla. Stat. § 119.07 (the "Act"), and then to threaten litigation and the possibility of liability for attorneys' fees to 1 The plaintiffs defmed the proposed class to include the following: All state or local municipalities, municipal agencies, or private contractors in the State of Florida, who have been served with a public records request by any of the Defendants and who either (a) paid a settlement amount in conjunction with, or to resolve the public records request; or (b) incurred attorneys' fees and costs to respond to or litigate against public records requests from any of the Defendants. Compl. ~ 31, Doc. 1. Citations to "Doc." refer to docket entries in the district court record in this case . 2 RAS00000078 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 4 of 57 Case : 15-13433 Date Filed: 06/21/2016 Page : 3 of 13 extort an unreasonable settlement. The district court recognized the ''very difficult situation" the plaintiffs allegedly found themselves in, Doc. 4 7 at 4 , but nevertheless held that the plaintiffs failed to allege at least two predicate acts in support of their RICO claim. After careful review, we agree that the plaintiffs' allegations, although troubling, fail to state a claim under RICO. Therefore, we affirm. I. Gulf Stream is a tiny town of under 1,000 residents and just 17 full time employees.2 The defendants-Martin E. O'Boyle, William F. Ring, Christopher O'Hare, Jonathan R. O'Boyle, Denise DeMartini, and their associated companies-pummeled the town with nearly 2,000 public records requests, many of them frivolous, with no intention of actually reviewing the results. Examples of such requests included • "All email addresses created or received by the Town of Gulf Stream," Compl. Ex. B, Doc. 4-2 at 2 (No. 1 ); • "All phone numbers in the town's records," id. (No.3); and • "Any and all records containing a social security number," id. at 10, No. 322. 2 We derive these facts from the complaint's well-pled allegations, which we accept as true for purposes of the motions to dismiss . See Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). 3 RAS00000079 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Do c ket 07/21/2016 Pag e 5 of 57 Case: 15-13433 Date Fil ed: 06/21/2016 Page : 4 of 13 These and other bogus requests were "an essential first-step" in a "scheme to defraud and extort money from the class members." Compl. ~ 37, Doc. 1. The purpose of this onslaught of records requests was to induce a violation of the Act and then threaten a lawsuit, or actually file one, which could entitle the defendants to prevailing party attorneys' fees under Fla. Stat.§ 119.12.3 "It is this threat of prevailing party attorneys' fees," the plaintiffs alleged, "that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme." Compl. ~ 52, Doc. 1. The defendants then demanded unreasonable settlements and threatened to file more frivolous records requests if the town did not settle the claims. Since 2013, the defendants have filed 43 public records suits against the town. 4 3 Florida Statutes § 119.12 provides: If 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. Fla. Stat. § 119.12. 4 In addition to the public records disputes litigated in state court, Martin O 'Boyle and the town have had other disagreements, some of which have been litigated in federal court. See, e.g., O'Boyle v. Thrasher, Ward, & Town of Gulf Stream, No. 15-10997, _F. App'x _, 2016 WL 158757 (11th Cir. Jan. 14, 2016) (affirming the district court's dismis sal ofO'Boyle's claims against the town under 42 U.S.C. § 1983); O 'Boyle v. Town of Gulf Stream, eta/., No. 9 :14-cv- 80317-DMM (S .D . Fla. Mar. 30, 2015) (granting the defendants ' motion for summary judgment and dismissing a First Amendment challenge to the town's sign ordinance), appeal docketed, No. 15-13964 (11th Cir. Sept. 3, 2015). We recently affirmed the award of attorneys ' fees in the 4 RAS00000080 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 6 of 57 Case : 15 -13433 Date Filed: 06/2112016 Page : 5 of 13 In addition, defendant O'Hare employed aliases when making public records requests to avoid incurring a special service charge the town would have otherwise imposed. Florida authorizes the town to condition public records production on the payment of certain costs and expenses, but only "[i]fthe nature or volume of public records requested to be inspected or copied ... is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both." Fla. Stat. § 119.07(4)(d). When the town began to assess special service charges against O'Hare for his voluminous requests, he started using fake names to hide his identity. The defendants also lodged a bogus public records request with Wantman, a government contractor also covered by the Act. See Fla. Stat.§ 119.0701.5 When the defendants did not receive the document requested, they filed suit and promptly demanded nearly $4,000 to settle the claim. § 1983 action. 0 'Boyle v. Thrasher, Ward & Town of Gulf Stream, No. 15-10997, _F. App'x , 2016 WL 1426013 (11th Cir. Apr. 12, 2016). 5 During the relevant time, Fla. Stat. § 119.0701(2) (2003) provided that "each public agency contract for services must include a provision that requires the contractor to comply with public records laws." Florida recently amended this statute to specify precisely when a public records requester may bring suit against a contractor. See 2016 Fla. Law Serv. ch. 2016-20 (CSIHB 273) (codified at Fla. Stat.§ 119.0701(3)-(4) (2016)). 5 RAS00000081 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 7 of 57 Case : 15-13433 Date Fi led: 06/21/2016 Page : 6 of 13 Based on these and similar allegations, the plaintiffs filed a class action complaint on their own behalf and on behalf of other similarly situated state or local municipalities, municipal agencies , or private contractors. They alleged that each defendant committed at least one predicate act of mail fraud, wire fraud , or extortion, constituting a pattern of racketeering activity in violation of RICO, 18 U.S.C . §§ 1962(c), 1964(c). The defendants moved to dismiss arguing, among other points, that neither filing frivolous public records requests nor threatening to file or actually filing a lawsuit is a predicate act under RICO. The district court agreed, granted the defendants' motions to dismiss, and dismissed the case with prejudice. This appeal followed . n. "We review de novo the district court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the complaint's allegations as true and construing them in the light most favorable to the plaintiff." Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (internal quotation marks and citation omitted). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U .S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is insufficient if it ''tenders naked assertions devoid of further factual enhancement." Id. (internal quotations marks and citation 6 RAS00000082 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 8 of 57 Case : 15-13433 Date Filed: 06/21/2016 Page : 7 of 13 omitted). To survive a motion to dismiss, the plaintiff must plead "factual content that allows the court to d raw the reasonable inference that the defendant is liable for the misconduct alleged." !d. ill. To establish a federal civil RICO violation under§§ 1962(c) and 1964(c), the plaintiffs must prove the conduct of an enterprise through a pattern of racketeering activity and an injury to business or property by reason of the RICO enterprise. S ee Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282-83 (11th Cir. 2006). The district court dismissed the plaintiffs' RICO claim on the ground that the plaintiffs failed to allege a pattern of racketeering activity. We therefore focus on this element of the claim. A RICO "pattern of racketeering activity" requires at least two "qualifying predicate acts ," each of which constitutes "a violation of one of the state or federal laws described in 18 U.S.C. § 1961(1)." Raney v. Allstate Ins. Co ., 370 F.3d 1086, 1087 (11th Cir. 2004). The plaintiffs argue that they have adequately pled two types of predicate acts : (1) extortion under the Hobbs Act, 18 U.S .C . § 1951 , and (2) mail and wire fraud under 18 U.S.C. §§ 1341, 1343. S ee 18 U.S.C. § 1961(1) (listing v iolations of the Hobbs Act and the mail and w ire fraud statutes). We consider each type of predicate act in tum. 7 RAS00000083 Case 9 :15-cv -80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 9 of 57 Case : 15-13433 Date Filed : 06/21 /20 16 Page : 8 of 13 A. The Hobbs Act prohibits extortion, defined as ''the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 195l(b)(2). The plaintiffs contend that the defendants' "systematic use of unjustified lawsuits as part of a more extensive extortion scheme to obtain money" supports a claim of extortion under the Hobbs Act. Appellants' Br. at 18. Our precedent commands otherwise. We held in United States v. Pendergraft that a ''threat to file litigation against [the government], even if made in bad faith and supported by false affidavits, [was] not 'wrongful' within the meaning of the Hobbs Act." 297 F.3d 1198, 1208 (11th Cir. 2002). The issue was whether a threat to add a bogus claim in a federal lawsuit against a county government in an effort to force a large settlement could support a Hobbs Act violation. "[U]nder our system," we explained, "parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights." Id. at 1206. Thus , "litigants may be sanctioned for only the most frivolous of actions." ld. And even then, such sanctions-through tort actions for malicious prosecution, for example-"are heavily disfavored." Id. We also expressed confidence in the ''time-tested procedures" of the courts to resolve disputes in litigation by "separating validity from invalidity, honesty from 8 RAS00000084 Case 9 :15-cv-80182-KAM uocument 54-1 Entered on FLSD Docket 07/21/2016 Page 10 of 57 Case : 15-13433 Date Fi led : 06/21/2016 Page : 9 of 13 dishonesty." !d. Moreover, citizens have a constitutional right to petition the government for redress under the First Amendment. Id. at 1207. For these reasons, we rejected the contention that a threat to file litigation against the government can trigger Hobbs Act liability. Id. at 1206-1207. We clarified in Raney, a civil RICO case, that Pendergraft applies both to threats of litigation and actual litigation. Raney, 370 F.3d at 1088. In Raney, the plaintiff alleged that the defendants filed frivolous lawsuits in an effort to extort money from him. !d. at 1087. We held unequivocally that "the filing of a lawsuit may not state a claim for extortion under the federal RICO statutes." !d. The material difference between this case and Pendergraft or Raney is the number of times the defendants allegedly threatened to file a lawsuit or actually sued in an effort to extort money. Indeed, assuming the allegations in the complaint are true, as we must, the defendants have engaged in a pattern of frivolous litigation activity while abusing, on a grand scale, their statutory right to request public documents from the government. Nonetheless, the same concerns driving our decisions in Pendergraft and Raney are equally present here. Our judicial system, and the Act in particular, encourages citizens to use the courts to resolve public records disputes. Moreover, citizens have a constitutional right to petition the government for redress. We believe that regardless of the scope and scale of the litigation, the courts are amply equipped to deal with frivolous 9 RAS00000085 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Doc ket 07/21/2016 Page 11 of 57 Case: 15-13433 Date Fi led : 06/21/2016 Page: 10 of 13 litigation. See, e.g., The Florida Bar v. Committe, 916 So. 2d 741 , 749 (Fla. 2005) (sanctioning an attorney for, among other things, "repeatedly attempt[ing] to relitigate the same nonmeritorious issue in an attempt to frustrate the legal process and to harass [an] attorney debt-collector"). Thus, Pendergraft and Raney control, and the alleged misconduct cannot as a matter of law constitute the predicate act of extortion for purposes of the plaintiffs' civil RICO claim. The plaintiffs also alleged that the defendants abused their right to request public records; they argue on appeal that this abuse amounted to a RICO predicate act. As alleged in the complaint, the defendants intentionally set the town up to violate the Act. Whether it was a setup or not, the town may be on the hook for attorneys' fees if it failed to respond timely to the requests. See Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 124-25 (Fla. 2016) (holding that once the court determines that the defendant ''unlawfully refused" to permit a public record to be inspected or copied, the court must assess reasonable attorneys ' fees, whether or not the defendant acted in good faith (citing Fla. Stat. § 119 .12) ); PromenadeD 'Iberville, LLC v. Sundy, 145 So. 3d 980, 983 (Fla. 1st DCA 2014) (holding that a delay in producing non-exempt public records for no legally sufficient reason constitutes a violation of the Public Records Act). We nevertheless agree with the district court that the alleged abuse of the Act "must be addressed in the individual lawsuits filed, or through a change in the laws 10 RAS00000086 Cas e 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 12 of 57 Case: 15-13433 Date Fi led : 06/21/20 16 Page: 11 of 13 by the Florida Legislature ." Doc . 47 at 8. RICO and the Hobbs Act in particular do not provide the remedy the plaintiffs seek. B . The plaintiffs next contend that mail and wire fraud constitute the predicate acts necessary to support their RICO claim. Specifically, they argue that O 'Hare 's use of aliases to avoid incurring a special service charge when lodging public records requests amounted to fraud . We are unpersauded . "The elements of mail and wire fraud are: (1) intentional participation in a scheme to defraud, and, (2) the use of the interstate mails or wires in furtherance of that scheme." United States v. Maxwe ll, 579 F.3d 1282 , 1299 (11th Cir. 2009). ''Nondisclosure of material information can constitute a violation ofthe mail and wire fraud statutes where a defendant has a duty to disclose, either by statute or otherwise." McCulloch v. PNC Bank Inc., 298 F.3d 12 17, 1225 (11th Cir. 2002); a ccord Am. United Life Ins. Co . v. Martinez, 480 F .3d 1043 , 1065 (11th Cir. 2007) (holding that the failure to allege a duty to disclose is fatal to a RICO claim premised on mail fraud arising out of alleged nondisclosure of material information). Although the plaintiffs argue that O 'Hare 's concealment of his true identity to avoid incurring a special service charge constituted fraud, they alleged no facts to plausibly suggest that O 'Hare had any duty to disclose that information. To the 11 RAS00000087 Case 9:15-cv-80182-KAM Uocument 54-1 Ente red on FLSD Docket 07/21/2016 Page 13 of 57 Case: 15-13433 Date Fil ed: 06/21/2016 Page: 12 of 13 contrary, Florida law recognizes a person's right to request public records anonymously. See Chandler v. City of Greenacres, 140 So . 3d 1080, 1084-85 (Fla. 4th DCA 2014) (holding that a city cannot require a public records requester to provide identifying information, which "could have a chilling effect on access to public records and is not required by the Public Records Act"). Accordingly, the plaintiffs failed to allege the predicate acts of mail and wire fraud to support their RICO claim. Because we conclude that the plaintiffs' mail and wire fraud allegations fail on this basis, 6 we do not consider the defendants' alternative reasons for rejecting it. IV. The allegations in the plaintiffs' complaint paint a frustrating picture. Accepting those allegations as true, the defendants have engaged in a concerted effort to capitalize on the relatively unfettered access to public records Florida has granted its citizens by bombarding small towns and municipalities with public records requests to which they cannot respond adequately. As distasteful as this 6 See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) ("We may affirm the district court's judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below."). 12 RAS00000088 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 14 of 57 Case : 15-13433 Date Fi led : 06/21/2016 Page : 13 of 13 conduct may be, the allegations do not support a RICO claim under our precedent. We therefore affirm the dismissal of the plaintiffs' complaint.7 AFFIRMED. 7 Some of the defendants have also filed a motion for sanctions under Federal Rule of Appellat e Procedure 38 . We D ENY that motion . 13 RAS00000089 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 15 of 57 Case : 15-13433 Dat e Fi led: 06/21/2016 Page : 1 of 1 David J. Smith Clerk of Court UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ELBERT PARR TUITLE COURT OF APPEALS BUllDING 56 Forsyth Street, N.W. Atlanta. Georgia 30303 June 21, 2016 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 15-13433-DD Case Style: Town of Gulf Stream, et al v. Martin O'Boyle, et al District Court Docket No: 9 : 15-cv-80 182-KAM For rules and forms visit www cal l uscoyrts goy This Court requires aU counsel to file documents electronicaUy using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment bas thi s day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b). The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3 , and the time for filing a petition for rehearing en bane is governed by 11th Cir. R. 35-2 . Except as otherwise provided by FRAP 25(a) for inmate filing s, a petition for rehearing or for rehearing en bane is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion fo r attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3. Please note that a petition for rehearing en bane must include in the Certificate of Interested Persons a complete list of all per sons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R . 26.1- 1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en bane. See 11th Cir. R. 35-5(k) and 40-1 . Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either iss uance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later). Pursuant to Fed.R.App.P. 39, costs taxed against appellants. The Bill of Costs form is available on the internet at www.ca ll .uscourts.gov For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions , please call E lora Jackson. DD at (404) 335-6173. Sincerely, DAVID J . SMITII, Clerk of C ourt Reply to : JeffR. Patch Phone#: 404-335-6161 OPIN-1 A I ss uance of Opinion With Costs RAS00000090 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 16 of 57 EXIBHIT ''B'' RAS00000091 Case 9: 15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 17 of 57 ' Case 9:14 -cv-81250-KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 1 of 5 MARTIN E. O'BOYLE, Plaintiff, V. UNlTED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLOIUDA Case No. 9 :14-cv-81250-KAM ROBERT A. SWEETAPPLE and THE TOWN OF GULF STREAM, Defendants. ______________________________ ./ AFFIDAVIT OF ROBERT A. SWEET APPLE, ESQ. BEFORE ME, the undersigned authority, personally appeared ROBERT A. SWEET APPLE, ESQ., who, upon being first duly sworn, deposes and says : I . My name is Robert A. Sweetapple. I am over the age of eighteen (18) and am competent to te stify in this matter. 2 . I am a partner and managing member of the Boca Raton office of the law firm of Sweetapple, Broeker & V arkas, P. L. I have been li ce nsed to practice law in the State of Flo rida since 1980 and have been practicing for thirty-six (36) years . I am licensed to practice in the Un it ed States District Coutt for the Southern District of f lorida , the Eleventh Circuit Cou 11 of Appeals, and the United States Supreme Court. I am Florida Bar Board Certified in both civil trial and business lit igation. 3. The information conta ine d in this Affidav it is based on my personal knowledge . 4. In or around April 2014, I was retained as Special Counse l for the Town of Gulf Stream (the ·'Town") to defend a litany of active and threatened lawsu its for purpo11ed violations of Chapter 119, Florida Statutes (the "Public Records Laws"). EXHIBIT Page I of 5 ~0 RAS00000092 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 18 of 57 · Case 9:14-cv -81250-KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 2 of 5 Case No.9 : 14-cv-81250-K.AM 5. These laws uits were brought by Martin E. O 'B oyle, Christopher O'Hare, affiliate entities, or some combination of the aforementioned . 6. The Town ha s other lawyer s and law fim1s retai11ed to act as it s counsel on any given matter, including , but not limited to, Jotm C. Rando lph , Esq., and Joanne M . O'Connor, Esq ., who are lawyers with the law finn of Jones Foster Johnston & Stubbs, P.A. 7. In or around April of 2014, in my capaciry as Special Counsel for the Town, I attended a joint scheduling conference for severa l of Mr. O'Hare's outstanding public records cases against the Town . Mark Hanna, Esq., appeared at the joint sc heduling conference as counsel fo r Mr. O'Hare. Ms . O'Connor and I attended the joint scheduli ng conference on behalf of th e Town. 8. Before and aner the April 2014 joint scheduling conference, 1 engaged in initial settlement discussions with Mr. Hanna. Further, I attempted to elicit infonnation from Mr . Hanna about Mr. O'Hare's relationship with Mr. O'Boyle. 9. On or about May 30,2014, I fi led a Mo ti on to Disqualify T he O'Boyle Law Firm, P.C., Inc ., Mr. O'Boyle's son's law ftrm, in one of th e lawsuits I was retained to defend on behalf of the Town. 10. In or around Jt1ly 1, 20 1'1, Joel E. Chandler contacted me regarding his res ignation as Executive Director from CAFI. I I . lt is my und erstandi ng that tvlr. Chandler directed the above mentioned conespondence to m e because I was Specia l Cou nse l for th e Town and th at CAF I had, at the time, at least two pendi ng lawsuits against the Town for alleged violations of the Public Records Laws . Page 2 of 5 RAS00000093 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07 /21/2016 Page 19 of 57 Case 9:14-cv-81250-KAM Document 146 -12 Entered on FLSD Docket 06/24/2016 Page 3 of 5 Case No . 9: 14-cv-8 1250-K.AM 12 . Mr. Chandler informed me that, based on a number of actions which he considered to be potentially fraudulent, cr im inal, or unethica l, he had resig ned from hi s position . He further offered to provide sworn testimony to this effect. 13 . After confirming th at Mr . Chandler sought ind ependent counsel from at least one other attorney, I arranged for him to give a narra tive -style sworn stat ement about his observations while Executive Director of CAF I. Mr. Chandler gave a sworn statement on July 23,20 14. 14 . Mr. Chandler essentially testified as follows: Plaintiff headed a windfall scheme wherein a purpm1ed nonprofit, CAF I, d irected hundreds of public records requests to the Town, as well as other governmenta l agencies and contractors, in an effort to force nonc ompliance with the Public Records Laws due to the sheer volume of requests it rece ived. Thereafter, CAFI filed over a hu ndred lawsui ts throu ghout the state by and tluough the O'Boyle Law Fi rm , P.C ., Lnc . (the "Finn"), an alleged int erstate law firm owned by Plaintiffs son, to enforce Public Records Laws. E ith er at the direction of CAF l or on it s own, the Finn demanded attorneys' fe es from governmental defendant s in ex cess of those earned, thereby creating a "windfall." 15 . Mr. Chandler further testified that CAF I and the Finn, as well as other entities owned by Plaintiff, were housed within th e s am e building, th at CAF I was required to use th e Fit1n to file all lawsuits under the Public Records Act, and that attorneys with the Fim1 djscussed c lie nts' cases with, and were a dvi sed by, non-l awyers who were em ploy ed by Plaintiff's other entities. 16 . On or about Jul y 24, 2014, I attended a scheduling conference wi th Mr. Hanna and Ms . O 'Connor at Ms . O'Connor's office. Page 3 ofS RAS00000094 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 20 of 57 Case 9:14-cv-81250-KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 4 of 5 Case No . 9: 14-cv-81250-K.AM 17. In an effort to encourage Mr . O'Hare to settle his claims against the Town and on the belief that Mr. O'Hare was patt of Mr. O'Boyle's scheme, I advised Mr. Hanna thnt the Town was investigati ng and considering a class ac ti on lawsuit agai nst Mr. 0' Boyle and all ot hers involved in the sc hem e described by Mr . Chand ler during__his Sworn Statement under the civil provision s of Florida 's Rackete er lnt1ucn ccd and C01111 l t Or gan iza ti ons Ac t "IUCO Act"). 1 furU1er advised Mr. Hatma tha t if Mr. O'Hare resolved hi s pending lawsuits against the Town, he co uld avoid being named as a defendant in any such lawsuit. 18. On or about September 3, 20 I 4, 1 altcnded a confide nti al settlement conference with Louis Roeder, Esq., Mr. Hanna, Mr. O'Hare, Ms . O'Connor, and the Mayor of the Town, Scott Morgan. Upon information and belief, Mr. Roeder represents Mr. O'Hare in some of his various other lawsuits against the Town. 19. Plaintiff was not at the above reterenced sett lement conference. 20. Everyone who attended the September 3, 2014 settl ement conference signed a handwritten contact stating that the discussions of that date were to remain confidential. 21. During the course of this confidential settlement conference, I s ummarized th e infonnatio n I obtained from Chandler. I further stated that based u on this information 1he Town may pursu e a civil IU CO laws uit agai nst Mr. O'Boyle and others invo lv ed in thi s all ege d scheme. 22. Upon information and be lief that Mr. O'Hare was involved in the scheme described by Mr. Chand ler, 1 once again advised Mr. O 'Hare, directly and lhrough his counsel, that he could avoid bein g named as a defendant in any subsequent IUCO lawsui t if he agreed to resolve his various actions against the Town. Page 4 of 5 RAS00000095 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 21 of 57 Case 9:14-cv-81250 -KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 5 of 5 Case No . 9:14-cv-81250-K.AM 23. At no point during any of the above mention ed conferences did 1 refer to Mr. O'Boyl c as a felon or state that he was engaged in felonious aclivity . 24. All stn1cmcnts made during the above mentioned conferences were my legal opinion, which wus based upon th e infor mation I gathered from Mr. Chandler and othenvisc during my investigation of Mr. O'Boylc, and were made for the sole purpose of encouraging Mr. O'Hare to settle his various claims agains t the Town . 25 . All of these discussions were held for the purpose of settlement. 26. Mr. O'Boyle was never present at any of the above mentioned conferences or discussions . for If'/ J tf-Cif V .J b'T[J STATEOF.FL~A COUNTY OF fr!,llf~Je)f FURTHER AFFIANT SA YETH NAUGHT. f)L~ BEFORE ME, the w1dersigned authority, personally appeared ROBERT A. SWEET APPLE, who, be ing fi rst duly sworn according to law, deposes and snys that he executed the foregoing Affidavit and th at the representations therein are true and correct to the best of his knowledge and belief. SWORN TO AND SUBSCRIBED TO before me this ?-') -r ~ day of Jtme, 2016 . Individual personally known [ vJ or Individual produced identification [ vJ Page 5 of 5 RAS00000096 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 22 of 57 EXIBHIT ''C'' RAS00000097 11 1 1 8J€9~e 9:15-cv-80182-KAM uocument~'l:C il!!~~n i i ~Sl)ii !!JOOKet 07/21/2016 Page 23 of 57 il Chris O'Hare -"I will not be silenced!" Joel Chandler <joelchandler@fogwatch.org> To: Lou Roeder <lou@louroeder.com > Lou, Louis Roeder <lou.roeder@gmail.com> Mon, Nov 17, 2014 at 12 :24 PM Lest there be any doubts about my feelings on this issue, I believe Chris has done nothing wrong and that the has nothing to do with the RICO allegations . I bel ieve (and have stated to Sweetapple and O'Conner) that the Town should concede to Chris 's demands and be done with it. Chris is a victim of the Town's foolishness . Joel [Quoted text hidd en ) [Quoted text hidd en) <I will not be silenced 111414.pdf> https ://mail.googl e.com/mai l/u/OI?u i=2&ik=b2c b720122&vi ew=!X&sear ch=inbox&msg=149bec852b6ae853&siml=149bec852b6ae853 1/1 RAS00000098 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 24 of 57 O'Hare Speech before the Gulf Stream Commission Nov 14, 2014 "I will not be silenced!" 3 years ago I criticized a police officer when I heard him call workers at my home BEANERS. A few weeks later this officer searched the inside of my home uninvited and without a warrant. He then took pictures of the inside of my home from over my rear fence. This officer came back later and again tried to enter my home uninvited and without a warrant but found the doors locked . He then spied into my private home by looking over the rear fence again. This same officer then fabricated a false police report and lied about what he did and why he did it. My complaints to the Town about this have produced no results; not even an apology. Instead Mr. Thrasher waged a campaign against me of retaliation and abuse by denying my permits, inciting my neighbors and fabricating false code violations . But I would not be silenced. I made numerous public record requests . I tried to call attention to the Town's abuse with a website and political art. But have gotten nowhere with the Town . I have complained to the courts and have been retaliated against yet again , this time by a propaganda campaign aimed at silencing me once more by accusing me of harassing the Town and wasting the Town's resources and money. But I will not be silenced. Then in a desperate attempt to force me to give up my complaints and be finally silenced, each commissioner has voted to accuse me of criminal racketeering and to use the courts as a weapon to retaliate against me and suppress my free speech. Each member of this commission has collaborated to concoct a fictitious legal complaint against me solely in retribution and retaliation for themselves having been brought before the courts. I have been warned by Mayor Morgan through his attorney that I must withdraw ALL my complaints or be drawn into a long and expensive RICO lawsuit. That is extortion and I will not be silenced. This RICO accusation is untrue but it is a ringing bell that cannot be unrung. It is a callous and malicious attempt to destroy my character and it will not go unpunished. The Town has chosen to fight a long and costly battle. I have made numerous attempts to resolve this and been rebuffed. I am speaking today to try to mitigate some of the propaganda damage inflicted on my by the commission. But I am just a citizen fighting a juggernaut of power and money. But I will not be silenced. RAS00000099 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 25 of 57 EXIBHIT ·~o·· RAS00000100 Case 9 :15-cv-80182-KAM uocument 54-1 Entered on FLSD DocKet 07/21/2016 Page 26 of 57 1 2 3 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 9:14-cv-81250-KAM 4 MARTIN E. O 'BOYLE, 5 Plaintiff, 6 -vs- 7 ROBERT A. SWEETAPPLE AND MAYOR SCOTT MORGAN, 8 Defendants . 9 _______________________ ! 10 11 12 DEPOSITION OF JOEL CHANDLER February 24 , 2016 1 13 Taken By Counsel for Defendant , Sw eetapple Volume 1 of 2 14 15 16 17 18 19 20 21 22 Reported By: Megan M. Soria 23 Notary Publ i c (Pag es 1-195) Wednesday, February 24, 2016 10 :30 a .m . - 4 :50p .m. Esquire Deposition Solut i ons 4927 Southfork Drive Lakeland, Florida State of Florida at Large 24 Esquire Deposition Solutions -Tampa Of fi ce Phone -813 .221.2535, 800 .838.2814 25 Esquire Job No. 118775 ESQUIR,~ 800.211.DEPO (3376) E squireSolutions. com RAS00000101 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 27 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE 1 APPEARANCES: 2 DANIEL DESOUZA, ESQUIRE DeSouza Law, PA 3 1515 North University Drive, Suite 209 Coral Springs, Florida 33071 4 954.780 .8262 5 On Behalf of Plaintiff February 24, 2016 2 (Appeared via telephone conference call) 6 7 JOSHUA A. GOLDSTEIN, ESQUIRE Cole , Scott & Kissane, PA 8 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 9 561.383.9200 10 On Behalf of Defendant, Sweetapple 11 12 HUDSON C. GILL, ESQUIRE Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA 13 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 14 954.463.0100 15 On Behalf of Defendant, The Town of Gulf Stream 16 LOUIS ROEDER, III Law Office of Louis Roeder 17 7414 Sparkling Lake Road Orlando, Florida 32819 18 407.352.4194 19 On Behalf of Chris O'Hare 20 21 22 23 24 25 800.211 .DEPO (3376) EsquireSolutions.com RAS00000102 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 28 of 57 1 2 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE VOLUME 1 INDEX WITNESS February 24, 2016 3 PAGE 3 JOEL CHANDLER 4 Direct Examination by Mr. Goldstein .............. 4 5 Errata Sheet ................................... 192 6 Certificate of Reporter ........................ 195 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 4 2 5 VOLUME 1 EXHIBITS No. PAGE 1 Timeline ................................. 49 2 Sunbiz Filing ............................ 82 3 Affidavit ............................... 100 4 Complaint ............................... 166 5 Sworn Statement ......................... 174 6 Subpoena ................................ 183 ~ESQUIR.E 800.211.DEPO (3376) Esquire Solutions. com RAS00000103 Case 9:15-cv-80182-KAM uocument 54-1 Entered on FLSD DocKet 07/21/2016 Page 29 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE February 24, 2016 4 1 Deposition was taken before Megan M. Soria, Court 2 Reporter and Notary Public in and for the State of 3 Florida at Large, in the above cause. 4 5 THE COURT REPORTER: Do you swear or affirm that 6 the testimony you•re about to give will be the truth, 7 the whole truth, and nothing but the truth? 8 THE WITNESS: I do. 9 THE COURT REPORTER : Thank you. 10 THEREUPON, 11 JOEL CHANDLER, 12 having been duly sworn or affirmed , was examined and 13 testified as follows: 14 DIRECT EXAMINATION 15 BY MR. GOLDSTEIN: 16 Q. Good morning , Mr. Chandler. My name is Joshua 17 Goldstein from the law firm of Cole , Scott, Kissane. I 18 represent Robert Sweetapple . 19 MR. DESOUZA: Josh, you •re going do have to speak 20 up. 21 MR . GOLDSTEIN: No problem. 22 BY MR. GOLDSTEIN: 23 Q . I represent Robert Sweetapple in this matter. 24 I'm going to ask you a series of questions today, not 25 trying to trick you, not trying to get you to a n swer 800.211.DEPO (3376) EsquireSolutions. com RAS00000104 Case 9 :15-cv-80182-KAM LJocument 54-1 Entered on FLSD DocKet 07/21/2016 Page 30 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE 1 character or something. February 24 , 2016 172 2 Q. So Marty had a fair amount of animosity toward 3 Mr. Sweetapple? 4 A. I would say so. That was my impression. 5 Q. How many times did you speak with my client? 6 A . We have talked quite a few times. It's not like 7 we hang out. I think this is only the second time we 8 have actually seen each other face to face. All of my 9 interactions with Bob have been very pleasant. Th ey 've 10 been cordial. I am confident that he and I probably see 11 the world very differently on many, many issues. But I 1 2 don't like I say, I don't make this stuff personal. 13 Leave me and my family alone, and we are good. Start 14 fucking with little old Black ladies , and we are goin g 15 to have a problem. But other than that , I don't really 16 care. I like Bob. He 's b een nice to me. I don 't agree 17 with everything that I have heard, but I don't know that 18 everything I have heard is true. 19 Q. And by e verything you heard, you mean eve rything 20 you have heard from Mr. O'Boyle? 21 A. Yes. I mean, I think that --I thought that the 22 I t o ug t the RICO laws u i t wa s fl l a dvi sed for a 23 whole host of reasons , n ot the l east of wh i ch is making 24 a pub l i c records request , in and of itself , is no t a 25 cri mina l act . I'm not a RICO attorney , so what do I 800.211 .DEPO (3376) EsquireSolutions. com RAS00000105 Case 9 :15-cv-80182 -KAM Document 54 -1 Entered on FLSD Docket 07/21/2016 Page 31 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE February 24 , 2016 173 1 know? I watch the Sopranos, but what do I really know 2 about that kind of stuff. 3 I, frankly, have been very disappointed in the 4 approa ch that the establishment has taken, and Bob is 5 not the establishment, but he is an at torney for the 6 establishment, which doesn't make him a bad guy. I, 7 like most peopl e , try --I think of people on the other 8 side of me, "other," as being somewhat monolithic, and I 9 recognize that's a fallacy. But I do think the 10 establishment 's taking the wrong approac h to try to 11 resolve the complaints they've got with people like 12 Marty O'Boyle. 13 I vehemently disagree with --I don't know that 14 this is necessarily Bob's doing, but the To~m going 15 after Chris O 'Hare , I comple e y disagree with that . 16 And my perception is, based particularly on a RICO 17 complaint, that there is sort of this lumping Chris and 18 Marty into the same cabal . I just don't have any --my 19 experience with Chris has been nothing but I don't 20 have anything negative to say about Chris, and I'm 21 baffled as to why he's hanging out with Marty. But we 22 all make poor choices sometimes. 23 Q. So you met with Mr. Sweetapple? 24 A. Yes. 25 Q. And I believe you testified previously that you 800.211.DEPO (3376) EsquireSolutions. com RAS00000106 Case 9 :15-cv-80182-KAM L.Jocument 54-1 Entered on FLSD DocKet 07 /21/2016 Page 32 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE February 24, 2016 178 1 about RICO is from watching the Sopranos. I don't 2 understand the ins and outs of RICO. What I think I 3 understand is that there has to be an underlying 4 criminal activity. I don't think that making a public 5 records request in and of itself, or even making 6 tnousands of public records requests on the Town of Gulf 7 Stream is an illegal action. There may be a whole bunch 8 of other illegal actions . 9 I mean, I'm my stified, really mystified, given 10 what I think are just clear evidence that I have 11 prov ided to anybody that wants to see it, that there was 1 2 the unlicense d pra ctice of law going on, both on behalf 13 of Jonathan O'Boyle and Denise DiMartini . I think that 14 there are really serious Bar issues as far as not having 15 engagement l etters , and not providing closing 16 statements, a nd engaging in settlement negotiations 17 without the consent of the client, and demanding 1 8 settlement amounts that are beyond entitlements when I 19 think they're being presented as entitlements. I can 20 think of a whole bunc h other issues to go after t hem on. 21 I just don't agree with the public r eco rds part of it. 22 Q. During your discussions with Mr. Sweetapple, did 23 he ever say to you that he felt Mr. O'Boyle was a 24 crimi nal ? 25 A. I don't rememb e r him using thos e words . No. 800.211.DEPO (3376) EsquireSolutions .com RAS00000107 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 33 of 57 JOEL CHANDLER Volume 2 of 2 OBOYLE -vs-SWEET APPLE February 24, 2016 249 1 today, I readily acknowledge that I know very little 2 about RICO prosecution, so I do recall having a 3 conversation with Marrett Hanna abou t it. And her 4 perspective as a former prosecutor is they're very 5 civil RICOs are very difficult to win. I was 6 particularly troubled, and T'm very confident that 7 expressed to Bob and to Joann O'Connor, my 8 disappointment and concern that they were involving 9 Chris O'Hare. I have been, I think, very clear with 10 everybody that I have ever talked to abou t t his issue, 11 that I think tha t 's ill advised, unfair. I don't think 12 he's the bad guy here at all . 13 Q. Well, the RICO lawsuit was filed on February 12th 14 of 2015. Do you recall roughly how far before that t his 15 conversation about a forthcoming RICO lawsuit happened? 16 A. I have no idea. 17 Q. Do you know whether it was 2014, 2015, or y o u 18 can't tell? 19 A. Already asked and answered. I don't know. 20 Q. Other than the one conversation we a re talking 21 about with respect to RICO, do you recall having any 22 other conversations with Mr. Sweetapple about RI CO , 23 racketeering? 24 A. I d on 't remember any specific conversat ions. 25 There was a brief period where Bob and I ta lked. I 800.211.DEPO (3376) Esquire Solutions . com RAS00000108 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD DocKet 07/21/2016 Page 34 of 57 EXIBHIT ''E'' RAS00000109 MARTIN O'BOYLE Plaintiff, v. UN ITED STATES DISTRICT COURT SOUTIIERN DISTRICT OF FLORJDA WEST PALM HC ACH DIVISION CAS E NO: 9:14-cv-81250-K/\M ROBERT/\.. SWEET APPLE AND MAYOR SCOTT MORGAN, Dde ndants. ------------------------------~1 AFFIDAVIT OF CHRISTOPHER F. O'HARE BEFORE ME, the undersigned a uthority , personally appeared CHRI STOP I IE R F. O'HARE., who. upo n being first duly swo rn , deposes and says: I . My name is CHRISTOP HER F. O'HA RE. I am over th e age of e ighteen (18) and a m competent to tes tify in thi s matt er. 2. I have pe rsonal knowledge of the facts here, and , if ca ll ed as a witness , co uld testify com petentl y thereto. 3. I have approxi mately two do zen public records s uits filed agai nst th e Town of Gu lf Stream for denial of public records sin ce Jun e 18,2013 . No ne of these ca ses have ye t to be resolv ed . 4. As of Septem ber 20 14, Mark II an na , Esq . repre sented me in at least ten (10) of th ose public reco rd s cases , as we ll as o th er non-public reco rd s cases. I am also represented in other public records suits and non-public record s laws uit s by attorneys wi th The O'Bo yle Law Page I of 7 I EXHIBIT RAS00000110 Firm. Louis Roeder was, and is , my personal coun se l. 5. I, a long with Mark Hanna and Lou Roeder, was invited by Attorney Robert Sweetapp le to meet with the Town's Mayor, Scott Morgan, along with another of the Town's attorneys, Joanne M. O'Connor, at Sweetapple's office on Septembe r 3, 20 14 . 6. T he purpose of the September 3, 20 14 meeting was to initiate sett lement discussions directl y between the Defend ant and me limited to those "ce1tain" pending public records cases hand led by Mark Hanna. As such , Sweetapple did not invite any attorneys fi·Otn the O'Boyle Law Firm . In reliance upon Swcetapple's limitatio n of the s ubject matter, I d id not expect to discuss anything except these certain cases and I therefore did not think it necessary to have anyone from the O'Boylc Law Firm who represented me in those o ther cases be prese nt to represent me at this meeting. 7. Based upon my understanding of the limi ted scope of our planned d iscussion I signed an agreem e nt to keep confidential any disc ussion made during the sett lement conference about those certa in pending cases. 8. The September 3, 2 014 sett lement conference s tarted with di scussions regarding o nl y those certain public records cases, and o nl y those public records cases handled by Mark Hanna, but Sweetapple then changed topic s a nd made a speech about Martin O'Boyle. Sweetapple described O 'Boyle as anti-social and mentall y unstable. Swcetapple ranted about O 'l3oyle 's behavior and described O 'Boyle 's act ions in a very unfavorable and derogatory ma nner. Sweetapple ta lked about hi s planned RI CO action again st O 'Boyle. Sweetapple sai d O'Boyle was using me and Swcetapp le knew I wasn't like this. He said life is too short and I s hould spend my time w ith m y family and n o t doing O 'Boyle's dirty work. Sweetapple ca ll ed O'Boyle a narcissist and mentally unstable -he used the word "ps yc hopath.'' Sweetapple Page 2 of7 RAS00000111 ap pear ed angry when he said this and he jabbed the air with hi s fi nge r for emphas is. Swceta ppl e's bod y lan g uag e s ugges ted to me th at his emph ati c state me nt s we re not hi s opini on but whe re facts he knew to be tru e. 9. Sweetapp le returne d to di sc uss in g my cases but he ex pand ed the di sc uss ion to includ e a ll my cases agai ns t th e Town of G ul f Strea m -no t j us t th e cases I had agree to d isc uss in co nfi dence. Swee ta pple in s isted th at m y cou nse l in th ose oth er cases, att o rn eys a t th e O 'Boyle Law Firm , we re not real att orn eys and th ey were e ngaged in th e unlicensed pr act ice of law whi c h he describ ed as a fel ony. He said th e Town wo uld never pay me their attorn ey fees becau se th e O 'Boy le law firm wa s not a le g itima te la w fitm . I 0 . Sweetapp lc said unl ess I cooperated with th e To wn aga in st O'Boyle a nd di smi ssed my cases I would be na med a co -defendant , acc use d o f being a co-co ns pirator . in a RJ CO sc heme with Martin O'B oy le to ex tort th e Town of Gu lf Stream . I un de rstood th at when Mr. Sweetap ple said th e word 'cxtot1 ' or referred to 'RI CO,' he meant a c rimina l ac t of s ubs ta nti a l magnitude . II . Wh en aske d O 'Connor was asked i f she agreed with Sweetappl e , O'Conn or said she th o ug ht what I was d o in g with th e publi c record s c ases was des pica bl e; a nd th at she thou g ht I was ha ra ng uin g G ulf Stream with my record reques ts . She des cribed my requests for publi c records as fr iv o lo us. She said th a t wo uld soon c han ge, th at J ones -foste r was we ll conn ec ted . 12. Sweeta ppl e we nt on to descr ibe his laws uit s aga in st th e C ity o f Boca Raton a nd how I was was tin g my time tryin g to s ue Gulf Strea m . He ta lke d a bou t ho w co mm o n it was fo r sma ll Towns to be have bad ly a nd nothin g I did was go in g to c ha nge tha t. 13. Sweetappl c agai n said he intended to s ue me as a co-co nspira tor in a sc he me to "shake down" th e Town of G ul f Strea m an d a bu se the legal process; th at I was in vo lve d in th e Page 3 of 7 RAS00000112 unlicen sed practice of law, and engaged in exto11i on with O 'Boyle. He again said I could avo id being inc lud ed in the RICO lawsuit if I agreed to cooperate wit h him. 14. Mayor Morgan added that the Town had witnesses to s upport their RICO complaint. 15 . Sweetapple then went through of li st of things that a w itn ess, Joe l C handler, told him about the O'Boyle Law Finn and Martin 0 ' Boyle's operations. He even said that Chandl er wanted to detail my in vo lvement ; but that he, Sweetapple, had protected me by preventing him from saying anything about me -yet. 16. I later di scovered that Chandler did, indeed, want to talk to Swcetapple about me and my public records cases; but C handle r wanted to make it clear to Sweetapple that , in hi s experience and opinion, I had nothing to do with the Town's RICO claims. C handl er had to ld Sweetapple and O'Connor that I had nothing to do with O'Boyle's acti vities. and that they should not involve me in any RICO complaint. Sweetapple failed to mention any of that and failed to accurately present facts conveyed by C handler. Chandl er later wrote that h e told Sweetapplc and O 'Connor l had done nothing wrong, that I had no thing to do w ith the RICO allegations and that I was a v ictim of the Town's foolishness. 17. Mayor Morgan then accused me of trying to shake down the Town, claimi ng that Martin O'Boyle and I were linked together; a nd that he became Mayor to spearhead a n aggressive defe nse. 18 . Mayor Morgan th en proposed a "non-negotiable di s missal" of ALL my la wsuit s against the Town; if I refused , I would be brought into the RICO claim as a defendant. He also said that all parties who used the O'Boyle Law firm were le gitimate defendants in the RICO compla int. Page 4 of7 RAS00000113 19 . Sweetapplc said that the Town wa s cons ultin g with Gerry R ichman. an expert o n RICO, who was building a case against Manin O'Boylc. Swcctappk s aid that the y already had a 40-page "indictment" ready to go; and that the State Att orney's office was investigating as well. It was clear to me that Sweetapple and Morgan were threatening criminal action against me if I refused to do as they said. 20. When asked if Richman was working for the Town, Sweetapple said Richman was "co-counsel " and was working for him , Swcctapplc. 21. Mayor Morgan then said that he had made his offer and was "absolutely inflexible." He said he was going to make sure the RICO case included me if I didn't agree to hi s dema nds. 22. When Hanna asked Swectapple how he could go from public records requ ests to a RICO claim, Sweetapple said there was a cons piracy between Martin O'Boyle and me. 23. When asked how Mayor Morgan had the power to ensure that I be excluded from the RI CO case, Sweetapple s aid he was planning o n talking to each of the Town Commissioners one-on-one to explain the offer and to ge t eac h one or them to sig n off. The way the statement was made l und erstood that Sweetapple was going to privately solicit and pre- arrange a public vote . 24. Finally, Sweetapple said the RICO complaint was tinali zcd and that "the train was about to leav e the station;" so if I did not want to be included. I would need to get thi s resolved as soon as poss ibl e. 25. I understood from Sweetapple's torceful presenta tion a nd the cont ex t and tenor or the way Sweetapple made hi s statements at th at moment that Swcetappl e made them with the P age 5 of7 RAS00000114 intention of purposefu ll y harming Manin o ·Roylc·s reputation . It was apparent to me that Sweetapple thought a ny assoc iatio n uf me v.-ith o ·noyle woulu be ham1fu l to me. As a re su lt of Sweetappl e·s pre sen tati o n J felt wary of Manin o·uoyle. s uspicious of the o·Boyk law firm ~mJ ex tremely apprehen s ive abo ut th e RICO threat. 26. Rather than having a st:ttlcmcnt di sc ussion. I lel t Swl!etapplc·s aggressin· posturing a nd vehement statements [~) be a tlm:at again s t me. Swectapph:·s refen:ncc:-; to indictment and the s tat e attorney in thL' mee tin g. made me un s ure whether Sweetapplc·s RI CO c la im wo uld come before an indictment or afw r. I remember fcding l'l11 otionally disturbed a tt c r lca,·ing th a t meeting abou t t he possibility of a <:riminal indi<:ltm:nt aga in st mt:. Execu ted this day of __ .)U ~1--· 20 I 6. 1520 Are1111e A u Solei/ Street Address Uu /(. 1re"m F/urid{J 33-1 83 C ity State lip State of I: lori da Co unt y of Palm Beach (? Sworn to (or affirmed ) and s ubsc ribed bdorc me thi s _ '1 d ay or -){_ ... ( t .~20 16. by Christopher F. O'Hare. U @/ ~rsonall y known to m <: or 0 ha v in g p resented ___ -·~--·---------______ :IS identification . P<:~g~.: 6 of7 RAS00000115 . I l 1 .• ,/' ~?uu _c_ J./klct.( V-L-~-- (Signatu re of No tar v Public. State o f Florida) ~ . ;>'~~~ftt, Tl~ L MARTIN • • ' MY COMMISSIOO f FF 129242 Co mmi ssion No. • * EXPIRES:.Niy10,2018 ·~ 't M "'<1-f§ £<ndr41htv But4g!t ll~ry Strti.:fl · -r, ~ H·1 L t tc~ 1 rc r r ~'~ (Print. type o r stamp name of No tary Pub I it:) Pagc7of7 RAS00000116 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 42 of 57 EXIBHIT ''F'' RAS00000117 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 43 of 57 MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, OCTOBER 10 , 2014 AT 9 :00A.M., IN THE COM MIS SION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM , FLORIDA . I. Call to Order . Mayor Morgan called the meeting to order at 9 :00 A .M. I I . Pledge of Allegiance . The Pledge of Allegiance was led by Mayor Morgan . III . Roll Call . Present and Participating : Also Present and Participating : IV . Minutes . Scott W. Morgan Robert W. Ganger (via phone) Joan K . Orthwein Thomas M. Stanley Donna S . White John Randolph William H. Thrasher (v i a phone ) Rita L. Taylor Garrett J . Ward Christopher O'Hare Tony Graziano Patricia Randolph Danny Brannon Richard Jones Mayor Vice Mayor Commissioner Commissioner Commissioner Tow n Attorney Town Manager Town Clerk Police Chief Tovm Resident Town Resident Town Resident Engineer Architect A . Regula r Meeting & Public Hearing 9-12-14 @ 4 :00 P .M. B . Public Hearing-Tentative Budget 9-12-14 @ 5 :01 P .M. C . Public Hearing-Final Budget 9-23-14 @ 5 :01 P .M. There were no corrections or changes and Commissioner Stanley moved the approval of all three meetings and the motion was seconded by Commissioner White with all voting AYE at roll call . V . Additions , withdrawals , deferrals, arrangement of agenda items . Mayor Morgan asked if there were any changes to the agenda being requested . Town Clerk Taylor asked to have Item X .A .2 . at a time certain of 9 :45A .M. and there were no objections . VI . Announcements. A . Regular Meetings and Public Hearings 1 . November 14 , 2014 @ 9 :00A .M. 2 . December 12 , 2014 @ 9 :00 A .M. 3 . January 9 , 2015 @ 9 :00A .M. 4 . February 13 , 2015@ 9:00A.M . 5 . March 13 , 2015 @ 9 :00A .M. 6 . April 10 , 2015 @ 9 :00 A .M. Mayor Morgan called attention to the next meeting date of November 14 , 2014 and asked if anyone had a conflict with this date and none were acknowledged . RAS00000118 Case 9:15 -cv-80182-KAM Doc ument 54-1 Entered on FLSD Docket 07/21/2016 Page 44 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 VII . Communication from the Public (5 min. maximum) The Mayor asked if anyone wanted to speak and Christopher O'Hare was recognized . Mr. O 'Hare stated there were discrepancies between what is written and what actually happened . He said he had questioned the 3% raise for Mr . Thrasher in the final budget which was previously an 8% raise for salary and benefits. He said the minutes reflect that that Commissioner Stanley had said that was the same in both budgets , but it was actually 8% to begin \vi th and \vas reduced by 5%. He said he had also made a comment regarding the town paying more money in legal fees to fight some of these small claims against the town than it would cost to resolve those claims . He claimed that the minutes stated the opposite . Mr . O'Hare believed that it appears money is being designated or parked in accounts or places where there is no intention of spending it. He believed this is just a way to "park" money and then shift it to legal fees next year . He noted that the amount allocated for legal fees is less than the town spent in the month of July . He then reminded that the town had an emergency meeting to discuss a handicap ordinance or reasonable accommodation which called for a 7 month approval process . He stated he spoke against it and the Mayor had stated that it was really about "sober houses". He noted that the town is now hiring an attorney in regard to the sober house ordinance that has already been adopted . He questioned if someone is suing the town because of a sober house . Patricia Randolph was recognized and stated that she is voicing the concern of Gulf Stream residents over the town 's financial health and it 's morale . Referring to the mayors June 14th letter , she remarked it was very informative and well received by the community , and she hoped h e would continue to send out similar reports . She quoted a portion of the letter as follows : "Over time , the Town built up a reserve of funds that could be used for capital improvements or for emergency spending , like storm damage or water line repairs . Current thinking is that a reasonable General Fund Reserve for a town of our size should be around $1 million to $1 .5 million , and that is a level that Gulf Stream has typically maintained . Recently , Gulf Stream 's General Fund Reserves have dropped to around $675 ,000 . Legal fees and costs have risen dramatically due to our defending over 20 lawsuits filed by two residents , Mr . O'Boyle and Mr . O'Hare . These lawsuits are primarily Public Records actions and relate to over 800 public records requests filed by these two residents or by other individuals and organizations with whom they appear to be connected . The records requests involve many thousands of documents and , in my opinion, have little purpose other than to harass and financially damage our Town . In addition to paying legal fees for litigation work, the Town has legal advice to help it respond to some other unusual situations, including matters relating to O'Boyle and O'Hare . To put legal fees in perspective, Gulf Stream typically budgets around $15,000 annually for legal services , in the first 6 months of this year we have already spent over $160 ,000." She asked that year to 2 RAS00000119 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 45 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 date numbers be put on the website and that the numbers be revised monthly for the residents to see , as it is their money . Ms . Randolph then emphasized the communities ' repulsion regarding the signs with crude , immature , bathroom language that appear in the sky and on the streets . She further stated that residents are sick and tired of the inappropriate behavior of a resident toward the town 's female employees . She then quoted from a letter obtained thru the public records request process that is addressed to Mr . O'Boyle from the Town Manager as follows : "I have received complaints that on several occasions , whether intentionally or otherwise , you have caused disruption of employees ' work activities and have engaged in conduct with female employees which they deem to be inappropriate causing them to be uncomfortable. Therefore , please be advised as follows : Please do not touch any of the female employees in any manner . This includes handshakes , hugs , arms around the s h oulders , kissing or any other similar uninvited activity ." Ms. Randolph stated there is no longer apat hy in Gulf Stream , people are fed up . She cited the recent election which experienced the largest turn out ever in Gulf Stream . She closed by stating the residents strongly support the efforts to fight these attacks on the town and recognize that this will be costly , but necessary and important for the town to stand strong . VIII . PUBLIC HEARING Mayor Morgan asked if there have be e n any ex-parte communications . Commissioner Stanley stated he has passed by the site several times . A. Applications for Development Approval . At the direction of the Mayor , the Town Clerk administered the oath to Richard Jones , the agent for the project , and Tony Graziano , Town Resident . 1 . An application submitted by Richard Jones as Agent for 3140 Polo LLC , owner of property located at 3140 Polo Drive , Gulf Stream , Florida 33483 , legally described as Lt 7 Gulf Stream Cove . Mr. Jones called attention to the rendering of the proposed structure on the screen and a colored landscape plan . He pointed out the structure is a classic Gulf Stream Bermuda style home of modest size. He then pointed to the o pen view down the canal and into the Intracoastal Wat erway . When showing the site plan he called attention to the size of the lot and noted that it is smaller in size than the average lot in the Core District and dictates a smaller house , approximately 3 ,600 square fe et , two story great room plan , two car garage with the second story being reduced in size . In looking at the elevations he pointed to the signature parapet detail that flanks the entry . Mayor Morgan asked if there have been any complaints or comments from the neighbors and the answer was , no . 3 RAS00000120 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 46 of 57 Tovm Commission Regular Meeting & Public Hearing 10-10-14 Mr. Graziano was recognized and sated that he had no issue with this particular project but that he did have a comment about what goes on in town during construction . He acknowledged that there is an ordinance that regulates days and hours that contractors can work, and noted that 40 years previous the community had been a "sn ow -bird" but now there are many more people who are here year around . He pointed out that during the summer season work is permitted on Saturday . Mr . Graziano further pointed out that for those who work all week it must be very disturbing to be awakened on Saturday morning by construction activities. The second point he rais ed was that there is no effective enforcement me c hanism for requiring contractors to start at 8 :00A .M. and stop at 5 :00 P .M. He stated these hours can be viola ted every day with the only remedy being to call the police and have them come and speak to the workers . He asked that some ordinance changes be made so residents not be awakened before 8 :00A .M. Mayor Morgan was in agreement that perhaps the time has come to re-asses the Saturday work regulations . He advised that one of his priorities is to establish some type of penalty cla use for violations such as have been mentioned and work is in progress to accomplish this. Commissioner Orthwein commented that the Core area is very small and the number of construction vehicles in a small space cause a considerable amount of destruction to the lawns . She asked if t hey will be submitting a plan to contro l this problem . Mr . Jones said he was certain that the developer will follow a plan to control the problem . May or Morgan stated he believed the developer had made mention of having the vehicles contained on the property , adding that the town has pr ovided a space in the back of the town hall property that is available for contractor parking . The Mayor questioned if the deed restriction that was recommended by the ARPB was at issue to which Mr . Jones replied that it is no longer an issue . Commissioner Stanley asked Mr . Jones to explain how drainage across the driveway would be taken care of . Mr. Jones explained that the run-off is directed to the southeast , into the swale at the front of the property . Commissioner Stanley questioned wh at is behind the parapet on the front of the structure to which Mr . Jones replied that there is a small portion of roof that covers a portion of the den . There were no further questions from the Commission or the public . a . Demolition Permit to remove existing structures . 4 RAS00000121 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 47 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 Commissioner Stanley moved to approve the Demolition permit and the motion \vas seconded by Commissioner Orth\vein and all voted AYE at roll call . b . Land Clearing Permit to clear property for new canst . Commissioner Stanley then moved to approve the Land Clearing Permit , Commissioner Orthwein seconded the motion and all voted AYE at roll call . c . Special Exception #1 to permit the reduction of the rear waterfront setback to 37 '2 u . A motion to approve the Special Exception #1 was made by Commissioner Stanley that was seconded by Commissioner Orthwein with all voting AYE at roll call . d . Special Exception #2 to permit 99 sq . ft . of covered , une n closed area that exceeds the maximum floor area ratio. Commissioner Stanley moved to approve Special Exception #2 to permit 99 square feet of covered , unenclosed area that exceeds the maximum floor area ratio , subject to a deed restriction limiting the enclosure of the 99 square feet of covered unenclosed area . Commissioner Orthwein seconded the motion and all voted AYE at the roll call . e . Level 3 Architectural/ Site Plan Review to permit construction of a 2 story single fami l y Gulf Stream Berm u da st y le d welli n g with attached 2 car garage , consisting of 4 ,540 square feet , and a swimming pool . Commissioner Stanley moved to approve the Level 3 Architectural/Site Plan to permit construction of a 2 story si n gle family Gulf Stream Bermuda style d welli ng with attached 2 car garage , cons is ting of 4,540 square feet , and a s wimming pool . Commissioner Orthwein seconded the motion and all voted AYE at roll call . Mayor Morgan announced that it is nearing t h e time for the time certai n item , 9 :45A .M., which is I tem X .A.2 . Inasmuch as it was not quite time , he announced that Item X.A.1 . would be considered at this time . X . Items for Co mmissi on Action . A. Items by Town Attorney 1 . Considerat i on of Hiring Special Counsel-Reasonable Accommodation Ordinance Attorney Randolph stated that he is recommending that the Town arrange for representation with an outside counsel that specializes in fair housing matters to assist in the future with issues that may be related to the recently adopted Reasonable Accommodation Ordinance . He reported that he had spoken to both Attorney Jamie A. Cole and Attorney Matthew H. Mandel, with the firm of Weiss , Serota , Helfman , Pastoriza , Cole and Boniske , regarding their possible representation on an as needed basis . Mr. Randolph pointed out that Mr . Mandel has handled more than 20 fair Housing zoning related matters for cities including , Boca Raton , Delray Beach , Port St . Lucie , Deerfield Beach , Pompano Beach and Pinecrest . 5 RAS00000122 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 48 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 He stated that this firm had offered their governmental rat e of $250 .00 per hour , as needed , if the town were to hire them . Attorney Randolph assured that there is no pending suit , nothing currently on the table and nothing in regard to it . Because these matters are in their area of expertise , he recommended that the town retain that firm in any matters that may come up in regard to that . Mayor Morgan pointed out that the ordinance has an application provision to be followed and he believed assistance would be needed when considering these applications . Commissioner White inquired if a retainer would be required to which Mr . Randolph replied that he didn 't believe so b ut a retainer letter would be executed and if a retainer is so noted in the letter , the matter would be brought back to the Commission for reconsideration . Commissioner Stanley moved to authorize to retain Weiss , Serota , Helfman , Pastoriza , Cole and Boniske as special counsel with regard to the items as stated by the Town Attorney subject to a fee of $250 .00 per hour and no advance fees due . The motion was seconded by Commissioner Orthwein and all voted AYE at roll call . 2 . Consideration of Filing RICO Action & Retaining Special Counsel to Represent the Town . Attorney Randolph welcomed Attorney Gerald F . Richman via conference line and then i ntroduced Attorney Joanne O'Connor from the Jo nes , Foster Office who is the one that has been primarily invo lved in regard to defending the Town in relation to the several public records suits that have been filed against the Town . He said that by way of background , before hearing from Mr. Richman in regard to this , he has asked Attorney O'Connor , with the permission of the Commission , to give some backgr ou nd in relation to this matter . Attorne y O'Connor advised s h e is t h e litigation partner with the firm and wanted to bring ever yone up to date on the status of the public records suits and the public records requests that have been made to the Town . She focused on the public records requests over the 13 months that have passed since the end of August 2013 as there is a good log on how many have been made, more than 1 ,500 , and that the overwhelming majority of those have been made by two town residents , Mr . Christop he r O'Hare and Mr. Martin O'Boyle and/or entities wi t h which t hey are affiliated . Attorney O'Connor said more than 400 have been made by Mr . O'Hare in his name individually and another 300 made by him using fictitious names and email addresses, including someone wh o has su ed the town related to those requests . Several hundred more have been made by Mr . O'Boyle and entities with which he 's affiliated as indicated by records thru the Florida Department of State . The records requests have barraged the to1vn 's staff , she said , adding that Mr . O'Hare on October 8 , 2013 made 89 requests in o ne day and another day in September 2013 on a Sunday he made 40 records requests over a 4 hour time period. Thirty Six public 6 RAS00000123 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 49 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 records law suits have been filed by Mr . O'Hare, Mr . O'Boyle and/or their entities with whom they are affiliated, out of these requests. She stated that three of those have been dismissed and 33 are pending , and that she had provided a listing of all suits that have been filed . With regard to the three that have been dismissed , two were voluntarily dismissed by Mr. O'Hare and one was voluntarily dismissed by an entity called the Citizens Awareness Foundation which Mr. O'Boyle has testified is an entity funded by him. Attorney O'Connor stated that of those law suits , 20 were brought by Mr . O'Hare , seven of which relate to those public records requests that were made on that Sunday , September 29th , one was brought by Mr . O'Boyle and Mr . O'Hare that relates to public records requests and purported sunshine law violations , about one dozen law suits filed by Mr . O'Boyle or entities with which he is affiliated , and i n fact in a recent la w suit he filed against Mayor Morgan , Attorney Sweetapple and the Town she said he referred to being engaged in 12 public records law suits against the Tow n. Addressing the financial aspect of these matters , Attorney O'Connor began by explaining that they track all of the general advice and counsel that is provided to the Town and then specific matters for each individual law suit . She said that since January 2014 the Town has spent , for the specific law su i ts , approximately $220 ,000 .00 or an average of $24 ,000 .00 per month and there are related costs such that the total spent with Jones , Foster is $370 ,000 .000 . Atto r ney O'Connor explained that figure included the cost for the law suits and time spent working with town staff helping to n avigate the public records act as many requests are very broad . Ms . O'Connor advised that there are eight cases that are not public records related that have been filed by Mr . O'Hare and Mr . O'Boyle , one of which has been dismissed and the insurance company is handling all but one of those . She said there are two recent cases , one is a s l ander case that has been filed by Mr . O'Boyle against the Mayor , Mr . Sweetapple and the Town . The other is a case Mr . O'Boyle has filed against the Town , Mr. Thrasher and Chief Ward relating to an incident that occurred a week or two previously when he carne in to make a public records request . Mayor Morgan noted that public record law suits are not covered by the Town 's liability insurance and the Town must pay counsel from the Town 's Reserves . Attorney Randolph called attention to the curriculum vitae of Gerald Richman that was included with the agenda and advised he is on the phone if the Commission 1vould like to hear from him in regard to the action that is proposed . Mayor Morgan asked Attorney Richman to introduce himself and to give his opinions regarding the Town's advancing this action . 7 RAS00000124 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 50 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 Mr . Richman stated that he would not go into detail but that he is a past president of the florida Bar and he is a very active trial lawyer that has been involved in RICO Cases . He believed the best way to counteract what the town is going thru is to file a RICO action in federal Court . The purpose of the action would be to seek an injunctive relief and damages against the enterprise they have now which would include the law firm , individuals and the Citizens Awareness foundation where they are involved in bringing this series of actions is believed to have no merit . He explained the scope of the litigation would be to include all of the action that have taken place over in excess of a year to a year and a half . He said he has spoken at length with Attorneys O'Connor and Sweetapple and had become involved because he had a client who is a contractor that contracts with the South Florida Water Management District and had been drawn into a public records request where t h ey simply made a request for an insurance certificate and did it in a way where the company would not have been aware or had personnel available to go ahead and even answer the request . Attorney Richman said he is well aware of their tactics and is prepared to go ahead and aggressively pursue them . Mayor Morgan asked what type of damages can be obtained thru filing a RICO action . He answered that , if successful , it provides for attorneys fees and triple damages that you would not be able to recover . In this case the damages to be sought would be damages related to the cost and expense of defending all of these spurious actions supporting a racketeering enterprise . In addition there is a possibility the action could include other municipalities joining in as well and possibly supporting the expense of the litigation , he said . Mayor Morgan asked if Gulf Stream would then be supporting a class action suite which Mr . Richman confirmed . Mr . Richman advised that only one plaintiff is needed to head this type of action . Mayor Morgan then asked what Mr . Richman 's fee schedule would be to handle this action . Mr . Richman advised that they have proposed a partial contingency agreement . He said the customary rates for his law firm range from $250 to $750 per hour and they would be willing to go forward on either a two-thirds of their hourly rate with a 25% contingency or 50% of their hourly rate with a 35% contingency . He emphasized his firm does not take cases on a contingent basis unless they believed the case has merit and a reasonable chance of being successful or what could be a substantial amount of damages to be recovered. Commissioner Stanley inquired if there \·JOuld be costs involved over and above what has been mentioned and Mr . Richman advised there would be the usual expenses incurred such as witness and filing fees, etc . that would be billed on a monthly basis. 8 RAS00000125 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 51 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 Commissioner Orthwein asked if there is any way to estimate how much overall this would cost and he replied that on the reduced hourly rate an estimate would be $20 ,000 to $25 ,000 the first few months but it 's hard to say beyond that as you would not know what the other side would be doi n g . On a question from Mayor Morgan , Mr . Richman confirmed that the prevailing party would get attorney fees in addition to approvable triple damages . Mayor Morgan asked the Town Clerk to read the note that had been received earlier this morning from Mr . O'Boyle . Mrs . Taylor read the note in its entiret y and which was made a part of the official record and is attached hereto. Commissioner White asked Mr. Richman if he could give an estimate of how long this case could stretch out to which Mr . Richman replied that this is a very difficult question . He said very few law suits filed in civil court ultimately end up in trial , most are settled along the line . He added that cases in federal Court such as this usual l y move quickly , faster than state courts . He said the unknown is which of the several federal judges gets the case and how fast they move their docket . Mayor Morgan believed the town has suffered enough with expending funds , times , resources , morale and the difficulties of retaining and hiring employees as a result of the scandalously malicious law suits and public records requests filed by Mr . O'Hare and Mr . O'Boyle and their related entities . He added it is time for the madness to stop . He then asked if there is a motion on the recommendation by counsel . Attorne y Randolph commented that if in the event it was decided to move forward you would want to specify which of the two options you choose . Mayor Morgan stated his preference would be to reduce the hourly rate as much as possible because of the unseen nature of those costs and would therefore recommend the 50% hourly rate with the higher contingency of 35%. Commissioner Orthwein stated she agreed that the 50% is the more prudent 1:1ay to go . Commissioner Stanley pointed out after lowering the upfront costs by the hourly rate not o nly is the objective to get damages and recovery but also to cease expenditures by current actions . The Mayor observed that the town can either take the approach of defending the individual cases as they come in and bleed to death or we can take steps necessary to stop those cases by advancing this case 9 RAS00000126 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 52 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 which shows from the evidence to date a conspiracy of sorts to advance actions that essentially do n ot hing o ther than to shake down municipa l agencies and related contractors f o r funds and with all the talk about public access , helping the common man is nonsense and has all been about mon e y. He believed by putting a stop t o it by this RICO action we then put a sto p to the individual law suits on the public re cords requests. Commissioner Orthwein agreed and p o inted o ut that the Town tried settling with them once and it 's impo rtant that we pr otect ourselves . Mr . O 'Hare was re cog nized and stated he unders tood the purpose of t h e RICO is to get rid of the public records request and stated he had a question about t h e RICO . He re cognized Mr. Richman as a great attorney and well respected and indicated that he is going to be indicted in t he RICO acti o n. He said that 3 months ago Mr . Sweetapp le said to his attorney that if he dismissed all o f his charges Mr. O 'Hare would n ot be included in the RICO action. He expressed his dislike for law suits , c iting h o w expensive t h ey are and stated t ha t because h e is innocent this will g o to a jury trial . He believed the cost will then go to bills of $100 ,000 or $200 ,000 a month till the trial takes pla ce , and th e n the r e would probably be a settlement pri o r to th e start o f the trial . He said this could costs millions of dollars and it is n ot the Commissions mo n e y , it 's the tax payer 's money . He also said these cases could be r eso lved by admi tting gui l t and paying attorney's fees . He n oted that Joel Chandler 's case was settled for $1 ,500 .00 and yet the Town pay s $20 ,000 saying the T o wn is not gu il ty and is not going to cooperate . He encouraged the To wn to reconsider . Mr . Tony Graziano , a town r es ident , was r ecog nized and stated he didn't u sual ly agree with Mr . O 'Har e but that h e had said something to whi ch he did agree . Mr. Grazino stated that "i t is our money and we would like to see y o u s p e nd it fighting these gentlemen". Commiss i one r Stan ley moved to retain special co uns el , Richman Greer, P .A ., specifically Gerald F . Richman , b ased on a fee structure of 50% r e duction of t h e standard h ourly rate with a 35% cont in gency fee on any r ecovery . Commissioner Orthwein seconded t h e motion a n d all voted AYE at roll call . IX . Reports . A . Utility Undergrounding-Danny Br a nnon {Engineer) Mr. Brannon advised that the electrica l p ortion of the 1st phase of the Undergrounding has been compl eted and all properties in that area have been connected to the new service . He further advised the contractor wi ll n ow be go in g back and making any repairs t hat are needed on the paving etc . and the as -built drawings are being prepared . Florida Power and Light has advised Mr . Brannon that their new information for the Phase 2 should be available at the end of the month . 10 RAS00000127 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Doc ket 07/21/2016 Page 53 of 57 Town Commission Regular Meeting & Public Hearing 10-10-14 B . Town Manager There were no questions and the report was a ccepted as circulated . C . Architectural Review & Planning Board 1. Meeting Dates a. October 23 , 2014 @ 8 :30 A .M. b . Novemb e r 20 , 2014 @ 8 :30 A .M. c . December 18 , 2014 @ 8 :30 A .M. d. January 22 , 2015 @ 8 :30 A .M. e . february 26 , 2015 @ 8 :30 A.M . D. Finance Director 1 . Financial Report for September 2014 2. Wat er Usage Report as of September 30 , 20 14 There were no questions for the Finance Dir ector and the two reports were accepted as presented . E . Police Chief 1 . Activity f or September 2014 The report was accepted as submitted . X . Items for Commission Action . A . Items by Town Attorney 1 . Consideration of Hiring Special Cou n sel-Reasonable Accommodation Ordinance 2 . Conside ra tion of Filing RI CO Action & Retaining Special Counsel to Represent t h e T o wn . Items X .A .1 .& 2 . were h eard earlier in the meeti n g . B .Items By May or & Commissioners T h ere were no items by t h e Mayor or the Commi ssioners . XI . Adjournment . Mayor Morgan adjourned t h e meeting at approximately 10 :20 A .M. R~ t;~k__ Rita L . Tayl or Tmm Clerk 11 RAS00000128 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 54 of 57 Good Morning: I h a nd this writing to you at t h e behest ofMartin O'Boyle who is out of town. Mr. O'Boyle wis hes to adru:ess th e age nda i tem titled "Consideration of Filing RICO Action and Retaining Special Co unsel to Re prese n t the Town". For those of you who are n ot fa miliar with RICO Actions, the costs for such Actions h a ve bee n known to run into the millio ns of dollars. Mr. O'Boyle ass um es that he a long with his associates i s the r ecipie nts of t his proposed RICO Act ion. In co nnection with the proposed RICO Action, Mr. O'Boyle wishes to provide t he Co mmission with a wa rning that any such launc h will be m et with a n unfriendly r espon se . Mr. O'Boy le r e mi nds the Commission that t he Mayor has bee n invi t ing a fight for som e time now. Mr. O'Boy le fu rther r em inds the Commissioners t hat should they d ec id e to embark upon a nd s upport t he Mayor's Grand B a ttle; the lik e ly r esul t will be th e d e mise of G ulf Stream. Mr. O'Boyle urges Gulf Strea m to fil e theu· p l ann ed RICO Action as soon as possible, provided that t h ey believe i t i s the pr ope r thing to do , and r eme mbering their fidu ciary respon s ibility .. In closing Mr. O'Boyle wants a ll to know that h e is waiting for t h e Comm issioners to take action; and he wants a ll to be prep a red for the strike which h e will inflict, which m ay include, inte1· ali a, a RICO Action against the Town and\or all of is Commissioners a nd ManA.ger .. RAS00000129 case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 55 of 57 Gerald F . Richm an. Richman Greer. P.A. 250 Australi an A vc., South , Suit e I 50-l , We st Palm Benc h, FL 33-lO I Tel. 561-803-3500 fax 561-820-1608 Email: !!richman@richmamrreer.com Professional Experience Ge ra ld f. Richman , Presi dent of Richman Greer, P.A., is board certified by The Florida Bar as both a ci\·il trial lawyer and bu siness litig ation lawyer con c entrating in trial and appellate pra ctice, and complex commercial lit igat ion with emphasis on antitrust, securit ies, contract, construction, federal agency, corpora te , banking , civil RICO, professional liabilit y, consumer, employment , c ivil right s, probate litigation and cla ss acti on is sues, repres enting both plaintiffs and d e fendants . In 2000 as lead coun sel he conducted the tri al of one of the three p resident ial election vote ca ses . Education l-Ie eamed a degree in Building Construction , with honors , at the Uni\'ersi ty of' Florida, his Juri s Doctor at the University of florida College of Law , and studied at Georgetown Univers ity's Graduate Law School. Professional Act ivities I le is a Fellow of the American College of Trinl Lawyers, served on the Boa rd of Govern ors of' the In ternational Society of BarTi sters, is a Charter Mem be r of both the Miami Chapter of the American Board of Tri a l Ad\·ocates ("ABOT A'') and the National Association of Consumer Advocates, has served as President of th e ABOTA chapter of Palm Beach , is a National ABOTA Board Member and is Co-C ha ir of the Interna ti onal Iss ues Committee where he has organized and pnrticipated in jury tri a l demon stration s in Lat\'ia (2006), Portu gal (2008), Korea nnd Jap nn (2010) and Berlin (2014). lie received th e ABOTA National Ma sters In Trial Award in 201 I. In 19 84, he wa s elected as President of The Florida Bar after having sen·ed si nce 1980 as a member of the Board of Go\'emors, and having chaired the Bar's Profcssionnl Et hi cs Commi tte e. lie \\'a s a member of the Hou se of Dclcgntc s of the Americnn Bar Associatio n for several tenns , and has sc r.·ed a s President of the Dade County Bar Association . By appointment of the Govemor, he wa s a member and sen·cd a s Chair of the Fourth District Court of Appeal Judicial Nominating Commission (Florida). Honors nnd Distinctions While at the Uni\'ersity of Florida, he wa s Executive Editor of The Law Rc,·ie\\'. Cha ncellor of' the ll onor Court and \\'a s se lected as th e be st speaker in the stnte and regional Moot Court compet it ions. I lc a lso co-au thored the first place brief in th e National t-.toot Court competition . While in the Defen se Appellate Di,·ision of the Am1y Judge Advocate General 's Corp in Wa shington. D.C., he wa s awarded the Preside ntial Sen·icc Badge for Honorable Scr.·icc nt the White !louse . An i\ \' rated l<l\\·yer by Martindale llubbcll . he has been sele cted since 1990 for the Bu sine ss Litigation se ction of The Be.1·1 LaH')'e rs in America, wa s se lec ted as the Bes1 LaHJ 'ers 2011 ll'es 1 Palm Beach Bet-The-Company Litigat or of th e rear, is listed in Clwmhers USA Direc !VJ')' as a leader in his field , and is in lf7w '.1· Wh o In Am erica . I Ic ha s als o been repe atedly named as one of the to p 100 attorneys in the state and as a Florida Super LaH ')'er in the area of bu sine ss litigation. RAS00000130 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 56 of 57 EXIBHIT ''G'' RAS00000131 Case 9:15 -cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 57 of 57 O'Hare Speech before the Gulf Stream Commission Nov 14 , 2014 "I will not be silenced!" 3 years ago I criticized a police officer when I heard him call workers at my home BEANERS. A few weeks later this officer searched the inside of my home uninvited and without a warrant. He then took pictures of the inside of my home from over my rear fence. This officer came back later and again tried to enter my home uninvited and without a warrant but found the doors locked . He then spied into my private home by looking over the rear fence again . This same officer then fabricated a false police report and lied about what he did and why he did it. My complaints to the Town about this have produced no results; not even an apology. Instead Mr. Thrasher waged a campaign against me of retaliation and abuse by denying my permits , inciting my neighbors and fabricating false code violations. But I would not be silenced. I made numerous public record requests. I tried to call attention to the Town's abuse with a website and political art. But have gotten nowhere with the Town. I have complained to the courts and have been retaliated against yet again , this time by a propaganda campaign aimed at silencing me once more by accusing me of harassing the Town and wasting the Town's resources and money. But I will not be silenced. Then in a desperate attempt to force me to give up my complaints and be finally silenced , each commissioner has voted to accuse me of criminal racketeering and to use the courts as a weapon to retaliate against me and suppress my free speech. Each member of this commission has collaborated to concoct a fictitious legal complaint against me solely in retribution and retaliation for themselves having been brought before the courts. I have been warned by Mayor Morgan through his attorney that I must withdraw ALL my complaints or be drawn into a long and expensive RICO lawsuit. That is extortion and I will not be silenced . This RICO accusation is untrue but it is a ringing bell that cannot be unrung. It is a callous and malicious attempt to destroy my character and it will not go unpunished. The Town has chosen to fight a long and costly battle. I have made numerous attempts to resolve this and been rebuffed. I am speaking today to try to mitigate some of the propaganda damage inflicted on my by the commission. But I am just a citizen fighting a juggernaut of power and money . But I will not be silenced. RAS00000132 S tatutes & Constitut ion :View Statutes : Online Sunshine http :/ /www.leg.state. fl . us/s tatute s/i nd ex.c fin? App _ mode =Di sp lay _S tat. .. I of 14 Select Year: 20 15 Go The 2015 Florida Statutes Title XLVI Chapter 895 View Entire Chapter CRIMES OFFENSES CONCERNING RACKETEERING AND ILLEGAL DEBTS CHAPTER 895 OFFENSES CONCERNING RACKETEERING AND ILLEGAL DEBTS 895.01 Short title. 895.02 Definitions. 895.03 Prohibited activities and defense. 895.04 Criminal penalties and alternative fin e. 895.05 Civil remedies. 895.06 Ci v il inves tigative subpoenas; public records exemption. 895.07 RICO lien notice. 895.08 Term of RICO lien notice. 895.09 Disposition of funds obtained through forfeiture proceedings. 895.01 Short title.-Sections 895.01-895.06 sha ll be known as the "Florida RICO (Racketeer Influenced and Corrupt Organization) Act." History.-s. 1, ch. 77 -334; s . 2 , ch. 79 -218. Note .-Former s. 943.46. 895.02 Definitions.-As use d in ss. 895 .01 -895 .08, the term: (1) "Racketee ring ac tiv ity" m ea ns to commit, to attempt to co mmit, t o conspire to commit, or to solicit, coe rce, or intimidate another person to co mmit: (a) Any crime that i s chargeable by petition, indictment, or information und er the follow ing provisions of the Florida Statutes: 1. Secti on 210.18, relating to evasion of pa yme nt of cigarette taxes . 2. Section 316.1935, relating to fleei ng or attempting to elude a law enforcement officer and aggravated fleeing or eluding. 3. Se ct ion 403.727(3)(b), r ela ting t o env i ronme ntal contro l. 4. Section 409.920 or s. 409 .9201, relating to Medicaid fraud. 5. Section 414 .39, relating to public assi stance fraud. 6. Section 440.105 or s. 440.106 , r elating to workers ' compe nsation. 7. Sec tion 44 3.071 (4), r elating to c reation of a fictitious employer scheme to commit ree mploymen t assistan ce fraud. 8. Section 465.0161, relating t o distribution of medicinal drugs without a permit as an Internet pharmacy. 9. Sec tion 499.0051 , r elati ng t o crim es invo lving cont ra ba nd and ad ulterated drugs. 10. Part IV of chapter 501 , relating to tel emarketing. 5/24/201 6 2:53PM RAS00000133 Statutes & Cons titution :View Statutes: Online S uns hine http:/ /www.leg.s tate. fl . us/statutes/i nd ex.cfin? App _ mode=Di sp lay _Stat. .. 2 of 14 11. Chapter 517, relating to sale of securities and in v estor protection. 12. Section 550 .235 or s. 550.3551 , relating to dogracing and horsera cing. 13. Chapter 550, relating to jai alai frontons. 14. Section 551.109 , relating to slot machine gaming. 15. Chapter 552, relating to the manufacture, distribution, and use of explosives. 16. Chapter 560, relating to money transmitters, if the violation is punishab le as a felony. 17. Chapter 562, relating to be v erage la w enforcement. 18 . Section 624.401, relating to transacting insuran ce without a certificate of authority, s. 624.437(4) (c)1., relating to operating an unauthorized multi ple -emp loyer welfare arrangement , or s. 626.902(1)(b), relating to representing or aiding an unauthorized insu rer. 19. Section 655.50 , relating to reports of currency transactions, when such violation is punishable as a felony. 20. Chapter 687, relating to interest and usurious practi ces. 21. Section 721.08, s. 721.09, or s. 721.13 , relating to real estate timeshare plans. 22. Section 775.13(5)(b), relating to registration of persons found t o have committed any offense for the purpose of benefiting, promoting, or furthering the interests of a c ri mina l gang. 23. Section 777.03, relating to commission of crimes by accesso ries after the fact. 24. Chapter 782, relating to homicide. 25 . Chapter 784 , relating to assault and battery. 26. Chapter 787, relating to kidnapping or human trafficking . 27 . Chapter 790, relating to weapons and firearms. 28. Chapter 794, relating to sexual battery, but only if such crime was committed with the intent to benefit, promote, or further the interests of a crim inal gang, or for the purpose of i nc reasing a crimi nal gang member's own standing or position within a criminal gang. 29. Formers. 796.03, forme r s. 796.035 , s. 796.04, s. 796.05, or s. 796.07 , r elating to prosti tutio n. 30. Chapter 806, relating to arson and criminal mischief. 31. Chapter 810, relating to burglary and trespass . 32. Chapter 812, relating to theft, robbery, and related crimes. 33 . Chapter 815, r elating to com puter-related crimes. 34. Chapter 817, relating to fraudulent practices, false pretenses, f r aud generally, and credit card crimes. 35. Chapter 825, relating to abuse, neglect, or exploitation of an el derl y person or disabled adult. 36. Section 827 .071, relating to commercial sexual exploitation of children . 37. Section 828.122, relating to fighting or baiting animals. 38. Chapter 831, relating to forgery and counterfeiting. 39. Chapter 832, relating to issuance of worthless checks and drafts. 40. Section 836.05 , relating to extortion. 41 . Chapter 837, relating to perjury. 42. Chapter 838 , relating to bribery and misuse of public office. 43. Chapter 843, relating to obstruction of justice. 44. Section 847 .011 , s. 847.012 , s. 847 .013 , s. 847.06, or s. 847.07, relating to obscene literature and profanity. 45. Chapter 849, relating to gambling, lottery, gambling or gaming dev ices, slot mach i nes, o r any of the pro v i si ons wi thin that chapter. 46. Chapter 874, relating to criminal gangs. 5/24/20 16 2:53 PM RAS00000134 S,tatutes &, Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/ statutes/index. cfm? App _ mode~Display _Stat. .. 3 of14 47. Chapter 893, relating to drug abuse prevention and control. 48. Chapter 896, relating to offenses related to financial transactions. 49. Sections 914.22 and 914.23, relating to tampering with or harassing a witness, victim, or informant, and retaliation against a witness, victim, or informant. 50. Sections 918.12 and 918.13, relating to tampering with jurors and evidence. (b) Any conduct defined as "racketeering activity" under 18 U.S.C. s. 1961(1). (2) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part because the debt was incurred or contracted: (a) In violation of any one of the following provisions of law: 1. Section 550.235 or s. 550.3551, relating to dogracing and horseracing. 2. Chapter 550, relating to jai alai frontons. 3. Section 551.109, relating to slot machine gaming. 4. Chapter 687, relating to interest and usury. 5. Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s. 849.25, relating to gambling. (b) In gambling activity in violation of federal law or in the business of lending money at a rate usurious under state or federal law. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities. A criminal gang, as defined ins. 874.03, constitutes an enterprise. (4) "Pattern of racketeering activity" means engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct. (5) "Documentary material" means any book, paper, document, writing, drawing, graph, chart, photograph, phonorecord, magnetic tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into usable form, or other tangible item. (6) "RICO lien notice" means the notice described ins. 895.05(12) or ins. 895.07. (7) "Investigative agency" means the Department of Legal Affairs, the Office of Statewide Prosecution, or the office of a state attorney. (8) "Beneficial interest" means any of the following: (a) The interest of a person as a beneficiary under a trust established pursuant to s. 689.07 or s. 689.071 in which the trustee for the trust holds legal or record title to real property; (b) The interest of a person as a beneficiary under any other trust arrangement pursuant to which a trustee holds legal or record title to real property for the benefit of such person; or (c) The interest of a person under any other form of express fiduciary arrangement pursuant to which any other person holds legal or record title to real property for the benefit of such person. The term "beneficial interest" does not include the interest of a stockholder in a corporation or the interest of a partner in either a general partnership or a limited partnership. A beneficial interest shall be deemed to be located where the real property owned by the trustee is located. 5/24/2016 2:53PM RAS00000135 Statutes & Constitution :View Statutes: Online Sunshine http:/ /www.leg.state.fl. us/statutes/index. cfm? App _mode~Disp lay_ Stat. .. 4of14 (9) "Real property" means any real property or any interest in such real property, including, but not limited to, any lease of or mortgage upon such real property. (1 0) "Trustee" means any of the following: (a) Any person acting as trustee pursuant to a trust established under s. 689.07 or s. 689.071 in which the trustee holds legal or record title to real property. (b) Any person who holds legal or record title to real property in which any other person has a beneficial interest. (c) Any successor trustee or trustees to any or all of the foregoing persons. However, the term "trustee" does not include any person appointed or acting as a personal representative as defined ins. 731.201 or appointed or acting as a trustee of any testamentary trust or as a trustee of any indenture of trust under which any bonds have been or are to be issued. (11) "Criminal proceeding" means any criminal proceeding commenced by an investigative agency under s. 895.03 or any other provision of the Florida RICO Act. (12) "Civil proceeding" means any civil proceeding commenced by an investigative agency under s. 895.05 or any other provision of the Florida RICO Act. History.-s. 2, ch. 77-334; s. 3, ch. 79-218; 5, 300, ch. 79-400; s. 1, ch. 81-141; s.1, ch. 83-65; s. 25, ch. 83-264; s. 2, ch. 84-9; s. 5, ch. 86-277; s. 1, ch. 87-139; s. 5, ch. 89-143; s. 2, ch. 90-246; s. 3, ch. 90-301; s. 13, ch. 91-33; s. 72, ch. 91-282; s. 4, ch. 92-125; s. 4, ch. 92-281; s. 65, ch. 92-348; s. 2, ch. 93-227; s. 106, ch. 93-415; s. 78, ch. 94-209; s. 91, ch. 95-211; 5. 9, ch. 95-340; s. 107, ch. 96-175; s. 7, ch. 96-252; s. 5, ch. 96-260; s. 4, ch. 96-280; s. 7, ch. 96-387; s. 43, ch. 96-388; s. 2, ch. 97-78; s. 2, ch. 99-335; s. 17, ch. 2000-360; s. 31, ch. 2003-155; s. 161, ch. 2004-5; s.13, ch. 2004-344; s.11, ch. 2004-387; s. 5, ch. 2004-391; s. 143, ch. 2005-2; s. 8, ch. 2005-209; s. 13, ch. 2005-228; s. 3, ch. 2005-362; s. 4, ch. 2006-168; s. 17, ch. 2007-74; s. 42, ch. 2008-207; s. 17, ch. 2008-238; s. 21, ch. 2009-115; s. 25, ch. 2009-170; ss. 4, 5, ch. 2010-29; 5. 81, ch. 2012-30; s. 17, ch. 2012-97; s. 6, ch. 2013-2; s. 4, ch. 2013-245; s. 23, ch. 2014-160. 895.03 Prohibited activities and defense.- (1) It is unlawful for any person who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise. (2) It is unlawful for any person, through a pattern of racketeering activity or through the collection of an unlawful debt, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property. (3) It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt. (4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (1 ), subsection (2), or subsection (3). History.-s. 3, ch. 77-334. Note.-Former s. 943.462. 895.04 Criminal penalties and alternative fine.- (1) Any person convicted of engaging in activity in violation of the provisions of s. 895.03 is guilty of a felony of the first degree and shall be punished as provided ins. 775.082, s. 775.083, or s. 775.084. (2) In lieu of a fine otherwise authorized by law, any person convicted of engaging in conduct in violation of the provisions of s. 895.03, through which the person derived pecuniary value, or by which he or she caused personal injury or property damage or other loss, may be sentenced to pay a fine that does 5/24!2016 2:53PM RAS00000136 ~tatutes ~Constitution :View Statutes: Online Sunshine http:/ /www.leg.state .fl. us/ statutes/index.cfin? App _mode~Display _Stat. .. 5 ofl4 not exceed 3 times the gross value gained or 3 times the gross loss caused, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. (3) The court shall hold a hearing to determine the amount of the fine authorized by subsection (2). (4) For the purposes of subsection (2), "pecuniary value" means: (a) Anything of value in the form of money, a negotiable instrument, or a commercial interest or anything else the primary significance of which is economic advantage; or (b) Any other property or service that has a value in excess of $100. History.-s. 4, ch. 77-334; s. 1446, ch. 97·102. Note.-Former s. 943.463. 895.05 Civil remedies.- (1) Any circuit court may, after making due provision for the rights of innocent persons, enjoin violations of the provisions of s. 895.03 by issuing appropriate orders and judgments, including, but not limited to: (a) Ordering any defendant to divest himself or herself of any interest in any enterprise, including real property. (b) Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which the defendant was engaged in violation of the provisions of s. 895.03. (c) Ordering the dissolution or reorganization of any enterprise. (d) Ordering the suspension or revocation of a license, permit, or prior approval granted to any enterprise by any agency of the state. (e) Ordering the forfeiture of the charter of a corporation organized under the laws of the state, or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of s. 895.03 and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked. (2)(a) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05 is subject to civil forfeiture to the state. (b) Upon the entry of a final judgment of forfeiture in favor of the state, the title of the state to the forfeited property shall relate back: 1. In the case of real property or a beneficial interest, to the date of filing of the RICO lien notice in the official records of the county where the real property or beneficial trust is located; if no RICO lien notice is filed, then to the date of the filing of any notice of lis pendens under s. 895.07(5)(a) in the official records of the county where the real property or beneficial interest is located; and if no RICO lien notice or notice of lis pendens is filed, then to the date of recording of the final judgment of forfeiture in the official records of the county where the real property or beneficial interest is located. 2. In the case of personal property, to the date the personal property was seized by the investigating agency. If property subject to forfeiture is conveyed, alienated, disposed of, or otherwise rendered unavailable for forfeiture after the filing of a RICO lien notice or after the filing of a civil proceeding or criminal proceeding, whichever is earlier, the investigative agency may, on behalf of the state, institute an action in any circuit court against the person named in the RICO lien notice or the defendant in the civil 5/24/2016 2:53PM RAS00000137 S(atutes &. Constitution :View Statutes : Online Sunshine http:/ /www.l eg.state. fl. us/ statutes/index.cfin? App _ mode~Display _Stat. .. 6 of 14 proceeding or criminal proceeding, and the court shall enter final judgment against the person named in the RICO lien notice or the defendant in the civil proceeding or criminal proceeding in an amount equal to the fair market value of the property, together with investigative costs and attorney's fees incurred by the investigative agency in the action. If a civil proceeding is pending, such action shall be filed only in the court where the civil proceeding is pending. (c) The state shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. The proceeds realized from such forfeiture and disposition shall be promptly distributed in accordance with the provisions of s. 895.09. (3) Property subject to forfeiture under this section may be seized by a law enforcement officer upon court process. Seizure without process may be made if: (a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant. (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section. (4) In the event of a seizure under subsection (3), a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the law enforcement officer making the seizure, subject only to the order of the court. When property is seized under this section, pending forfeiture and final disposition, the law enforcement officer may: (a) Place the property under seal. (b) Remove the property to a place designated by court. (c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location. (5) The Department of Legal Affairs, any state attorney, or any state agency having jurisdiction over conduct in violation of a provision of this act may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper. (6) Any aggrieved person may institute a proceeding under subsection (1 ). In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order and a preliminary injunction may be issued in any such action before a final determination on the merits. (7) The state, including any of its agencies, instrumentalities, subdiVisions, or municipalities, if it proves by clear and convincing evidence that it has been injured by reason of any violation of the provisions of s. 895.03, shall have a cause of action for threefold the actual damages sustained and shall also recover attorneys' fees in the trial and appellate courts and costs of investigation and litigation, reasonably incurred. In no event shall punitive damages be awarded. The defendant shall be entitled to recover reasonable attorneys' fees and court costs upon a finding that the claimant raised a claim which was without substantial factual or legal support. (a) Either party may demand a trial by jury in any civil action brought pursuant to this subsection. 5/2412016 2:53 PM RAS00000138 Statutes & Constitution :View Statutes: Online Sunshine http: I /www.leg. state.fl. us/ statutes/index.cfin? App _ mode~Disp I ay _Stat. .. 7 of 14 (b) Any prevailing plaintiff under this subsection or s. 772.104 shall have a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds. (8) A final judgment or decree rendered in favor of the state in any criminal proceeding under this act or any other criminal proceeding under state law shall estop the defendant in any subsequent civil action or proceeding under this act or under s. 772.104 as to all matters as to which such judgment or decree would be an estoppel as between the parties. (9) The Department of Legal Affairs may, upon timely application, intervene in any civil action or proceeding brought under subsection (6) or subsection (7) if it certifies that, in its opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Department of Legal Affairs had instituted the action or proceeding. (10) Notwithstanding any other provision of law, a criminal or civil action or proceeding under this act may be commenced at any time within 5 years after the conduct in violation of a provision of this act terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent, or restrain any violation of the provisions of this act, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (6) or subsection (7) which is based in whole or in part upon any matter complained of in any such prosecution, action, or proceeding shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination. (11) The application of one civil remedy under any provision of this act does not preclude the application of any other remedy, civil or criminal, under this act or any other provision of law. Civil remedies under this act are supplemental, and not mutually exclusive. (12)(a) In addition to the authority to file a RICO lien notice set forth ins. 895.07(1), the Department of Legal Affairs, the Office of Statewide Prosecution, or the office of a state attorney may apply ex parte to a criminal division of a circuit court and, upon petition supported by sworn affidavit, obtain an order authorizing the filing of a RICO lien notice against real property upon a showing of probable cause to believe that the property was used in the course of, intended for use in the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05. If the lien notice authorization is granted, the department shall, after filing the lien notice, forthwith provide notice to the owner of the property by one of the following methods: 1. By serving the notice in the manner provided by law for the service of process. 2. By mailing the notice, postage prepaid, by registered or certified mail to the person to be served at his or her last known address and evidence of the delivery. 3. If neither of the foregoing can be accomplished, by posting the notice on the premises. (b) The owner of the property may move the court to discharge the lien, and such motion shall be set for hearing at the earliest possible time. (c) The court shall discharge the lien if it finds that there is no probable cause to believe that the property was used in the course of, intended for use in the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05 or if it finds that the owner of the property neither knew nor reasonably should have known that the property was used in the course of, intended for use in the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05. (d) No testimony presented by the owner of the property at the hearing is admissible against him or her in any criminal proceeding except in a criminal prosecution for perjury or false statement, nor shall such testimony constitute a waiver of the owner's constitutional right against self-incrimination. (e) A lien notice secured under the provisions of this subsection is valid for a period of 90 days from 5/24/2016 2:53PM RAS00000139 Statutes ljc Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/ statutes/index.cfin? App _ mode~Display _Stat. .. 8 ofl4 the date the court granted authorization, which period may be extended for an additional 90 days by the court for good cause shown, unless a civil proceeding is instituted under this section and a lien notice is filed under s. 895.07, in which event the term of the lien notice is governed by s. 895.08. (f) The filing of a lien notice, whether or not subsequently discharged or otherwise lifted, shall constitute notice to the owner and knowledge by the owner that the property was used in the course of, intended for use in the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01·895.05, such that lack of such notice and knowledge shall not be a defense in any subsequent civil or criminal proceeding under this chapter. History.-s. 5, ch. 77-334; s. 301, ch. 79-400; s. 2, ch. 81-141; s. 1, ch. 84-38; s. 5, ch. 84-249; s. 6, ch. 86-277; s. 3, ch. 87-139; s. 5, ch. 90-269; s. 76, ch. 95-211; s. 1447, ch. 97-102. Note.-Former s. 943.464. 895.06 Civil investigative subpoenas; public records exemption.- (1) As used in this section, the term "investigative agency" means the Department of Legal Affairs, the Office of Statewide Prosecution, or the office of a state attorney. (2) If, pursuant to the civil enforcement provisions of s. 895.05, an investigative agency has reason to believe that a person or other enterprise has engaged in, or is engaging in, activity in violation of this act, the investigative agency may administer oaths or affirmations, subpoena witnesses or material, and collect evidence. (3) The investigative agency may apply ex parte to the circuit court for the circuit in which a subpoenaed person or entity resides, is found, or transacts business for an order directing that the subpoenaed person or entity not disclose the existence of the subpoena to any other person or entity except the subpoenaed person's attorney for a period of 90 days, which time may be extended by the court for good cause shown by the investigative agency. The order shall be served with the subpoena, and the subpoena shall include a reference to the order and a notice to the recipient of the subpoena that disclosure of the existence of the subpoena to any other person or entity in violation of the order may subject the subpoenaed person or entity to punishment for contempt of court. Such an order may be granted by the court only upon a showing: (a) Of sufficient factual grounds to reasonably indicate a violation of ss. 895.01·895.06; (b) That the documents or testimony sought appear reasonably calculated to lead to the discovery of admissible evidence; and (c) Of facts which reasonably indicate that disclosure of the subpoena would hamper or impede the investigation or would result in a flight from prosecution. (4) If matter that the investigative agency seeks to obtain by the subpoena is located outside the state, the person or enterprise subpoenaed may make such matter available to the investigative agency or its representative for examination at the place where such matter is located. The investigative agency may designate representatives, including officials of the jurisdiction in which the matter is located, to inspect the matter on its behalf and may respond to similar requests from officials of other jurisdictions. (5) Upon failure of a person or enterprise, without lawful excuse, to obey a subpoena issued under this section or a subpoena issued in the course of a civil proceeding instituted pursuant to s. 895.05, and after reasonable notice to such person or enterprise, the investigative agency may apply to the circuit court in which such civil proceeding is pending or, if no civil proceeding is pending, to the circuit court for the judicial circuit in which such person or enterprise resides, is found, or transacts business for an order compelling compliance. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or material after asserting a privilege against self-incrimination to which the individual is entitled by law shall not have the testimony or material so provided, or evidence derived 5/24/2016 2:53 PM RAS00000140 Statutes & Constitution: View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/ statutes/index. cfin? App _mode~ Display_ Stat. .. 9 of 14 therefrom, received against him or her in any criminal investigation or proceeding. (6) A person who fails to obey a court order entered pursuant to this section may be punished for contempt of court. (?)(a) Information held by an investigative agency pursuant to an investigation of a violation of s. 895.03 is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. (b) Information made confidential and exempt under paragraph (a) may be disclosed by the investigative agency to: 1. A government entity in the performance of its official duties. 2. A court or tribunal. (c) Information made confidential and exempt under paragraph (a) is no longer confidential and exempt once all investigations to which the information pertains are completed, unless the information is otherwise protected by law. (d) For purposes of this subsection, an investigation is considered complete once the investigative agency either files an action or closes its investigation without filing an action. (e) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2020, unless reviewed and saved from repeal through reenactment by the Legislature. History.-s. 1, ch. 79-218; s. 2, ch. 84-38; s. 4, ch. 87-139; s. 20, ch. 88-381; s. 1448, ch. 97-102; s. 1, ch. 2015-99. Note.-Formers. 943.465. 895.07 RICO lien notice.- (1) Upon the institution of any civil proceeding, the investigative agency, then or at any time during the pendency of the proceeding, may file a RICO lien notice in the official records of any one or more counties. No filing fee or other charge shall be required as a condition for filing the RICO lien notice, and the clerk of the circuit court shall, upon the presentation of a RICO lien notice, immediately record it in the official records. (2) The RICO lien notice shall be signed by the head of the Department of Legal Affairs or her or his designee or by a state attorney or her or his designee. The notice shall be in such form as the Attorney General prescribes and shall set forth the following information: (a) The name of the person against whom the civil proceeding has been brought. In its discretion, the investigative agency may also name in the RICO lien notice any other aliases, names, or fictitious names under which the person may be known and any corporation, partnership, or other entity that is either controlled or entirely owned by the person. (b) If known to the investigative agency, the present residence and business addresses of the person named in the RICO lien notice and of the other names set forth in the RICO lien notice. (c) A reference to the civil proceeding, stating: that a proceeding under the Florida RICO Act has been brought against the person named in the RICO lien notice; the name of the county or counties in which the proceeding has been brought; and, if known to the investigative agency at the time of filing the RICO lien notice, the case number of the proceeding. (d) A statement that the notice is being filed pursuant to the Florida RICO Act. (e) The name and address of the investigative agency filing the RICO lien notice and the name of the individual signing the RICO notice. A RICO lien notice shall apply only to one person and, to the extent applicable, any other aliases, names, or fictitious names, including names of corporations, partnerships, or other entities, to the extent permitted in paragraph (a). A separate RICO lien notice shall be filed for each person against whom the 5/24/2016 2:53PM RAS00000141 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/ statutes/index.cfin? App _ mode=Disp lay_ Stat. .. 10 ofl4 investigative agency desires to file a RICO lien notice under this section. (3) The investigative agency shall, as soon as practicable after the filing of each RICO lien notice, furnish to the person named in the notice either a copy of the recorded notice or a copy of the notice with a notation thereon of the county or counties in which the notice has been recorded. The failure of the investigative agency to furnish a copy of the notice under this subsection shall not invalidate or otherwise affect the notice. (4) The filing of a RICO lien notice creates, from the time of its filing, a lien in favor of the state on the following property of the person named in the notice and against any other names set forth in the notice: (a) Any real property situated in the county where the notice is filed then or thereafter owned by the person or under any of the names; and (b) Any beneficial interest situated in the county where the notice is filed then or thereafter owned by the person or under any of the names. The lien shall commence and attach as of the time of filing of the RICO lien notice and shall continue thereafter until expiration, termination, or release of the notice pursuant to s. 895.08. The lien created in favor of the state shall be superior and prior to the interest of any other person in the real property or beneficial interest if the interest is acquired subsequent to the filing of the notice. (51 In conjunction with any civil proceeding: (a) The investigative agency may file without prior court order in any county a lis pendens under the provisions of s. 48.23; in such case, any person acquiring an interest in the subject real property or beneficial interest, if the real property or beneficial interest is acquired subsequent to the filing of lis pendens, shall take the interest subject to the civil proceeding and any subsequent judgment of forfeiture. (b) If a RICO lien notice has been filed, the investigative agency may name as a defendant, in addition to the person named in the notice, any person acquiring an interest in the real property or beneficial interest subsequent to the filing of the notice. If a judgment of forfeiture is entered in the proceeding in favor of the state, the interest of any person in the property that was acquired subsequent to the filing of the notice shall be subject to the notice and judgment of forfeiture. (6) A trustee who acquires actual knowledge that a RICO lien notice or a civil proceeding or criminal proceeding has been filed against any person for whom the trustee holds legal or record title to real property shall immediately furnish to the investigative agency the following: (a) The name and address of the person, as known to the trustee. (b) The name and address, as known to the trustee, of each other person for whose benefit the trustee holds title to the real property. (c) If requested by the investigative agency, a copy of the trust agreement or other instrument pursuant to which the trustee holds legal or record title to the real property. Any trustee who fails to comply with the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. n5.082 or s. 775,083. (7) Any trustee who conveys title to real property for which, at the time of the conveyance, a RICO lien notice naming a person who, to the actual knowledge of the trustee, holds a beneficial interest in the trust has been filed in the county where the real property is situated is liable to the state for the greatest of: (a) The amount of proceeds received directly by the person named in the RICO lien notice as a result of the conveyance; 5/24/2016 2:53PM RAS00000142 Statutes lj< Constitution :View Statutes: Online Sunshine http:/ /www.leg.state.fl.us/statutes/index. cfm? App _ mode~Di splay_ Stat. .. llofl4 (b) The amount of proceeds received by the trustee as a result of the conveyance and distributed to the person named in the RICO lien notice; or (c) The fair market value of the interest of the person named in the RICO lien notice in the real property so conveyed; however, if the trustee conveys the real property and holds the proceeds that would otherwise be paid or distributed to the beneficiary or at the direction of the beneficiary or her or his designee, the trustee's liability shall not exceed the amount of the proceeds so held for so long as the proceeds are held by the trustee. (8) The filing of a RICO lien notice shall not constitute a lien on the record title to real property as owned by the trustee except to the extent that the trustee is named in the RICO lien notice. The investigative agency may bring a civil proceeding in any circuit court against the trustee to recover from the trustee the amount set forth in subsection (7), and the state shall also be entitled to recover investigative costs and attorney's fees incurred by the investigative agency. (9) The filing of a RICO lien notice shall not affect the use to which real property or a beneficial interest owned by the person named in the RICO lien notice may be put or the right of the person to receive any avails, rents, or other proceeds resulting from the use and ownership, but not the sale, of the property until a judgment of forfeiture is entered. (1 O)(a) The provisions of this section shall not apply to any conveyance by a trustee pursuant to a court order, unless such court order is entered in an action between the trustee and the beneficiary. (b) Unless the trustee has actual knowledge that a person owning a beneficial interest in the trust is named in a RICO lien notice or is otherwise a defendant in a civil proceeding, the provisions of this section shall not apply to: 1. Any conveyance by the trustee required under the terms of the trust agreement, which trust agreement is a matter of public record prior to the filing of the RICO lien notice; or 2. Any conveyance by the trustee to all of the persons who own beneficial interests in the trust. (11) All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. History.-s. 3, ch. 81-141; s. 170, ch. 83-216; s. 224, ch. 91-224; s.1449, ch. 97-102. 895,08 Term of RICO lien notice.- (1) The term of a RICO lien notice shall be for a period of 6 years from the date of filing, unless a renewal RICO lien notice has been filed by the investigative agency; in such case, the term of the renewal RICO lien notice shall be for a period of 6 years from the date of its filing. The investigative agency shall be entitled to only one renewal of the RICO lien notice. (2) The investigative agency filing a RICO lien notice may release in whole or in part the RICO lien notice or may release any specific real property or beneficial interest from the RICO lien notice upon such terms and conditions as it may determine. A release of a RICO lien notice executed by the investigative agency may be filed in the official records of any county. No charge or fee shall be imposed for the filing of a release of a RICO lien notice. (3) If no civil proceeding has been instituted by the investigative agency seeking a forfeiture of any property owned by the person named in the RICO lien notice, the acquittal in the criminal proceeding of the person named in the RICO lien notice or the dismissal of the criminal proceeding shall terminate the RICO lien notice and, in such case, the filing of the RICO lien notice shall have no effect. In the event the criminal proceeding has been dismissed or the person named in the RICO lien notice has been acquitted in the criminal proceeding, the RICO lien notice shall continue for the duration of the civil proceeding. (4) If no civil proceeding is then pending against the person named in a RICO lien notice, the person 5/24/20 J 6 2:53 PM RAS00000143 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl.us/ statuteslindex.cfin? App _ mode~Disp I ay _Stat. .. 12 ofl4 named in the RICO lien notice may institute an action in the county where the notice has been filed against the investigative agency that filed the notice seeking a release or extinguishment of the notice. In such case: (a) The court shall, upon the motion of such person, immediately enter an order setting a date for hearing, which date shall be not less than 5 or more than 10 days after the suit has been filed, and the order along with a copy of the complaint shall be served on the investigative agency within 3 days after the institution of the suit. At the hearing, the court shall take evidence on the issue of whether any real property or beneficial interest owned by such person is covered by the RICO lien notice or is otherwise subject to forfeiture under the Florida RICO Act; if such person shows by a preponderance of the evidence that the RICO lien notice is not applicable to him or her or that any real property or beneficial interest owned by the person is not subject to forfeiture under the Florida RICO Act, the court shall enter a judgment extinguishing the RICO lien notice or releasing the real property or beneficial interest from the RICO lien notice. (b) The court shall immediately enter its order releasing from the RICO lien notice any specific real property or beneficial interest if a sale of such real property or beneficial interest is pending and the filing of the notice prevents the sale of the property or interest; however, the proceeds resulting from the sale of such real property or beneficial interest shall be deposited into the registry of the court, subject to the further order of the court. (c) At the hearing set forth in paragraph (a), the court may release any real property or beneficial interest from the RICO lien notice, upon the posting by such person of such security as is equal to the value of the real property or beneficial interest owned by such person. (5) In the event a civil proceeding is pending against a person named in a RICO lien notice, the court upon motion by such person may grant the relief set forth herein. History.-s. 4, ch. 81-141; s. 1450, ch. 97-102. 895.09 Disposition of funds obtained through forfeiture proceedings.- (1) A court entering a judgment of forfeiture in a proceeding brought pursuant to s. 895.05 shall retain jurisdiction to direct the distribution of any cash or of any cash proceeds realized from the forfeiture and disposition of the property. The court shall direct the distribution of the funds in the following order of priority: (a) Any statutory fees to which the clerk of the court may be entitled. (b) Any claims against the property by persons who have previously been judicially determined to be innocent persons, pursuant to the provisions of s. 895.05(2)(c), and whose interests are preserved from forfeiture by the court and not otherwise satisfied. Such claims may include any claim by a person appointed by the court as receiver pending litigation. (c) Any claim by the Board of Trustees of the Internal Improvement Trust Fund on behalf of the Internal Improvement Trust Fund or the trust fund used pursuant to s. 253.03(12), not including administrative costs of the Department of Environmental Protection previously paid directly from the Internal Improvement Trust Fund in accordance with legislative appropriation. (2)(a) Following satisfaction of all valid claims under subsection (1 ), 25 percent of the remainder of the funds obtained in the forfeiture proceedings pursuant to s. 895.05 shall be deposited as provided in paragraph (b) into the appropriate trust fund of the Department of Legal Affairs or state attorney's office which filed the civil forfeiture action; 25 percent shall be deposited as provided in paragraph (c) into the applicable law enforcement trust fund of the investigating law enforcement agency conducting the investigation which resulted in or significantly contributed to the forfeiture of the property; 25 percent 5/24/2016 2:53PM RAS00000144 Statutes {k Constitution :View Statutes : Online Sunshine http:/ /www.l eg.state .fl. us/statutes/ index. cfin? App _mode~Disp Jay_ Stat. .. 13 ofl4 shall be deposited in the General Revenue Fund; and the remaining 25 percent shall be deposited in the Internal Improvement Trust Fund of the Department of Environmental Protection. If a forfeiture action is filed by the Department of Legal Affairs or a state attorney, the court entering the judgment of forfeiture shall, taking into account the overall effort and contribution to the investigation and forfeiture action by the agencies that filed the action, make a pro rata apportionment among such agencies of the funds available for distribution to the agencies filing the action as provided in this section. If multiple investigating law enforcement agencies have contributed to the forfeiture of the property, the court which entered the judgment of forfeiture shall, taking into account the overall effort and contribution of the agencies to the investigation and forfeiture action, make a pro rata apportionment among such investigating law enforcement agencies of the funds available for distribution to the investigating agencies as provided in this section. (b) If a forfeiture action is filed by the Attorney General, any funds obtained by the Department of Legal Affairs by reason of paragraph (a) shall be deposited in the Legal Affairs Revolving Trust Fund as established by s. 16.53 and may be expended for the purposes and in the manner authorized in that section. If a forfeiture action is filed by a state attorney, any funds obtained by the state attorney's office by reason of paragraph (a) shall be deposited in the State Attorney RICO Trust Fund as established by s. 27.345 and may be expended for the purposes and in the manner authorized in that section. In addition, any funds that are distributed pursuant to this section to an agency filing a forfeiture action may be used to pay the costs of investigations of violations of this chapter and the criminal prosecutions and civil actions related thereto. Such costs may include all taxable costs; costs of protecting, maintaining, and forfeiting the property; employees' base salaries and compensation for overtime; and such other costs as are directly attributable to the investigation, prosecution, or civil action. (c) Any funds distributed to an investigating law enforcement agency under paragraph (a) shall be deposited in the applicable law enforcement trust fund established for that agency pursuant to s. 932.7055 and expended for the purposes and in the manner authorized in that section. In addition, any funds distributed to an investigating law enforcement agency pursuant to this section may be used to pay the costs of investigations of violations of this chapter and the criminal prosecutions and civil actions related thereto, pursuant to s. 932.7055. Such costs may include all taxable costs; costs of protecting, maintaining, and forfeiting the property; employees' base salaries and compensation for overtime; and such other costs directly attributable to the investigation, prosecution, or civil action. (d) On a quarterly basis, any excess funds from forfeited property receipts, including interest, over $1 million deposited in the Internal Improvement Trust Fund of the Department of Environmental Protection in accordance with paragraph (a) shall be deposited in the General Revenue Fund. (3) Nothing in this section shall be construed to limit the authority of an entity that files a forfeiture action to compromise a claim for forfeiture; however, any proceeds arising from a compromise or from the sale of property obtained in a compromise shall be distributed in the manner provided in subsections (1) and (2). (4) Pending the final distribution of the cash or cash proceeds pursuant to this section, the court may authorize the cash or cash proceeds to be deposited in the court registry or in a qualified public depository. (5) For purposes of this section, the term "cash or cash proceeds" includes, but is not limited to, damages or penalties or any other monetary payment, the monetary proceeds from property forfeited to the state pursuant to s. 895.05, or any payment made by any defendant by reason of any decree or settlement in any action filed pursuant to s. 895.05. History.-s.1, ch. 84-249; s. 2, ch. 85-306; s. 7, ch. 86-277; s. 21, ch. 88-381; ss.1, 6, ch. 89-102; ss. 8, 9, ch. 92-54; s. 41, 5/24/2016 2:53PM RAS00000145 St~tutes & Constitution :View Statutes: Online Sunshine http :1 /www.leg.state. fl. us/statutes/index.cfm? App _mode~Display _Stat. .. 14 ofl4 ch. 93-39; s. 16, ch. 94·316; s. 478, ch. 94·356; s. 2, ch. 98-389; s. 306, ch. 99-8; s. 37, ch. 2004-234; s. 112, ch. 2006-1; s. 9, ch. 2008-16; s. 82, ch. 2015·229. Copyright© 1995-2016 The Florida Legislature • Privacy Statement • Contact Us 5/24/2016 2:53PM RAS00000146 U.S.C. Title 18-CRIMES AND C RrMINAL PROCEDURE https://www.gpo.gov/fdsys /pkg/USCODE-2009-title 18 /htm i/USCOD E ... .. 1 of 17 18 u.s.c. 96 United State s Code, 2009 Ed iti on T itle 18 -CRIMES AND CRIMJNAL PRO CEDURE PART I -C RI MES C HA PTE R 96 -RACKETEER INFLUENCED AND CORRUPT ORGANIZATI ONS From the U.S . Government Printing Office, www.gpo.gov CHAPTER 96-RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS Sec. 196 1 . D efi nitions. 1962 . Prohibited activ it ies. 1963. C riminal penalties. 1964 . Civ il remedies. 1965. Venue and process. 1966 . Expedition of act ions. 1967. Ev id ence. 19 68. C iv il inv e sti gati ve demand . AMENDMENTS ~teO 1990-Pub . L. I 01-647, titl e XXXV, §3559, Nov. 29, 1990, I 04 St at. 4927, stru ck o ut "racketee rin g" afte r "Prohibited" in ite m 1962. 1970-Pub. L. 9 1-452, tit le IX , §90 I (a), Oct. 15, 1970, 84 Stat. 94 1, added chapter 96 and items 196 1 to 1968. §1961. Definitions As used in this chapter- ( I) "racketeering activity" me ans (A) a ny a ct o r threat invo lv ing murder, kid n apping, gambling, arson, robbery, bribery, extortion , dea lin g in obscene ma tter, or dea ling in a c ontro ll ed s ubst a nc e or li sted chemical (as defmed in section I 02 of the Co ntro ll ed Substances Act), w hich is c h a rgeab le under State law and punis hable by impri sonment for more than one year ; (B) a ny act wh ich is indictable under a ny of the following prov is io ns of title 18 , United States Code : Section 20 I (re lating to bribery), section 224 (relating to sports bribe ry), se ctio ns 4 7 1, 4 72, a nd 473 (re lating t o counterfeiting), secti on 659 (relating to t heft from int e rstate shipme nt) if the act indictab le under section 659 is feloniou s, section 664 (r e lating to e mbezzlement from pens ion a nd welfare fund s), sections 89 1-894 (relating to extottio nat e credit tra nsactions), sectio n I 028 (re lating to fraud a nd re lated activ it y in connection with id entification document s), section 1029 (re lating to fraud a nd rel ated activ it y in c o nn ectio n w ith access devices), section I 084 (re la ting t o the tra ns mi ss ion of ga mbling info rm ation), sec ti o n 1341 (re lating to ma il fraud), sectio n 1343 (relating to w ir e fraud), section 1344 (re la ting t o fin anc ial in stitution fra ud ), sectio n 14 25 (relating to t he procurement of citizenship o r na tio nali zatio n unlawfull y), section 14 26 (relating t o the reprod uction of naturalizat ion or citi zens hip pape rs), section 14 27 (rel ating to the sale of natura li zat io n o r citizenship papers), sectio ns 1461 -1465 (relating to o bsce ne m atter), sect ion 15 03 (relating to obstructio n of justice), section 15 10 (re lat in g t o obstruction of crimin a l in vestigatio ns), section 15 11 (re lating to the obstruction of State or local law e nforceme nt), section 15 12 (re la tin g to t a mpering with a witness, victim, or a n info rm ant), section 15 13 (re lating t o ret a li ating aga in st a 5/24 /20 16 3 :49PM RAS00000147 U.S. C. Title 18 -CRIMES AND CRIMINAL PROCEDURE ' 0 https ://www.gpo.gov/fdsys/pkg!USCODE-2009-title 18/htmi /USCODE ... 2 of 17 witness, victim, o r an informa nt), section I 542 (relating to false statement in application and use of passport), section 1543 (relating to forgery or false use of passport), section 1544 (rel ating to misuse of passport), section 1546 (relating to fraud and misuse of visas, permits, and other documents), sections 1581 -1592 (re lating to peonage, s lavery, and trafficking in persons)) section 1951 (relating to interference with commerce, robbery, o r extortion), sect ion I 952 (relating to racketeering), section 1953 (re lating to inte rstate transportation of wagerin g paraphernalia), se ction 1954 (relating to unlawful we lfare fund pay ments), section 1955 (re lating to the prohibition of illegal gambling businesses), section I 956 (relating to t he laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specifi ed unlawful activity), sectio n I 95 8 (re latin g to use of int e rstate commerce facilitie s in the commission of murder-for-hire), section I 960 (relating to illegal money transmitters), sections 225 1, 225 1 A, 2252, and 2260 (relating to sexual exploitation of ch ildren), sections 23 12 and 2313 (re lating to interstate transportation of stolen motor vehicles), sections 23 14 and 23 15 (relating to in terstate transportation of sto len property), sectio n 2318 (relating to trafficking in counterfeit labe ls for phonorecords, computer programs or computer program documentation or packaging and copies of motion pictures o r other audiovisual works), section 2319 (relat in g to criminal infringement of a copyright), section 2319A (relating to unauthorized fixation of and trafficking in sound recordings and music videos of li ve mus ical performances), section 2320 (re latin g to trafficking in goods or services bearing counterfeit ma rks), sect ion 2321 (relating to trafficking in cetiain motor vehicles or motor vehicle patis), sect ions 2341 -2346 (relating to trafficking in contraband c igarettes), sections 242 1-24 (relating to w hite slave traffic), sections 175-178 (relating to biological weapons), sections 229-229F (relating to chemical weapons), section 831 (relating to nuclear materials), (C) any act which is indictable under title 29, Unit ed States Code, sect ion 18 6 (dealing with re stri ctions on payments and loans to labor organizations) or se ction 50 I (c) (relating to e mbezzlement from union funds), (D) a ny offense involving fraud connected with a case under title 11 (except a case under section 157 of this title), fraud in the sale of sec urities, or the fe lonious m a nufacture, importation, receiving, concealment, buying, se llin g, or otherwise dealing in a controlled substa nce or li sted c hem ic a l (as defmed in section I 02 of the Contro ll ed Substances Act), punishable under any law of the United States, (E) any act which is indictable under t he Currency and Fore ign Transactions Repotiing Act, (F) a ny act whic h is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain al iens), section 277 (relating to aid in g or assist in g ce rtain a li ens to enter the United States), or sect ion 278 (re lating to imp otiation of a li en for immoral purpose) if the act indictable under such section of s uch Act was committed for the p urpose offmancial ga in , or (G) a ny act that is indictable under any provis ion li sted in section 2332b(g)(5)(B); (2) "State" means any State of the United States, the Di strict of Co lumbi a, the Commonwealth of Puerto Rico , a ny territory or possess ion of the United States, a ny political s ubdivision, or any department, agency, or in s trumentality thereof; (3) "person" includes any in div id ua l or entity capable of holding a legal or b e neficial interest in propetiy; (4) "enterprise" includ es any individual, partners hip , corporation, associati on, or other legal entit y, and any union or group of individua ls associated in fact a lthough not a legal e ntity; (5) "pattern of racketeering activity" requires a t least two acts of racketeering activity, one of which occurred after the effect ive date of this chapter and the last of which occ urred w ithin ten years (excluding any period of impriso nment) after the commission of a prior act of racke te e ring activity; (6) "unlawful debt" means a debt (A) incurred o r contracted in gambling activ it y which was in v iolation of the law ofthe United States, a State or po litical s ubdiv is ion thereof, or which is unenforceable under State or Federa l law in who le or in pati as to principal or interest becau se of t he laws re lating to u s ury, a nd (B) which was incurred in connection with the bus in ess of ga mblin g 5/24 /2016 3:49 PM RAS00000148 U.S.C. Title 18-CRIMES AND CRIMINAL PROCEDURE https :/ /www.gpo.gov/fdsys/pkg/USCODE-2009-title 18/html/USCODE. .. '• 3 ofl7 in violation of the law of the United States, a State or political subdivision thereof, or the business oflending money or a thing of value at a rate usurious under State or Federal law, where the usurious rate is at least twice the enforceable rate; (7) "racketeering investigator" means any attorney or investigator so designated by the Attorney General and charged with the duty of enforcing or carrying into effect this chapter; (8) "racketeering investigation" means any inquiry conducted by any racketeering investigator for the purpose of ascertaining whether any person has been involved in any violation of this chapter or of any fmal order, judgment, or decree of any court of the United States, duly entered in any case or proceeding arising under this chapter; (9) "documentary material" includes any book, paper, document, record, recording, or other material; and (10) "Attorney General" includes the Attorney General of the United States, the Deputy Attorney General of the United States, the Associate Attorney General ofthe United States, any Assistant Attorney General of the United States, or any employee of the Department of Justice or any employee of any department or agency of the United States so designated by the Attorney General to carry out the powers conferred on the Attorney General by this chapter. Any department or agency so designated may use in investigations authorized by this chapter either the investigative provisions of this chapter or the investigative power of such department or agency otherwise conferred by law. (Added Pub. L. 91-452, title IX, §901 (a), Oct. 15, 1970, 84 Stat. 941; amended Pub. L. 95-575, §3(c), Nov. 2, 1978,92 Stat. 2465; Pub. L. 95-598, title III, §314(g), Nov. 6, 1978,92 Stat. 2677; Pub. L. 98-473, title II, §§90l(g), 1020, Oct. 12, 1984, 98 Stat. 2136, 2143; Pub. L. 98-547, title II, §205, Oct. 25, 1984,98 Stat. 2770; Pub. L. 99-570, title I, §1365(b), Oct. 27,1986,100 Stat. 3207-35; Pub. L. 99-646, §50(a), Nov. 10, 1986, 100 Stat. 3605; Pub. L. 100--{)90, title VII, §§7013, 7020(c), 7032, 7054,7514, Nov. 18, 1988, 102 Stat. 4395,4396,4398,4402, 4489; Pub. L. 101-73, title IX, §968, Aug. 9, 1989, 103 Stat. 506; Pub. L. 101-647, title XXXV, §3560, Nov. 29, 1990, 104 Stat. 4927; Pub. L. 103-322, title IX, §90104, title XVI,§ 160001(£), title XXXIII, §330021(1), Sept. 13, 1994, 108 Stat. 1987,2037, 2150; Pub. L. 103-394, title III, §312(b), Oct. 22,1994, 108 Stat. 4140; Pub. L. 104-132, title IV, §433, Apr. 24, 1996, 110 Stat. 1274; Pub. L. 104-153, §3, July 2, 1996, 110 Stat. 1386; Pub. L. 104-208, div. C, title II, §202, Sept. 30, 1996, 110 Stat. 3009-565; Pub. L. 104-294, title VI, §§60l(b)(3), (i)(3), 604(b)(6), Oct. 11, 1996, 110 Stat. 3499, 3501, 3506; Pub. L. 107-56, title VIII, §813, Oct. 26,2001, 115 Stat. 382; Pub. L. 107-273, div. B, title IV, §4005(£)(1), Nov. 2, 2002, 116 Stat. 1813; Pub. L. 108-193, §5(b), Dec. 19,2003, 117 Stat. 2879; Pub. L. 108-458, title VI, §6802(e), Dec. 17,2004, 118 Stat. 3767; Pub. L. 109-164, title I, §103(c), Jan. 10,2006, 119 Stat. 3563; Pub. L. 109-177, title IV, §403(a), Mar. 9, 2006, 120 Stat. 243.) REFERENCES IN Tll.XT Section 102 of the Controlled Substances Act, referred to in par. (l)(A), (D), is classifi.ed to section 802 of Title 21, Food and Drugs. The Currency and Foreign Transactions Reporting Act, referred to in par. (I )(E), is title II of Pub. L. 91-508, Oct. 26, 1970, 84 Stat. 1118, which was repealed and reenacted as subchapter II of chapter 53 of Title 31, Money and Finance, by Pub. L. 97-258, §4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted Title 31. The Immigration and Nationality Act, referred to in par. (1)(F), is act June 27, 1952, ch. 477,66 Stat. 163, as amended, which is classified principally to chapter 12 (§1101 et seq.) of Title 8, Aliens and Nationality. Sections 274,277, and 278 of the Act are classified to sections 1324, 1327, and 1328 of Title 8, respectively. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of Title 8 and Tables. The effective date ofthis chapter, referred to in par. (5), is Oct. 15, 1970. AMENnMllNTS 2006-Par. (!)(B). Pub. L. I 09-177 inserted "section 1960 (relating to illegal money transmitters)," before 5/24/2016 3:49PM RAS00000149 lJ.S.C. Titl.e 18-CRIMES AND CRIMINAL PROCEDURE https ://www. gpo. gov /fdsys/pJ<&IUSCODE-2009-tit1e 18/htrnl/USCODE ... 4 ofl7 "sections 2251". Pub. L. 109-164 substituted "1581-1592" for "1581-1591". 2004-Par. (1 )(B). Pub. L. 108--458 inserted "sections 175-178 (relating to biological weapons), sections 229-229F (relating to chemical weapons), section 831 (relating to nuclear materials)," before "(C) any act which is indictable under title 29". 2003-Par. (1)(B). Pub. L. 108-193, which directed amendment of par. (l)(A) of this section by substituting "sections 1581-1591 (relating to peonage, slavery, and trafficking in persons)." for "sections 1581-1588 (relating to peonage and slavery)", was executed by making the substitution in par. (1)(B) to reflect the probable intent of Congress. 2002-Par. (!)(G). Pub. L. 107-273 made technical amendment to directory language of Pub. L. 107-56. See 2001 Amendment note below. 2001-Par. (l)(G). Pub. L. 107-56, as amended by Pub. L. 107-273, which directed addition of cl. (G) before period at end, was executed by making the addition before the semicolon at end to reflect the probable intent of Congress. 1996-Par. (1)(B). Pub. L. 104-294, §604(b)(6), amended directory language ofFub. L. 103-322, §160001(!). See 1994 Amendment note below. Pub. L. 104-294, §601(i)(3), substituted "2260" for "2258". Pub. L. 104-208 struck out "if the act indictable under section 1028 was committed for the purpose of financial gain" before", section 1029", inserted "section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers)," after "section 1344 (relating to financial institution fraud),", struck out "if the act indictable under section 1542 was committed for the purpose of financial gain" before", section 1543", "if the act indictable under section 1543 was committed for the purpose of financial gain" before ", section 1544", "if the act indictable under section 1544 was committed for the purpose of financial gain" before", section 1546", and "if the act indictable under section 1546 was committed for the purpose of financial gain" before", sections 1581-1588". Pub. L. 104-153 inserted ", section 2318 (relating to trafficking in counterfeit labels for phonorecords, computer programs or computer program documentation or packaging and copies of motion pictures or other audiovisual works), section 2319 (relating to criminal infringement of a copyright), section 2319 A (relating to unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), section 2320 (relating to trafficking in goods or services bearing counterfeit marks)" after "sections 2314 and 2315 (relating to interstate transportation of stolen property)". Pub. L. I 04-132, §433(1 ), (2), inserted "section 1028 (relating to fi·aud and related activity in connection with identification docwnents) if the act indictable under section 1028 was committed for the purpose of financial gain," before "section 1029" and "sectionl542 (relating to false statement in application and use of passport) if the act indictable under section 1542 was committed for the purpose of financial gain, section 1543 (relating to forgery or false use of passport) if the act indictable under section 1543 was committed for the purpose of financial gain, section 1544 (relating to misuse of passport) if the act indictable under section 1544 was committed for the purpose of financial gain, section 1546 (relating to fraud and misuse of visas, permits, and other documents) if the act indictable under section1546 was committed for the purpose of financial gain, sections 1581-1588 (relating to peonage and slavery)," after "section 1513 (relating to retaliating against a witness, victim, or an informant),". Par. (l)(D). Pub. L. 104-294, §601(b)(3), substituted "section !57 of this title" for "section 157 of that title". Par. (!)(F). Pub. L. 104-132, §433(3), (4), which directed addition of cl. (F) before period at end, was executed by making the addition before the semicolon at end to reflect the probable intent of Congress. 1994-Par. (1)(A). Pub. L. 103-322, §330021(1), substituted "kidnapping" for "kidnaping". Pub. L. 103-322, §90104, substituted "a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act)" for "narcotic or other dangerous drugs". Par. (1)(B). Pub. L. 103-322, §160001(!), as amended by Pub. L. 104-294, §604(b)(6), substituted "2251, 2251A, 2252, and 2258" for "2251-2252". Par. (l)(D). Pub. L. 103-394 inserted "(except a case under section 157 of that title)" after "title 11 ". Pub. L. 103-322, §90104, substituted "a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act)" for "narcotic or other dangerous drugs". 5/24/2016 3:49PM RAS00000150 US. C. Tit\e 18-CRIMES AND CRIMINAL PROCEDURE https :/ /www.gpo.gov/fdsys/pkWUSCODE-2009-title 18/html/USCODE ... 5 of 17 1990-Par. (I )(B). Pub. L. 101-647 substituted "section 1029 (relating to" for "section I 029 (relative to" and struck out "sections 2251 through 2252 (relating to sexual exploitation of children)," before ", section 1958". 1989-Par. (I). Pub. L. 101-73 inserted "section 1344 (relating to financial institution fraud)," after "section 1343 (relating to wire fraud),". 1988-Par. (!)(B). Pub. L. I 00-690, §7514, inserted "sections 2251 through 2252 (relating to sexual exploitation of children),". Pub. L. 100-690, §7054, inserted", section 1029 (relative to fraud and related activity in connection with access devices)" and ", section 1958 (relating to use of interstate commerce facilities in the commission of murder-for-hire), sections 2251-2252 (relating to sexual exploitation of children)". Pub. L. I 00-690, §7032, substituted "section 2321" for "section2320". Pub. L. 100-690, §7013, made technical amendment to directory language of Pub. L. 99-646. See 1986 Amendment note below. Par. (10). Pub. L. 100-690, §7020(c), inserted ''the Associate Attorney General of the United States," after "Deputy Attorney General of the United States,". 1986-Par. (!)(B). Pub. L. 99-646, as amended by Pub. L. 100-690, §7013, inserted "section 1512 (relating to tampering with a witness, victim, or an informant), section1513 (relating to retaliating against a witness, victim, or an informant)," after "section 1511 (relating to the obstruction of State or local law enforcement),". Pub. L. 99-570 inserted "sectionl956 (relating to the laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity),". 1984-Par. (1)(A). Pub. L. 98-473, §1020(1), inserted "dealing in obscene matter," after "extortion,". Par. (!)(B). Pub. L. 98-547 inserted "sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles)," and "section 2320 (relating to trafficking in certain motor vehicles or motor vehicle parts),". Pub. L. 98-4 73, § 1020(2), inserted "sections 1461-1465 (relating to obscene matter),". Par. (!)(E). Pub. L. 98-473, §901 (g), added cl. (E). 1978-Par. (1 )(B). Pub. L. 95-575 inserted "sections 2341-2346 (relating to trafficking in contraband cigarettes),". Par. (!)(D). Pub. L. 95-598 substituted "fraud connected with a case under title 11" for "bankmptcy fraud". EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107-273, div. B, title IY, §4005(!)(1), Nov. 2, 2002, 116 Stat. 1813, provided that the amendment made by section 4005(!)(1) is effective Oct. 26,2001. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 604(b)(6) ofPub. L. 104-294 effective Sept. 13, 1994, see section 604(d) of Pub. L. 104-294, set out as a note under section13 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. I 03-394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before Oct. 22, 1994, see section 702 of Pub. L. I 03-394, set out as a note under section 101 ofTit1e 11. EFFECTIVE DATE OF 1978 AMENDMENTS Amendment by Pub. L. 95-598 effective Oct. l, 1979, see section 402(a) of Pub. L. 95-598, set out as an Effective Date note preceding sectionl01 of Title 11, Bankruptcy. Amendment by Pub. L. 95-575 effective Nov. 2, 1978, see section 4 of Pub. L. 95-575, set out as an Effective Date note under section 2341 of this title. SHORT TITLE OF 1984 AMENDMENT Section 301 of chapter ill (§§301-322) oftitle II of Pub. L. 98-473 provided that: "This title [probably means this chapter, enacting sections 1589, !600, 1613a, and 1616 of Title 19, Customs Duties and sections 853, 854, and 970 of Title 21, Food and Dmgs, amending section 1963 of this title and sections 1602, 1605, 1606,1607,1608,1609,1610, 16ll, 1612,1613,1614,1615,1618,1619, and 1644 ofTitle 19, sections 824, 848, and 881 of Title 21, and section 524 of Title 28, Judiciary and Judicial Procedure, and repealing section 7607 of Title 26, Internal Revenue Code] may be cited as the 'Comprehensive Forfeiture Act of 1984'." 5/24/2016 3:49PM RAS00000151 1B.C. Tit!e 18 -CRIMES AND CRJMINAL PROCEDURE https :/ /www.gpo.gov/fdsys/p1<g/USCODE-2009-title 18/html/USCODE. .. 6 of 17 SHORT TITLE OF 1970 AMENDMENT Pub. L. 91--452, §1, Oct. 15, 1970,84 Stat. 922, provided in part: "That this Act [enacting this section, sections 841 to 848, 1511, 1623, 1955, 1962 to 1968, 3331 to 3334, 3503, 3504, 3575 to 3578, and 6001 to 6005 ofthis title, and section 1826 of Title 28, Judiciary and Judicial Procedure, amending sections 835, 1073, 1505, 1954,2424,2516,2517,3148, 3486, and 3500 of this title, sections 15, 87f, 135c, 499m, and 2115 of Title 7, Agriculture, section25 of Title 11, Bankruptcy, section 1820 of Title 12, Banks and Banking, sections 49, 77v, 78u, 79r, 80a--41, 80b-9, 155, 717m, 1271, and 1714 ofTitle 15, Cmmnerce and Trade, section825f of Title 16, Conservation, section 1333 of Title 19, Customs Duties, section 373 of Title 21, Food and Drugs, section 161 ofTit1e 29, Labor, section 506 of Title 33, Navigation and Navigable Waters, sections 405 and 2201 of Title 42, The Public Health and Welfare, sections 157 and 362 of Title 45, Railroads, section 1124 of former Title 46, Shipping, section 409 of Title 47, Telegraphs, Telephones, and Radio telegraphs, sections 9, 43, 46, 916, 1017, and 1484 of former Title 49, Transportation, section 792 of Title 50, War and National Defense, and sections 643a, 1152, 2026, and former section 2155 of Title 50, Appendix, repealing sections 837, 895, 1406, and 2514 of this title, sections 32 and 33 of Title 15; sections 4874 and 7493 of Title 26, Internal Revenue Code, section 827 of former Title 46, sections 47 and 48 of former Title 49, and sections 121 to 144 of Title 50, enacting provisions set out as notes under this section and sections 841, 1511, 1955, preceding 3331, preceding 3481, 3504, and 6001 of this title, and repealing provisions set out as a note tmder section 2510 of this title] may be cited as the 'Organized Crime Control Act of 1970'." Pub. L. 91--452, title IX, §901(a), Oct. 15, 1970,84 Stat. 941, is popularly known as the "Racketeer Influenced and Corrupt Organizations Act". See also Short Title note below. SHORT TITLE This chapter is popularly known as the "Racketeer Influenced and Cormpt Organizations Act". SAVINGS PROVISION Amendment by section 314 ofPub. L. 95-598 not to affect the application of chapter 9 (§151 et seq.), chapter 96 (§ 1961 et seq.), or section 2516, 3057, or 3284 of this title to any act of any person (1) committed before Oct. 1, 1979, or (2) committed after Oct. 1, 1979, in connection with a case commenced before such date, see section 403(d) of Pub. L. 95-598, set out as a note preceding section 101 of Title 11, Bankruptcy. SEPARABILITY Section 1301 of Pub. L. 91--452 provided that: "If the provisions of any part of this Act [see Short Title of 1970 Amendment note set out above] or the application thereof to any person or circumstances be held invalid, the provisions of the other parts and their application to other persons or circumstances shall not be affected thereby." CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE Section 1 of Pub. L. 91--452 provided in part that: "The Congress finds that (I) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption; (2) organized crime derives a major portion of its power through money obtained from such illegal endeavors as syndicated gambling, loansharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation; (3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability of the Nation's economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens; and (5) organized crime continues to grow because of defects in the evidence-gathering process of the law inhibiting the development of the legally admissible evidence necessary to bring criminal and other sanctions or remedies to bear on the unlawful activities of those engaged in organized crime and because the sanctions and remedies available to the Government are unnecessarily limited in scope and impact. "It is the purpose of this Act [see Short Title of 1970 Amendment note above] to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the 5/24/2016 3:49 PM RAS00000152 U.S.C. Title 18-CRIMES AND CRIMINAL PROCEDURE https :/ /www.gpo.gov /fdsys/pkgiUSCODE-2009-title 18/html/USCODE ... 7 of 17 unlawful activities ofthose engaged in organized crime." LmERAL CONSTRUCTION OF PROVISIONS; SUPERSEDURE OF FEDERAL OR STATE LAWS; AUTHORITY OF ArTORNEYS REPRESENTING UNITED STATES Section 904 oftitle IX of Pub. L. 91-452 provided that: "(a) The provisions of this title [enacting this chapter and amending sections 1505, 2516, and 2517 of this title] shall be liberally construed to effectuate its remedial purposes. "(b) Nothing in this title shall supersede any provision of Federal, State, or other law imposing criminal penalties or affording civil remedies in addition to those provided for in this title. "(c) Nothing contained in this title shall impair the authority of any attorney representing the United States to- "(!) lay before any grand jury impaneled by any district court of the United States any evidence concerning any alleged racketeering violation of law; "(2) invoke the power of any such court to compel the production of any evidence before any such grand jury; or "(3) institute any proceeding to enforce any order or process issued in execution of such power or to punish disobedience of any such order or process by any person." PRESIDENT'S COMMISSION ON ORGANIZED CruME; TAKING OF TESTIMONY AND RECEIPT OF EVIDENCE Pub. L. 98-368, July 17, 1984, 98 Stat. 490, provided for the Commission established by Ex. Ord. No. 12435, formerly set out below, authority relating to taking of testimony, receipt of evidence, subpoena power, testimony of persons in custody, immunity, service of process, witness fees, access to other records and information, Federal protection for members and staff, closure of meetings, rules, and procedures, for the period of July 17, 1984, until the earlier of2 years or the expiration of the Commission. EXECUTIVE ORDER No. 12435 Ex. Ord. No. 12435, July 28, 1983, 48 F.R. 34723, as amended Ex. Ord. No. 12507, Mar. 22, 1985, 50 F.R. 11835, which established and provided for the administration of the President's Conunission on Organized Crime, was revoked by Ex. Ord. No. 12610, Sept. 30, 1987, 52 F.R. 36901, formerly set out as a note under section 14 of the Federal Advisory Committee Act in the Appendix to Title 5, Government Organization and Employees. 1 So in original. §1962. Prohibited activities (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an Lmlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an lmlawful debt after such purchase do not amow1t in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer. (b) It shall be lilllawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign cmmnerce. 5/24/2016 3:49PM RAS00000153 l.f.S.C. Tit]e 18-CRIMES AND CRIMlNALPROCEDURE https ://www.gpo .gov /fdsys/p1cg!USCODE-2009-title 18/html/USCODE ... 8 of 17 (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. (Added Pub. L. 91-452, title IX, §90l(a), Oct. 15, 1970, 84 Stat. 942; amended Pub. L. 100-690, title VII, §7033, Nov. 18, 1988, 102 Stat. 4398.) AMENDMENTS 1988-Subsec. (d). Pub. L. 100-690 substituted "subsection" for "subsections". §1963. Criminal penalties (a) Whoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisomnent), or both, and shall forfeit to the United States, irrespective of any provision of State law- (!) any interest the person has acquired or maintained in violation of section 1962; (2) any- ( A) interest in; (B) security of; (C) claim against; or (D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962. The court, in imposing sentence on such person shall order, in addition to any other sentence imposed pursuant to this section, that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise authorized by this section, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds. (b) Property subject to criminal forfeiture under this section includes- (!) real property, including things growing on, affixed to, and found inland; and (2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities. (c) All right, title, and interest in property described in subsection (a) vests in the United States upon the commission of the act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States, unless the transferee establishes in a hearing pursuant to subsection (I) that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section. (d)( I) Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in subsection (a) for forfeiture under this section- 5/24/2016 3:49PM RAS00000154 U.S.C. Title 18 -CRIMES AND CRIMINAL PROCEDURE https :1 /www.gpo.gov /fdsys/pkg/USCODE-2009-title 18/htrnl/USCODE. .. 9 of17 (A) upon the filing of an indictment or information charging a violation of section 1962 of this chapter and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section; or (B) prior to the filing of such an indictment or information, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that- (i) there is a substantial probability that the United States will prevail on the issue offorfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and (ii) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered: Provided, however, That an order entered pursuant to subparagraph (B) shall be effective for not more than ninety days, unless extended by the court for good cause shown or unless an indictment or information described in subparagraph (A) has been filed. (2) A temporary restraining order lmder this subsection may be entered upon application of the United States without notice or opportunity for a hearing when an information or indictment has not yet been filed with respect to the property, ifthe United States demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than fourteen days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered lmder this paragraph shall be held at the earliest possible time, and prior to the expiration of the temporary order. (3) The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence. (e) Upon conviction of a person under this section, the court shall enter a judgment of forfeiture of the property to the United States and shall also authorize the Attorney General to seize all property ordered forfeited upon such terms and conditions as the court shall deem proper. Following the entry of an order declaring the property forfeited, the court may, upon application of the United States, enter such appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accmmtants, or trustees, or take any other action to protect the interest of the United States in the propetiy ordered forfeited. Any income accruing to, or derived from, an enterprise or an interest in an enterprise which has been ordered forfeited tmder this section may be used to offset ordinary and necessary expenses to the enterprise which are required by law, or which are necessary to protect the interests of the United States or third parties. (f) Following the seizure of property ordered forfeited under this section, the Attorney General shall direct the disposition of the property by sale or any other commercially feasible means, making due provision for the rights of any innocent persons. Any prope1iy right or interest not exercisable by, or transferable for value to, the United States shall expire and shall not revert to the defendant, nor shall the defendant or any person acting in concert with or on behalf of the defendant be eligible to purchase forfeited property at any sale held by the United States. Upon application of a person, other than the defendant or a person acting in concert with or on behalf of the defendant, the court may restrain or stay the sale or disposition of the property pending the conclusion of any appeal of the criminal case giving rise to the forfeiture, if the applicant demonstrates that proceeding with the sale or disposition of the property will result in irreparable injury, harm or loss to him. Notwithstanding 31 U.S. C. 3302(b ), the proceeds of any sale or other disposition of property forfeited under this section and any moneys forfeited shall be used to pay all proper expenses for the forfeiture and the sale, including expenses of seizure, maintenance and custody of the property pending its disposition, 5/24/2016 3:49 PM RAS00000155 US. C. Tit)e 18-CRJMES AND CRIMINAL PROCEDURE https: //www .gpo.gov /fdsys/pkg!USCODE-2009-title 18/htm1/USCODE ... 10 ofl7 advertising and court costs. The Attorney General shall deposit in the Treasury any amounts of such proceeds or moneys remaining after the payment of such expenses. (g) With respect to property ordered forfeited under this section, the Attorney General is authorized to- (!) grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims of a violation of this chapter, or take any other action to protect the rights of innocent persons which is in the interest of justice and which is not inconsistent with the provisions of this chapter; (2) compromise claims arising under this section; (3) award compensation to persons providing information resulting in a forfeiture under this section; ( 4) direct the disposition by the United States of all property ordered forfeited under this section by public sale or any other commercially feasible means, making due provision for the rights of innocent persons; and (5) take appropriate measures necessary to safeguard and maintain property ordered forfeited under this section pending its disposition. (h) The Attorney General may promulgate regulations with respect to- ( I) making reasonable efforts to provide notice to persons who may have an interest in property ordered forfeited under this section; (2) granting petitions for remission or mitigation of forfeiture; (3) the restitution of property to victims of an offense petitioning for remission or mitigation of forfeiture under this chapter; (4) the disposition by the United States of forfeited property by public sale or other commercially feasible means; ( 5) the maintenance and safekeeping of any property forfeited under this section pending its disposition; and (6) the compromise of claims arising under this chapter. Pending the promulgation of such regulations, all provisions of law relating to the disposition of property, or the proceeds from the sale thereof, or the remission or mitigation of forfeitures for violation ofthe customs laws, and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to forfeitures incurred, or alleged to have been incurred, tmder the provisions of this section, insofar as applicable and not inconsistent with the provisions hereof. Such duties as are imposed upon the Customs Service or any person with respect to the disposition of property under the customs law shall be performed under this chapter by the Attorney General. (i) Except as provided in subsection (1), no party claiming an interest in property subject to forfeiture under this section may- ( I) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this section; or (2) commence an action at law or equity against the United States concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture Lmder this section. Gl The district courts of the United States shall have jurisdiction to enter orders as provided in this section without regard to the location of any property which may be subject to forfeiture under this section or which has been ordered forfeited w1der this section. (k) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of petitions for remission or mitigation of forfeiture, after the entry of an order declaring property forfeited to the United States the court may, upon application of the United States, 5/24/2016 3:49PM RAS00000156 U.S. C. Title 18 -CRIMES AND CRIMINAL PROCEDURE https :/ /www.gpo.gov /fdsys/pkg/USCODE-2009-tit! e 18/html/USCODE ... llofl7 order that the testimony of any witness relating to the property forfeited be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place, in the same manner as provided for the taking of depositions under Rule 15 of the Federal Rules of Criminal Procedure. (l)(l) Following the entry of an order of forfeiture under this section, the United States shall publish notice of the order and of its intent to dispose of the property in such manner as the Attorney General may direct. The Government may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the order of forfeiture as a substitute for published notice as to those persons so notified. (2) Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the fmal publication of notice or his receipt of notice under paragraph (1 ), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The hearing shall be held before the court alone, without a jury. (3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title, or interest in the property, the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property, any additional facts supporting the petitioner's claim, and the relief sought. ( 4) The hearing on the petition shall, to the extent practicable and consistent with the interests of justice, be held within thirty days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition filed by a person other than the defendant under this subsection. (5) At the hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine witnesses who appear at the hearing. The United States may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture. (6) If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that- (A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time ofthe commission ofthe acts which gave rise to the forfeiture of the property under this section; or (B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section; the court shall amend the order of forfeiture in accordance with its determination. (7) Following the court's disposition of all petitions filed under this subsection, or if no such petitions are filed following the expiration of the period provided in paragraph (2) for the filing of such petitions, the United States shall have clear title to property that is the subject of the order of forfeiture and may warrant good title to any subsequent purchaser or transferee. (m) If any of the property described in subsection (a), as a result of any act or omission of the defendant- (!) cannot be located upon the exercise of due diligence; (2) has been transferred or sold to, or deposited with, a third party; (3) has been placed beyond the jurisdiction of the court; (4) has been substantially diminished in value; or 5/24/2016 3:49PM RAS00000157 US. C. Tit)e 18 -CRIMES AND CRIMINAL PROCEDURE https://www.gpo.gov/fdsys/pk!YUSCODE-2009-title18/html/USCODE ... 12 of 17 (5) has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property ofthe defendant up to the value of any property described in paragraphs (I) through (5). (Added Pub. L. 91-452, title IX, §901(a), Oct. 15, 1970, 84 Stat. 943; amended Pub. L. 98-473, title II, §§302, 2301(a)-(c), Oct. 12, 1984,98 Stat. 2040, 2192; Pub. L. 99-570, title I, §l153(a), Oct. 27, 1986, 100 Stat. 3207-13; Pub. L. 99-646, §23, Nov. 10, 1986, 100 Stat. 3597; Pub. L. 100-690, title VII, §§7034, 7058(d), Nov. 18, 1988, 102 Stat. 4398, 4403; Pub. L. 101-647, title XXXV, §3561, Nov. 29, 1990, 104 Stat. 4927; Pub. L. 111-16, §3(4), May 7, 2009, 123 Stat. 1607.) REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (d)(3), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. AMENDMENTS 2009-Subsec. ( d)(2). Pub. L. lll-16 substituted "fourteen days" for "ten days". 1990-Subsec. (a). Pub. L. 101-647 substituted "or both" for "or both." in introductory provisions. 1988-Subsec. (a). Pub. L. 100-690, §7058(d), substituted "shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisomnent), or both." for "shall be fined not more than $25,000 or imprisoned not more than twenty years, or both". Subsecs. (m), (n). Pub. L. I 00-690, §7034, redesignated former subsec. (n) as (m) and substituted "act or amiss ion" for "act of omission". 1986-Subsecs. (c) to (m). Pub. L. 99-646 substituted"(!)" for "(m)" in subsec. (c), redesignated subsecs. (e) to (m) as (d) to(/), respectively, and substituted"({)" for "(m)" in subsec. (i) as redesignated. Subsec. (n). Pub. L. 99-570 added subsec. (n). 1984-Subsec. (a). Pub. L. 98-4 73, §230l(a), inserted "h1lieu of a fine otherwise authorized by this section, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds." following par. (3). Pub. L. 98-473, §302, amended subsec. (a) generally, designating existing provisions as pars. (I) and (2), inserting par. (3), and provisions following par. (3) relating to power of the court to order forfeiture to the United States. Subsec. (b). Pub. L. 98-473, §302, amended subsec. (b) generally, substituting provisions relating to property subject to forfeiture, for provisions relating to jurisdiction oftl1e district courts of the United States. Subsec. (c). Pub. L. 98-473, §302, amended subsec. (c) generally, substituting provisions relating to transfer of rights, etc., in property to the United States, or to other transferees, for provisions relating to seizure and transfer of property to the United States and procedures related thereto. Subsec. (d). Pub. L. 98-473, §2301(b), struck out subsec. (d) which provided: "If any of the property described in subsection (a): (I) cannot be located; (2) has been transferred to, sold to, or deposited with, a third party; (3) has been placed beyond the jurisdiction of the court; ( 4) has been substantially diminished in value by any act or omission of the defendant; or (5) has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value of any property described in paragraphs (I) through (5)." Pub. L. 98-473, §302, added subsec. (d). Subsecs. (e) to (m). Pub. L. 98-473, §302, added subsecs. (d) to (m). Subsec. (m)(l). Pub. L. 98-473, §2301(c), struck out "for at least seven successive court days" after "dispose of the property". EFFECTIVE DATE OF 2009 AlvmND:viENT Amendment by Pub. L. 111-16 effective Dec. I, 2009, see section 7 of Pub. L. 111-16, set out as a note under section 109 of Title 11, Bankruptcy. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the 5/24/2016 3:49 PM RAS00000158 US.C. Tit:le 18 -CRJMES AND CRIMINAL PROCEDURE https ://www.gpo.gov /fdsys/pkg/USCODE-2009-title 18/html/USCODE ... 13 of 17 Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. §1964. Civil remedies (a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons. (b) The Attorney General may institute proceedings under this section. Pending final determination thereof, the court may at any time enter such restraining orders or prohibitions, or take such other actions, including the acceptance of satisfactory performance bonds, as it shall deem proper. (c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction becomes final. (d) A fmaljudgment or decree rendered in favor of the United States in any criminal proceeding brought by the United States under this chapter shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by the United States. (Added Pub. L. 91-452, title IX, §90l(a), Oct. 15, 1970, 84 Stat. 943; amended Pub. L. 98-620, title IV, §402(24)(A), Nov. 8, 1984,98 Stat. 3359; Pub. L. 104-67, title I, §107, Dec. 22, 1995, 109 Stat. 758.) AMENDMENTs 1995-Subsec. (c). Pub. L. 104-67 inserted before period at end ", except tbat no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction becomes final". 1984-Subsec. (b). Pub. L. 98-620 struck out provision that in any action brought by the United States under this section, the court had to proceed as soon as practicable to the hearing and determination thereof. EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104-67 not to affect or apply to any private action arising under title I of the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) or title I of the Securities Act of 1933 (15 U.S. C. 77a et seq.), co111111enced before and pending on Dec. 22, 1995, see section 108 of Pub. L. 104-67, set out as a note under section 77/ of Title 15, Commerce and Trade. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 not applicable to cases pending on \fov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. CoNSTRUCTION oF 1995 AMENDMENT 5/24/2016 3:49PM RAS00000159 U.S.C. Til.le 18-CRIMES AND CRIM1NALPROCEDURE https: I /www.gpo.gov /fdsys/pkg/USCODE-2009-title 18/htm!/USCODE ... 14ofl7 Nothing in amendment by Pub. L. 104-67 to be deemed to create or ratifY any implied right of action, or to prevent Securities and Exchange Commission, by rule or regulation, from restricting or otherwise regulating private actions under Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), see section203 of Pub. L. 104-67, set out as a Construction note under section 78j-1 of Title 15, Commerce and Trade. §1965. Venue and process (a) Any civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs. (b) In any action under section 1964 of this chapter in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district ofthe United States by the marshal thereof. (c) In any civil or criminal action or proceeding instituted by the United States under this chapter in the district court of the United States for any judicial district, subpenas issued by such court to compel the attendance of witnesses may be served in any other judicial district, except that in any civil action or proceeding no such subpena shall be issued for service upon any individual who resides in another district at a place more than one hundred miles from the place at which such court is held without approval given by a judge of such court upon a showing of good cause. (d) All other process in any action or proceeding under this chapter may be served on any person in any judicial district in which such person resides, is found, has an agent, or transacts his affairs. (Added Pub. L. 91-452, title IX, §90l(a), Oct. 15, 1970,84 Stat. 944.) §1966. Expedition of actions In any civil action instituted under this chapter by the United States in any district court of the United States, the Attorney General may file with the clerk of such court a certificate stating that in his opinion the case is of general public importance. A copy of that certificate shall be fumished inunediately by such clerk to the chief judge or in his absence to the presiding district judge of the district in which such action is pending. Upon receipt of such copy, such judge shall designate immediately a judge of that district to hear and determine action. (Added Pub. L. 91-452, title IX, §901(a), Oct. 15, 1970, 84 Stat. 944; amended Pub. L. 98-620, title IV, §402(24)(B), Nov. 8, 1984, 98 Stat. 3359.) AMENDMENTS 1984-Pub. L. 98-620 struck out provision that the judge so designated had to assign such action for hearing as soon as practicable, participate in the hearings and determination tl1ereof, and cause such action to be expedited in every way. EFFECTIVE DATE OF 1984 AMllND:II:ENT Amendment by Pub. L. 98-620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. §1967. Evidence In any proceeding ancillary to or in any civil action instituted by the United States under this chapter the proceedings may be open or closed to the public at the discretion ofthe court after consideration of the rights of affected persons. (Added Pub. L. 91-452, title IX, §901(a), Oct. 15, 1970,84 Stat. 944.) 5/24/2016 3:49 PM RAS00000160 U.S. C. Ti~le 18-CRIMES AND CRJMINALPROCEDURE https :1 /www.gpo .gov /fdsys/pkg/USCODE-2009-title l 8/html/USCODE. .. 15 of17 §1968. Civil investigative demand (a) Whenever the Attorney General has reason to believe that any person or enterprise may be in possession, custody, or control of any docwnentary materials relevant to a racketeering investigation, he may, prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to produce such material for examination. (b) Each such demand shall- ( I) state the nature of the conduct constituting the alleged racketeering violation which is under investigation and the provision oflaw applicable thereto; (2) describe the class or classes of documentary material produced thereunder with such defmiteness and certainty as to permit such material to be fairly identified; (3) state that the demand is returnable forthwith or prescribe a return date which will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying or reproduction; and (4) identify the custodian to whom such material shall be made available. (c) No such demand shall- ( 1) contain any requirement which would be held to be unreasonable if contained in a subpena duces tecum issued by a court of the United States in aid of a grand jury investigation of such alleged racketeering violation; or (2) require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpena duces tecum issued by a court of the United States in aid of a grand jury investigation of such alleged racketeering violation. (d) Service of any such demand or any petition filed under this section may be made upon a person by- (!) delivering a duly executed copy thereofto any partner, executive officer, managing agent, or general agent thereof, or to any agent thereof authorized by appointment or by law to receive service of process on behalf of such person, or upon any individual person; (2) delivering a duly executed copy thereof to the principal office or place of business of the person to be served; or (3) depositing such copy in the United States mail, by registered or certified mail duly addressed to such person at its principal otlice or place of business. (e) A verified return by the individual serving any such demand or petition setting forth the manner of such service shall be prima facie proof of such service. In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such demand. (f)( I) The Attorney General shall designate a racketeering investigator to serve as racketeer document custodian, and such additional racketeering investigators as he shall determine from time to time to be necessary to serve as deputies to such officer. (2) Any person upon whom any demand issued under this section has been duly served shall make such material available for inspection and copying or reproduction to the custodian designated therein at the principal place of business of such person, or at such other place as such custodian and such person thereafter may agree and prescribe in writing or as the court may direct, pursuant to this section on the return date specified in such demand, or on such later date as such custodian may prescribe in writing. Such person may upon written agreement between such person and the custodian substitute for copies of all or any part of such material originals thereof. 5/24/2016 3:49PM RAS00000161 U.S.C. Title 18-CRIMES AND CRIMINAL PROCEDURE https :1 /www.gpo.gov/fdsys/pkg/USCODE-2009-title 18/html/USCODE ... 16 of 17 (3) The custodian to whom any docwnentary material is so delivered shall take physical possession thereof, and shall be responsible for the use made thereof and for the return thereof pursuant to this chapter. The custodian may cause the preparation of such copies of such documentary material as may be required for official use under regulations which shall be promulgated by the Attorney General. While in the possession of the custodian, no material so produced shall be available for examination, without the consent of the person who produced such material, by any individual other than the Attorney General. Under such reasonable terms and conditions as the Attorney General shall prescribe, docwnentary material while in the possession of the custodian shall be available for examination by the person who produced such material or any duly authorized representatives of such person. ( 4) Whenever any attorney has been designated to appear on behalf ofthe United States before any court or grand jury in any case or proceeding involving any alleged violation of this chapter, the custodian may deliver to such attorney such documentary material in the possession of the custodian as such attorney determines to be required for use in the presentation of such case or proceeding on behalf of the United States. Upon the conclusion of any such case or proceeding, such attorney shall return to the custodian any documentary material so withdrawn which has not passed into the control of such court or grand jury through the introduction thereof into the record of such case or proceeding. (5) Upon the completion of- (i) the racketeering investigation for which any documentary material was produced under this chapter, and (ii) any case or proceeding arising from such investigation, the custodian shall return to the person who produced such material all such material other than copies thereof made by the Attorney General pursuant to this subsection which has not passed into the control of any court or grand jury through the introduction thereof into the record of such case or proceeding. ( 6) When any docw11entary material has been produced by any person under this section for use in any racketeering investigation, and no such case or proceeding arising therefrom has been instituted within a reasonable time after completion of the examination and analysis of all evidence assembled in the course of such investigation, such person shall be entitled, upon written demand made upon the Attorney General, to the return of all documentary material other than copies thereof made pursuant to this subsection so produced by such person. (7) In the event of the death, disability, or separation from service of the custodian of any documentary material produced under any demand issued under this section or the official relief of such custodian from responsibility for the custody and control of such material, the Attorney General shall promptly- (i) designate another racketeering investigator to serve as custodian thereof, and (ii) transmit notice in writing to the person who produced such material as to the identity and address of the successor so designated. Any successor so designated shall have with regard to such materials all duties and responsibilities imposed by this section upon his predecessor in office with regard thereto, except that he shall not be held responsible for any default or dereliction which occurred before his designation as custodian. (g) Whenever any person fails to comply with any civil investigative demand duly served upon him under this section or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the Attorney General may file, in the district court of the United States for any judicial district in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of this section, except that if such person transacts business in more than one such district such petition shall be filed in the district in which such person maintains his principal place of 5/24/2016 3:49PM RAS00000162 US,C. Tille 18-CRIMES AND CRIMINAL PROCEDURE https ://www.gpo.gov/fdsys/pkg/USCODE-2009-title 18/htmi/USCO DE ... 17 of 17 business, or in such other district in which such person transacts business as may be agreed upon by the parties to such petition. (h) Within twenty days after the service of any such demand upon any person, or at any time before the return date specified in the demand, whichever period is shorter, such person may file, in the district court of the United States for the judicial district within which such person resides, is fotmd, or transacts business, and serve upon such custodian a petition for an order of such court modifying or setting aside such demand. The time allowed for compliance with the demand in whole or in part as deemed proper and ordered by the court shall not run during the pendency of such petition in the court. Such petition shall specify each grotmd upon which the petitioner relies in seeking such relief, and may be based upon any failure of such demand to comply with the provisions of this section or upon any constitutional or other legal right or privilege of such person. (i) At any time during which any custodian is in custody or control of any documentary material delivered by any person in compliance with any such demand, such person may file, in the district court of the United States for the judicial district within which the office of such custodian is situated, and serve upon such custodian a petition for an order of such court requiring the performance by such custodian of any duty imposed upon him by this section. G) Whenever any petition is filed in any district court of the United States under this section, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry into effect the provisions of this section. (Added Pub. L. 91--452, title IX, §901(a), Oct. 15, 1970, 84 Stat. 944.) 5/24/2016 3:49PM RAS00000163 S tatutes & Cons titutio n :Vi ew Sta tute s: Online Suns hine http://www.le g.s tate .fl .us/Statutes /index.efm ?A pp_mode=Di s play_Stat. .. I of62 Select Ye ar: 2015 Go The 2015 Florida Statutes Title XLVI CRIMES 817.011 Definition . Chapter 817 FRAUDULENT PRACTICES CHAPTER 817 FRAUDULENT PRACTICES PART I FALSE PRETENSES AND FRAUDS , GENERALLY (ss . 817.011-817.569) PART II CREDIT CARD CRIMES (ss. 817.57-817.685) PART Ill CREDIT SERVICE ORGANIZATIONS (ss. 817 .7001-817.706) PART IV CREDIT COUNSELING SERVICES (ss . 817.801-817.806) PART I FALSE PRETENSES AND FRAUDS, GENERALLY 817.02 Obtaining property by false personation . 817.021 False information to obtain a seaport security identification card. 817.025 Home or private business invasion by false per sonation ; penalties. 817.03 Making false statement to obtain pro perty or credit. 817.031 Making false statements; v enue of prosecution . 817.032 Information available to identity theft v i ctims . 817.034 Florida Communications Fraud Ac t. 817 .037 Fraudulent refunds. 817 .05 Fal se statements to merchants as to f inancial condition. 817 .06 Misleading adv ertisements prohibited; penalty. 817.061 Misleading solicitation of pa y ments pro hibited . View Entire Chapter 817.08 Recei v ing money or prope rty upon false promises of se r v i ces as seaman or sp ong e fisher. 817.11 Obtaining property by fraudulent promise to furnish inside information. 5/24/20 16 3:26 PM RAS00000164 Statutes & Constitution :View Statutes : Online Sunshine http://www. leg.state.fl. us/Statutes/index.cfin? App _ mode~Display _Stat. .. 2 of62 817.14 Procuring assignments of produce upon false representations. 817.15 False entries in books of business entity. 817.155 Matters within jurisdiction of Department of State; false, fictitious, or fraudulent acts, statements, and representations prohibited; penalty; statute of limitations. 817.16 False reports, etc., by officers of banks, trust companies, etc., with intent to defraud. 817.17 Wrongful use of city, county, or other political subdivision name. 817.18 Wrongful marking with a city, county, or other political subdivision name. 817.19 Fraudulent issue of stock certificate or indicia of membership interest. 817.20 Issuing stock or obligation of corporation beyond authorized amount. 817.21 Books to be evidence in such cases. 817.22 Making false invoice to defraud insurer. 817.23 Making false affidavit to defraud insurer. 817.233 Burning to defraud the insurer. 817.234 False and fraudulent insurance claims. 817.2341 False or misleading statements or supporting documents; penalty. 817.235 Personal property; removing or altering identification marks. 817.236 False and fraudulent motor vehicle insurance application. 817.2361 False or fraudulent proof of motor vehicle insurance. 817.24 Unlawful to add or alter or deface existing brand. 817.25 Fraudulently marking or branding. 817.26 Fraudulently changing marks on animal. 817.28 Fraudulent obtaining of property by gaming. 817.29 Cheating. 817.30 Punishment for unlawful use of badge of certain orders and organizations. 817.31 Unlawful use of insignia of American Legion; penalty. 817.311 Unlawful use of badges, etc. 817.312 Unlawful use of uniforms, medals, or insignia. 817.32 Fraudulent operation of coin-operated devices. 817.33 Manufacture, etc., of slugs to be used in coin-operated devices prohibited. 817.34 False entries and statements by investment companies offering stock or security for sale. 817.35 Sale of cemetery lots or mausoleum space; promises. 817.355 Fraudulent creation or possession of admission ticket. 817.357 Purchase of tickets. 817.36 Resale of tickets. 817.361 Sale or transfer of multiuse tickets. 817.37 Touting; defining; providing punishment; ejection from racetracks. 817.38 Simulated process. 817.39 Simulated forms of court or legal process, or official seal or stationery; publication, sale or circulation unlawful; penalty. 817.40 False, misleading and deceptive advertising and sales; definitions. 817.41 Misleading advertising prohibited. 817.411 False information; advertising. 817.4115 False, deceptive, or misleading advertisement of live musical performances. 817.412 Sale of used goods as new; penalty. 817.413 Sale of used motor vehicle goods as new; penalty. 5/24/2016 3:26PM RAS00000165 Statutes & Constitution :View Statutes : Online Sunshine http: I lwww .leg.state. fl. us/Statutes/index. cfln? App _ mode~Display _Stat. .. 3 of62 817.414 Sale of counterfeit security signs and decals. 817.415 Florida Free Gift Advertising Law. 817.416 Franchises and distributorships; misrepresentations. 817.43 Exemption. 817.44 Intentional false advertising prohibited. 817.45 Penalty. 817.47 Insurance advertising exempt. 817.481 Credit or purchases; obtaining illicitly. 817.482 Possessing or transferring device for theft of telecommunications service; concealment of destination of telecommunications service. 817.4821 Cellular telephone counterfeiting offenses. 817.483 Transmission or publication of information regarding schemes, devices, means, or methods for theft of communication services. 817.484 Obtaining telephone calling records by fraudulent means prohibited. 817.487 Telephone caller identification systems. 817.49 False reports of commission of crimes; penalty. 817.50 Fraudulently obtaining goods or services from a health care provider; false reports of a communicable disease. 817.505 Patient brokering prohibited; exceptions; penalties. 817.51 Obtaining groceries, retail poultry, dairy, bakery, and other retail products; intent to defraud. 817.52 Obtaining vehicles with intent to defraud, failing to return hired vehicle, or tampering with mileage device of hired vehicle. 817.53 False charges for radio and television repairs and parts; penalty. 817.535 Unlawful filing of false documents or records against real or personal property. 817.54 Obtaining of mortgage, mortgage note, promissory note, etc., by false representation. 817.545 Mortgage fraud. 817.55 Tourist attraction advertisement; misleading use of the word "free." 817.554 Fraudulently offering for sale tour or travel-related services. 817.558 Water-treatment devices. 817.561 Violations may be enjoined. 817.5615 Marks required on optical discs; prohibited acts; penalties. 817.562 Fraud involving a security interest. 817.5621 Unlawful subleasing of a motor vehicle. 817.563 Controlled substance named or described ins. 893.03; sale of substance in lieu thereof. 817.564 Imitation controlled substances defined; possession and distribution prohibited. 817.565 Urine testing, fraudulent practices; penalties. 817.566 Misrepresentation of association with, or academic standing at, postsecondary educational institution. 817.568 Criminal use of personal identification information. 817.5685 Unlawful possession of the personal identification information of another person. 817.569 Criminal use of a public record or public records information; providing false information; penalties. 817.011 Definition.-As used in this chapter, the term "business entity" means any corporation, partnership, limited partnership, company, limited liability company, proprietorship, firm, enterprise, 5/24/2016 3:26 PM RAS00000166 S tatutes & Constituti on :View Statutes : Online Sunshine http:/ /www.leg .state . fl . us /Statutes/index.cfin? App _ mod e=Di splay_ Stat. .. 4 o f62 franchise, association , self-employed individual, or trust, w hether fictitiously named or not, doing business in thi s state. History.-s. 1, ch. 2015-166 . 817.02 Obtain i ng property by false personation.- (1) Wh oeve r falsely personates or represents another person , and in such assumed character: (a) Recei ves any property intend ed to be deliver ed t o t hat person, w ith intent t o conver t the same to hi s or her own use; or (b) To the extent not subject to s. 817.568, damages the cred it history or rating of, or otherwise causes harm to, the person whose id entity has been assumed through the t aking of property from any person, shall be punished as if he or she had been convicted of larceny. (2)(a) In sentenc ing a defendant co nvicted of a viol ati on of this section, in add ition to restitution to th e v ictim und er s. 775.089, the co urt may order restitution for the v i ctim's out-of-pocket cos ts , including attorney fees and fees associated with services provided by cer tified public accountants licensed und er chapter 473 , incurred by the v i cti m in clearing the v ictim 's credit history or credit rating, or costs incu rred in connection wi th a civil or administrative pro ceeding to satisfy a debt, li en, or other obligation of the v ictim arising as a result of the actions of the defend ant. (b) The se ntencing cou rt may issue suc h order s as are necessary to correct a public record that contains false information gi ven in vio lation of this sec tion. (3)(a) A v ictim of the conduct subject to this section shall have a ci v il cause of action against a perso n w ho has engage d in the condu ct prohibited by this secti on as prov ided in s. 772.11. (b) For purposes of this subsection, the term "victim" includes, t o the ext ent not already included within s. 817.568 , a perso n whose i dentity was falsely personated or w ho suffers a loss of pr ope rty as a result of t he false personation. Hi story.-s. 49, s u b-c h . 4 , ch. 1637, 1868; RS 2466 ; GS 3321; RGS 5156; CG L 7259; s. 1244, ch . 97-102 ; s. 2, c h. 2015-166. 817.021 False information to obtain a seaport secu r ity identification card.-A per so n w ho willfully and kn owing l y provi des false inform ation in obtaining or attemptin g to obtain a seaport sec urity identificati on ca rd co mmits a fe l ony of t he thi rd degr ee, punishable as provided in s. 775 .082 or s. 775.083. History.-s. 7 , ch. 2006-193 . 817.025 Home or private business invasion by false personation; penalties.-A person who obtain s access to a hom e or private business by f al se personation or repre se ntati on , with the intent to commit a felony, co mmits a felony of the seco nd de gr ee, punishable as provided ins. 775.082, s. 775.083, or s. 775 .084. If suc h act res ults in serio us injury or death, it is a felony of th e first degree, pu ni shable as provided in s. 775.082, s. 775 .083, or s. 775.084. Hi story.-s. 1, ch. 91 -133. 817.03 Making false statement to obtain property or credit.-Any person who shall make or cause t o be made any false statement, in writing, r elating t o hi s or her financial co ndition, assets or liabilities, or relating t o the financial co ndition, assets or liabilities of any firm or co r po ra tion in which suc h person has a fi nancia l interest, or for whom he or she i s acti ng, with a f r audu lent intent of obtaining credit, goods, money or ot her property, and shall by such fa l se st atement ob t ain cr ed it, goods, money or other property, sha ll be guilty of a misdemeanor of the first degree, punishable as prov ided in s. 775.082 or s. 5/24/2016 3:26 PM RAS00000167 Statutes & Constitution :View Statutes: Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index.cfin? App _mode~Display _Stat. .. 5 of62 775.083. History.-s.1, ch. 5134, 1903; RS 3322; s. 1, ch. 6869, 1915; RGS 5160; CGL 7263; s. 843, ch. 71-136; s.1245, ch. 97-102. 817.031 Making false statements; venue of prosecution.-Prosecutions under s. 817.03 may be begun in the county where the statement was written, or purports to have been written. History.-s. 2, ch. 5134, 1903; GS 3323; RGS 5161; CGL 7264. Note.-Former s. 817.04. 817.032 Information available to identity theft victims.- (1) DEFINITION.-As used in this section, the term "victim" means a person whose means of identification or financial information is used or transferred or is alleged to be used or transferred without the authority of that person with the intent to commit or to aid or abet an identity theft or a similar crime. (2) GENERALLY.- (a) For the purpose of documenting fraudulent transactions resulting from identity theft, within 30 days after the date of receipt of a request from a victim in accordance with subsection (4), and subject to verification of the identity of the victim and the claim of identity theft in accordance with subsection (3), a business entity that has provided credit to; provided for consideration products, goods, or services to; accepted payment from; or otherwise entered into a commercial transaction for consideration with, a person who has allegedly made unauthorized use of the means of identification of the victim, shall provide a copy of the application and business transaction records in the control of the business entity, whether maintained by the business entity or by another person on behalf of the business entity, evidencing any transaction alleged to be a result of identity theft to: 1. The victim; 2. A federal, state, or local government law enforcement agency, or officer specified by the victim in such a request; or 3. A law enforcement agency investigating the identity theft and authorized by the victim to take receipt of records provided under this section. (b) This subsection does not apply to a third-party providing a service to effect, administer, facilitate, process, or enforce a financial transaction initiated by an individual. (3) VERIFICATION OF IDENTITY AND CLAIM.-Before a business entity provides any information under subsection (2), unless the business entity, at its discretion, otherwise has a high degree of confidence that it knows the identity of the victim making a request under subsection (2), the victim shall provide to the business entity: (a) As proof of positive identification of the victim, at the election of the business entity: 1. The presentation of a government-issued identification card; 2. Personal identifyi.ng information of the same type as provided to the business entity by the unauthorized person; or 3. Personal identifying information that the business entity typically requests from new applicants or for new transactions, at the time of the victim's request for information, including any documentation described in subparagraphs 1. and 2. (b) As proof of a claim of identity theft: 1. A copy of a police report evidencing the claim of the victim of identity theft; and 2. A properly completed affidavit of fact that is acceptable to the business entity for that purpose. (4) PROCEDURES.-The request of a victim under subsection (2) shall: (a) Be in writing. 5/24/2016 3:26PM RAS00000168 Statutes & Constitution :View Statutes : OnJ ine Sunshine http :/ /www.leg.state . fl . us/Statutes / i ndex .c fin? App _ mode =Di splay _Stat. .. 6 of62 (b) Be mailed or delivered to an address specified by the business entity, if any. (c) If asked by the business entity, include relevant information about any transaction alleged to be a result of identity theft to facilitate compliance with this section, including: 1. If known by the victim or readily obtainable by the victim, the date of the application or transaction. 2. If known by the victim or readily obtainable by the victim, any other identifying information such as an account number or transaction number. (5) NO CHARGE TO VICTIM.-Information required to be provided under subsection (2) shall be provided without charge. (6) AUTHORITY TO DECLINE TO PROVIDE INFORMATION.-A business entity may decline to provide information under subsection (2) if, in the exercise of good faith, the business entity determines that: (a) This section does not require disclosure of the information; (b) After reviewing the information provided pursuant to subsection (3), the business entity does not have a high degree of confidence in knowing the true identity of the individual requesting the information; (c) The request for the information is based on a misrepresentati on of fact by the individual requesting the information; (d) The information requested is Internet navigational data or similar information about a person's visit to a website or online service; or (e) The disclosure is otherwise prohibited by state or federal law. (7) LI MITATION ON CIVI L LI ABILITY.-A business entity may not be held civilly liable in this state for a disclosure made in good faith pursuant to this section or a decision to decline to provide information as provided in subsec tion (6). (8) NO NEW RECORDKEEPING OBLIGATION.-This section does not create an obligation on the part of a business entity to obtain, retain, or maintain information or r ecords that are not otherwise required to be obtained, retained, or maintained in the ordinary course of its business or under other applicable law. (9) AFF IRMATIVE DEFENSE.-In any civil action brought to en force this section, it is an affirmative defense, which the defendant must establish by a preponderance of the evidence, for a busines s entity to file an affidavit or answer stating that: (a) The business entity has made a rea sonab ly diligent search of its available business records. (b) T he record s requested und er this section do not exist or are not rea sonab ly available. History.-s. 3, ch. 20 15 ·166. 817.034 Florida Communications Fraud Act.- (1) LEGISLATIVE INTENT.- (a) The Legislature recognizes that schemes to defraud have proliferated in the United States in recent years and that many operators of schemes to defraud use communications technology to solicit victims and thereby conceal· their identities and overcome a victim's normal resi stance to sales pressure by delivering a personalized sa les message. (b) It is the intent of the Legislature to prevent the use of communications technology in furtherance of schemes to defraud by consolidating former statutes concerni ng schemes to defraud and organized fraud to permit prosecution of these crimes utilizing the legal precedent available under federal mail and wire fraud statutes. (2) SHORT TITLE.-This secti on may be cited as the "Florida Communication s Fraud Act." (3) DEF INIT IONS.-As used in this section, the term: 5/24/2016 3:26 PM RAS00000169 Statute s & Const itution :View Statutes: Online Suns hin e http:/ /www.leg.s tate . fl.us /Statutes/ind ex .cfin? App _ mode =Di splay _Stat. .. 7 of62 (a) "Communicate" means to transmit or transfer or to cause another to transmit or transfer signs, signals, writing, images, sounds, data, or intelligences of any nature in whole or in part by mail, or by wire, radio, electromagnetic, photoelectronic, or photooptical system. (b) "Obtain" means temporarily or permanently to deprive any person of the right to property or a benefit therefrom, or to appropriate the property to one's own use or to the use of any other person not entitled thereto . (c) "Property" means anything of value, and includes: 1. Real property, including things growing on, affixed to, or found in land ; 2. Tangible or intangible personal property, including rights, privileges, interests , and claims; and 3. Services. (d) "Scheme to defraud" means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations , or promises or willful misrepresentations of a future act. (e) "Va lue " means value determined according to any of the following: 1.a. Th e market value of the property at the time and place of the offense, or, if such cannot be satisfactorily ascerta ined , the cost of replacement of the property within a rea sona ble time after the offense. b. The value of a written instrument that does not have a readily ascertainable market va lue, in the case of an instrument such as a check, draft, or promissory note, is the amount due or collectible or is, in the case of any other instrument which creates, releases, discharges, or otherwise affects any va luable legal right, privilege, or obligation, the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. c. The va lue of a trade secret that does not ha ve a readily ascertainable market va lue is any reasonable value representing the damage to the owner, suffered by reason of losing an advantage over those who do not know of or use the t ra de secret. 2. If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum va lue can be ascertained, the value is an amount less than $300. 3. Amounts of va lue of separate properties obtained in one scheme to defraud, whether from the same person or from several perso ns , shall be aggregated in determining the grade of the offense under paragraph (4)(a). (4) OFFENSES .- (a) Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud, punishable as follows : 1. If the amount of property obtained has an aggregate va lu e of $50,000 or more, the violator is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 2. If the amount of property obtained has an aggregate value of $20,000 or more, but less than $50,000, the violator is guilty of a felon y of the second degree, punishable as provided in s. 775.082, s. 775 .083, or s. 775.084. 3. If the amount of property obtained has an aggregate va lue of less than $20,000, the violator is guilty of a felony of the third degree, punishable as provided in s. 775 .082, s. 775.083, or s. 775.084 . (b) Any person who engages in a scheme to defraud and, in furtherance of that scheme, commun icates with any person with intent to obtain property from that person is guilty, for each such act of communication, of communications fraud, punishable as follows: 1. If the va lue of property obtained or endeavored to be obtained by the communication i s valued at 5/24/2016 3:26 PM RAS00000170 Statutes & Constitution :View Statutes : Online Sunshine http://www.leg. state. fl. us/Statll!es/index. cfin? App _ mode~Display _Stat. .. 8 of62 $300 or more, the violator is guilty of a third degree felony, punishable as set forth ins. 775.082, s. 775.083, or s. 775.084. 2. If the value of the property obtained or endeavored to be obtained by the communication is valued at less than $300, the violator is guilty of a misdemeanor of the first degree, punishable as set forth ins. 775.082 or s. 775.083. (c) Notwithstanding any contrary provisions of law, separate judgments and sentences for organized fraud under paragraph (a) and for each offense of communications fraud under paragraph (b) may be imposed when all such offenses involve the same scheme to defraud. (d) Notwithstanding any other provision of law, a criminal action or civil action or proceeding under this section may be commenced at any time within 5 years after the cause of action accrues; however, in a criminal proceeding under this section, the period of limitation does not run during any time when the defendant is continuously absent from the state or is without a reasonably ascertainable place of abode or work within the state, but in no case shall this extend the period of limitation otherwise applicable by more than 1 year. History.-s. 1, ch, 87·382; s. 1, ch. 2013-208, 817.037 Fraudulent refunds.- (1) Any person who engages in a systematic, ongoing course of conduct to obtain a refund for merchandise from a business establishment by knowingly giving a false or fictitious name or address as his or her own or the name or address of any other person without that person's knowledge and approval is guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. (2) In order for a person to be convicted under this section, a conspicuous notice must have been posted in the business establishment in the area where refunds are made, advising patrons of the provisions of this section and the penalties provided. History.-s. 3, ch. 86-161; s. 193, ch, 91-224; s. 1246, ch. 97-102. 817.05 False statements to merchants as to financial condition.-Any merchant in the state, before extending credit to any person applying for the same, may require such applicant to furnish a statement in writing showing the property owned and the salary being earned by said applicant, and if said statement, or any part thereof, is false, provided the same be made willfully, and signed by applicant in presence of two witnesses, and any person obtains credit from any merchant by reason of the merchant relying on and being deceived by said false statement, or any part thereof, then said person so obtaining credit or goods shall be deemed guilty of obtaining money or goods under false pretenses and shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. History,-s. 1, ch. 19487, 1939; CGL 1940 Supp. 7264(1); s. 844, ch. 71-136. 817.06 Misleading advertisements prohibited; penalty.- (1) No person, persons, association, copartnership, or institution shall, with intent to offer or sell or in anywise dispose of merchandise, securities, certificates, diplomas, documents, or other credentials purporting to reflect proficiency in any trade, skill, profession, credits for academic achievement, service or anything offered by such person, persons, association, copartnership, corporation, or institution directly or indirectly, to the public, for sale or distribution or issuance, or with intent to increase the consumption or use thereof, or with intent to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest therein, or ownership thereof, knowingly or intentionally make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated or circulated or placed before the public in this state in a 5/24/2016 3:26PM RAS00000171 Statutes & Constitution :View Statntes : Online Sunshine http:/ /www.leg. state.fl. us/Statutes/index.cfln? App _ mode~Disp lay_ Stat. .. 9 of62 newspaper or other publication or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding such certificate, diploma, document, credential, academic credits, merchandise, security, service or anything so offered to the public, which advertisement contains any assertion, representation or statement which is untrue, deceptive, or misleading. (2) Any person, persons, association, copartnership, corporation, or institution found guilty of a violation of subsection (1) shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. History.-ss.1, 2, ch.11827, 1927; CGL 7311, 7312; ss.1, 2, ch. 57-410; s. 846, ch, 71-136. Note.-Former s. 817.07. 817.061 Misleading solicitation of payments prohibited.- (1) It is unlawful for any person, company, corporation, agency, association, partnership, institution, or charitable entity to solicit payment of money by another by means of a statement or invoice, or any writing that would reasonably be interpreted as a statement or invoice, for goods not yet ordered or for services not yet performed and not yet ordered, unless there appears on the face of the statement or invoice or writing in 30-point boldfaced type the following warning: "This is a solicitation for the order of goods or services, and you are under no obligation to make payment unless you accept the offer contained herein." (2) Any person damaged by noncompliance with this section, in addition to other remedies, is entitled to damages in the amount equal to 3 times the sum solicited. (3) Any person, company, corporation, agency, association, partnership, institution, or charitable entity that violates this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083. History,-ss. 1, 2, ch. 69-246; s. 845, ch, 71-136. 817.08 Receiving money or property upon false promises of services as seaman or sponge fisher.-Whoever enters into a written agreement with any master or owner of a vessel to perform certain services upon said vessel as seaman or sponge fisher for a contemplated voyage, and receives or accepts any money or goods, wares or merchandise, as advances or bounty for the performance of said services, and shall willfully and without just cause refuse to perform said services, or to go on said vessel at the time of the sailing of the same, shall be guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. History.-s. 1, ch. 5161, 1903; GS 3324; RGS 5162; CGL 7265; s. 847, ch. 71-136; s.1247, ch. 97-102. 817.11 Obtaining property by fraudulent promise to furnish inside information.- (1) A person may not defraud or attempt to defraud any individual out of anything of value by assuming to have or be able to obtain any secret, advance or inside information regarding any person, transaction, act or thing, whether such person, transaction, act or thing exists or not. (2) A person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (3) All paraphernalia of whatsoever kind in possession of any person and used in defrauding or attempting to defraud as specified in this section shall be held and accepted by any court of competent jurisdiction in this state as prima facie evidence of guilt. History.-ss. 1, 2, 3, ch. 8466, 1921; CGL 7308,7309, 7310; s. 848, ch. 71-136; s. 4, ch. 2015-166. Note.-Subsection (2) formers. 817.12; subsection (3) formers. 817.13. 5/24/2016 3:26PM RAS00000172 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index.cfm? App _ mode~Disp lay_ Stat. .. 10 of62 817.14 Procuring assignments of produce upon false representations.-A person acting for himself or herself or another person, who shall procure any consignment of produce grown in this state, to himself or herself or such other, for sale on commission or for other compensation by any knowingly false representation as to the prevailing market price at such time for such produce at the point to which it is consigned, or as to the price which such person for whom he or she is acting is at said time paying to other consignors for like produce at said place, or as to the condition of the market for such produce at such time and place, and any such person acting for another who shall procure any consignment for sale as aforesaid by false representation of authority to him or her by such other to make a guaranteed price to the consignor, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s, 775.083. History.-5.1, ch. 5141, 1903; GS 3325; RGS 5163; CGL 7266; 5. 849, ch. 71-136; 5.1248, ch, 97-102; 5. 5, ch, 2015-166, 817.15 False entries in books of business entity.-Any officer, agent, clerk or servant of a business entity who makes a false entry in the books thereof, with intent to defraud, and any person whose duty it is to make in such books a record or entry of the transfer of stock, or of the issuing and canceling of certificates thereof, or of the amount of stock issued by such business entity, who omits to make a true record or entry thereof, with intent to defraud, commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History,-5, 47, ch, 1637, 1868; RS 2467; GS 3326; RGS 5164; CGL 7267; 5, 850, ch. 71-136; 5. 6, ch. 2015-166. 817.155 Matters within jurisdiction of Department of State; false, fictitious, or fraudulent acts, statements, and representations prohibited; penalty; statute of limitations.-A person may not, in any matter within the jurisdiction of the Department of State, knowingly and willfully falsify or conceal a material fact, make any false, fictitious, or fraudulent statement or representation, or make or use any false document, knowing the same to contain any false, fictitious, or fraudulent statement or entry. A person who violates this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The statute of limitations for prosecution of an act committed in violation of this section is 5 years from the date the act was committed. Hi5tory.-5. 52, ch, 87-99; 5. 194, ch. 91·224; 5. 26, ch. 2005-267. 817.16 False reports, etc., by officers of banks, trust companies, etc., with intent to defraud.-Any officer, director, agent or clerk of any bank, trust company, building and loan association, small loan licensee, credit union, or other corporation under the supervision of the Office of Financial Regulation of the Financial Services Commission or formerly the Department of Banking and Finance, who willfully and knowingly subscribes or exhibits any false paper with intent to deceive any person authorized to examine as to the records of such bank, trust company, building and loan association, small loan licensee, credit union, or other corporation under the supervision of the Office of Financial Regulation or formerly the Department of Banking and Finance, or willfully and knowingly subscribes to or makes any false reports to the Office of Financial Regulation or subscribed to or made any such false report to the Department of Banking and Finance or causes to be published any false report, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. Hi5tory.-5. 1, ch, 15876, 1933; CGL 1936 Supp. 7315(1); 55, 12, 35, ch. 69·106; 5. 851, ch. 71-136; 5.1908, ch. 2003-261. 817.17 Wrongful use of city, county, or other political subdivision name.- (1) A person or persons engaged in manufacturing in this state may not cause to be printed, stamped, marked, engraved or branded, upon any of the articles manufactured by them, or on any of the boxes, packages, or bands containing such manufactured articles, the name of any city, county, or other political 5/24/2016 3:26PM RAS00000173 Statutes & Constitution :View Statutes : Online Sunshine http: //www.leg. state.fl. us/Statutes/index. cfln? App _ mode~Display _Stat. .. II of62 subdivision of the state, other than that in which said articles are manufactured; provided, that this section does not prohibit any person from offering for sale any goods having marked thereon the name of any city, county, or other political subdivision of the state other than that in which said goods were manufactured, if there be no manufactory of similar goods in the city, county, or other political subdivision the name of which is used. (2) A person violating this section commits a misdemeanor of the second degree, punishable as provided in s. 775.083. Hlstory.-s. 1, ch. 4145, 1893; GS 3327; RGS 5167; CGL 7270; s. 7, ch. 2015-166. 817.18 Wrongful marking with a city, county, or other political subdivision name.- (1) A person may not knowingly sell or offer for sale, within the state, any manufactured articles which shall have printed, stamped, marked, engraved, or branded upon them, or upon the boxes, packages, or bands containing said manufactured articles, the name of any city, county, or other political subdivision of the state, other than that in which such articles were manufactured; provided, that this section does not prohibit any person from offering for sale any goods, having marked thereon the name of any city, county, or other political subdivision of the state, other than that in which said goods are manufactured, if there be no manufactory of similar goods in the city, county, or other political subdivision the name of which is used. (2) A person violating this section commits a misdemeanor of the second degree, punishable as provided ins. 775.083. History.-s. 2, ch. 4145, 1893; GS 3328; RGS 5168; CGL 7271; s. 852, ch. 71-136; s. 8, ch. 2015-166. 817.19 Fraudulent issue of stock certificate or indicia of membership interest.-Any officer, agent, clerk or servant of a corporation, or any other person, who fraudulently issues or transfers a certificate of stock of a corporation or indicia of a membership interest in a limited liability company to any person not entitled thereto, or fraudulently signs such certificate or other indicia of membership interest, in blank or otherwise, with the intent that it shall be so issued or transferred by himself or herself or any other person, commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 46, ch. 1637, 1868; RS 2468; GS 3329; RGS 5169; CGL 7272; s. 853, ch. 71-136; s. 1249, ch. 97-102; s. 9, ch. 2015-166. 817.20 Issuing stock or obligation of corporation beyond authorized amount.-Any officer, agent, clerk or servant of a corporation, or any other person, who issues, or signs with intent to issue, any certificate of stock in a corporation, or who issues, signs or endorses with intent to issue any bond, note, bill or other obligation or security in the name of such corporation, beyond the amount authorized by law, or limited by the legal votes of such corporation or its proper officers; or negotiates, transfers or disposes of such certificate, with intent to defraud, shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 45, ch. 1637, 1868; RS 2469; GS 3330; RGS 5170; CGL 7273; s. 854, ch. 71-136. 817.21 Books to be evidence in such cases.-On the trial of any person under ss. 817.19 and 817.20 the books of any corporation to which such person has access or the right of access shall be admissible in evidence. Hlstory.-s. 48, ch. 1637, 1868; RS 2470; GS 3331; RGS 5171; CGL 7274. 817.22 Making false invoice to defraud insurer.-If the owner of a ship or vessel or of property laden or pretended to be laden on board the same, or if any other person concerned in the lading or 5/24/2016 3:26 PM RAS00000174 Statutes & Constitution :View Statutes : Online Sunshine http://www.leg.state. fl. us/Statutes/index.cfm? App _ mode~Display _Stat. .. 12 of62 fitting out of a ship or vessel, makes out or exhibits, or causes to be made out or exhibited, a false or fraudulent invoice, bill of lading, bill or parcels or other false estimates of any goods or property laden or pretended to be laden, on board such ship or vessel, with intent to injure and defraud an insurer of such ship, vessel or property, or of any part thereof, he or she shall be guilty of a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 72, ch. 1637, 1868; RS 2471; GS 3332; RGS 5172; CGL 7275; s. 7, ch. 22858, 1945; s. 855, ch. 71-136; s. 1250, ch. 97-102. 817.23 Making false affidavit to defraud insurer.-If a master, other officer, or mariner of a ship or vessel, makes or causes to be made, or swears to any false affidavit or protest, or if an owner or other person concerned in such ship or vessel or in the goods and property laden on board the same, procures any such false affidavits or protest to be made, or exhibits the same, with intent to injure, deceive or defraud an insurer of such ship or vessel, or of any goods or property laden on board the same, he or she shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 73, ch. 1637, 1868; RS 2472; GS 3333; RGS 5173; CGL 7276; s. 856, ch. 71-136; s. 1251, ch. 97-102. 817.233 Burning to defraud the insurer.-Any person who willfully and with intent to injure or defraud the insurer sets fire to or burns or attempts so to do or who causes to be burned or who aids, counsels or procures the burning of any building, structure or personal property, of whatsoever class or character, whether the property of himself or herself or of another, which shall at the time be insured by any person against loss or damage by fire, shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 1, ch. 15602, 1931; CGL 1936 Supp. 7208(12); s. 791, ch. 71-136; s. 65, ch. 74-383; s.1252, ch. 97-102. Note.-Former s. 806.06. 817.234 False and fraudulent insurance claims.- (1 )(a) A person commits insurance fraud punishable as provided in subsection (11) if that person, with the intent to injure, defraud, or deceive any insurer: 1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; 2. Prepares or makes any written or oral statement that is intended to be presented to any insurer in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; 3.a. Knowingly presents, causes to be presented, or prepares or makes with knowledge or belief that it will be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of, or in support of, an application for the issuance of, or the rating of, any insurance policy, or a health maintenance organization subscriber or provider contract; or b. Knowingly conceals information concerning any fact material to such application; or 4. Knowingly presents, causes to be presented, or prepares or makes with knowledge or belief that it will be presented to any insurer a claim for payment or other benefit under a personal injury protection insurance policy if the person knows that the payee knowingly submitted a false, misleading, or fraudulent 5/24/2016 3:26PM RAS00000175 Statutes & Constitution :View Statutes: Online Sunshine http ://www.l eg.state. fl. us/Statutes/index.cfrn? App _ mode~Display _Stat. .. 13 of62 application or other document when applying for licensure as a health care clinic, seeking an exemption from licensure as a health care clinic, or demonstrating compliance with part X of chapter 400. (b) All claims and application forms must contain a statement that is approved by the Office of Insurance Regulation of the Financial Services Commission which clearly states in substance the following: "Any person who knowingly and with intent to injure, defraud, or deceive any insurer files a statement of claim or an application containing any false, incomplete, or misleading information is guilty of a felony of the third degree." This paragraph does not apply to reinsurance contracts, reinsurance agreements, or reinsurance claims transactions. (2)(a) Any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, or other practitioner licensed under the laws of this state who knowingly and willfully assists, conspires with, or urges any insured party to fraudulently violate any of the provisions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging by said physician, osteopathic physician, chiropractic physician, or practitioner, knowingly and willfully benefits from the proceeds derived from the use of such fraud, commits insurance fraud, punishable as provided in subsection (11 ). In the event that a physician, osteopathic physician, chiropractic physician, or practitioner is adjudicated guilty of a violation of this section, the Board of Medicine as set forth in chapter 458, the Board of Osteopathic Medicine as set forth in chapter 459, the Board of Chiropractic Medicine as set forth in chapter 460, or other appropriate licensing authority shall hold an administrative hearing to consider the imposition of administrative sanctions as provided by law against said physician, osteopathic physician, chiropractic physician, or practitioner. (b) In addition to any other provision of law, systematic upcoding by a provider, as defined ins. 641.19(14), with the intent to obtain reimbursement otherwise not due from an insurer is punishable as provided ins. 641.52(5). (3) Any attorney who knowingly and willfully assists, conspires with, or urges any claimant to fraudulently violate any of the provisions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging on such attorney's part, knowingly and willfully benefits from the proceeds derived from the use of such fraud, commits insurance fraud, punishable as provided in subsection (11 ). (4) Any person or governmental unit licensed under chapter 395 to maintain or operate a hospital, and any administrator or employee of any such hospital, who knowingly and willfully allows the use of the facilities of said hospital by an insured party in a scheme or conspiracy to fraudulently violate any of the provisions of this section or part XI of chapter 627 commits insurance fraud, punishable as provided in subsection (11 ). Any adjudication of guilt for a violation of this subsection, or the use of business practices demonstrating a pattern indicating that the spirit of the law set forth in this section or part XI of chapter 627 is not being followed, shall be grounds for suspension or revocation of the license to operate the hospital or the imposition of an administrative penalty of up to $5,000 by the licensing agency, as set forth in chapter 395. (5) Any insurer damaged as a result of a violation of any provision of this section when there has been a criminal adjudication of guilt shall have a cause of action to recover compensatory damages, plus all reasonable investigation and litigation expenses, including attorneys' fees, at the trial and appellate courts. (6) For the purposes of this section, "statement" includes, but is not limited to, any notice, statement, proof of loss, bill of lading, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or doctor records, X ray, test result, or other evidence of loss, injury, or expense. 5/24/2016 3:26PM RAS00000176 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/Statutes/ index. cfln? App _mode~ Display_ Stat. .. 14 of62 (7)(a) It shall constitute a material omission and insurance fraud, punishable as provided in subsection (11), for any service provider, other than a hospital, to engage in a general business practice of billing amounts as its usual and customary charge, if such provider has agreed with the insured or intends to waive deductibles or co payments, or does not for any other reason intend to collect the total amount of such charge. With respect to a determination as to whether a service provider has engaged in such general business practice, consideration shall be given to evidence of whether the physician or other provider made a good faith attempt to collect such deductible or copayment. This paragraph does not apply to physicians or other providers who waive deductibles or co payments or reduce their bills as part of a bodily injury settlement or verdict. (b) The provisions of this section shall also apply as to any insurer or adjusting firm or its agents or representatives who, with intent, injure, defraud, or deceive any claimant with regard to any claim. The claimant shall have the right to recover the damages provided in this section. (c) An insurer, or any person acting at the direction of or on behalf of an insurer, may not change an opinion in a mental or physical report prepared under s. 627. 736(7) or direct the physician preparing the report to change such opinion; however, this provision does not preclude the insurer from calling to the attention of the physician errors of fact in the report based upon information in the claim file. Any person who violates this paragraph commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (d) A contractor, or a person acting on behalf of a contractor, may not knowingly or willfully and with intent to injure, defraud, or deceive, pay, waive, or rebate all or part of an insurance deductible applicable to payment to the contractor, or a person acting on behalf of a contractor, for repairs to property covered by a property insurance policy. A person who violates this paragraph commits a third degree felony, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (8)(a) It is unlawful for any person intending to defraud any other person to solicit or cause to be solicited any business from a person involved in a motor vehicle accident for the purpose of making, adjusting, or settling motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736. Any person who violates the provisions of this paragraph commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person who is convicted of a violation of this subsection shall be sentenced to a minimum term of imprisonment of 2 years. (b) A person may not solicit or cause to be solicited any business from a person involved in a motor vehicle accident by any means of communication other than advertising directed to the public for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736, within 60 days after the occurrence of the motor vehicle accident. Any person who violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) A lawyer, health care practitioner as defined ins. 456.001, or owner or medical director of a clinic required to be licensed pursuant to s. 400.9905 may not, at any time after 60 days have elapsed from the occurrence of a motor vehicle accident, solicit or cause to be solicited any business from a person involved in a motor vehicle accident by means of in person or telephone contact at the person's residence, for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736. Any person who violates this paragraph commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (d) Charges for any services rendered by any person who violates this subsection in regard to the person for whom such services were rendered are noncompensable and unenforceable as a matter of law. (9) A person may not organize, plan, or knowingly participate in an intentional motor vehicle crash or 5/24/2016 3:26PM RAS00000177 Statutes & Constitution :View Statutes : Online Sunshine http://www.leg.state.fl. us/Statutes/index.cfm? App _mode~Display _Stat. .. 15 of62 a scheme to create documentation of a motor vehicle crash that did not occur for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits as required by s. 627.736. Any person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person who is convicted of a violation of this subsection shall be sentenced to a minimum term of imprisonment of 2 years. (10) A licensed health care practitioner who is found guilty of insurance fraud under this section for an act relating to a personal injury protection insurance policy loses his or her license to practice for 5 years and may not receive reimbursement for personal injury protection benefits for 10 years. (11) If the value of any property involved in a violation of this section: (a) Is less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) Is $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) Is $100,000 or more, the offender commits a felony of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (12) In addition to any criminal liability, a person convicted of violating any provision of this section for the purpose of receiving insurance proceeds from a motor vehicle insurance contract is subject to a civil penalty. (a) Except for a violation of subsection (9), the civil penalty shall be: 1. A fine up to $5,000 for a first offense. 2. A fine greater than $5,000, but not to exceed $10,000, for a second offense. 3. A fine greater than $10,000, but not to exceed $15,000, for a third or subsequent offense. (b) The civil penalty for a violation of subsection (9) must be at least $15,000 but may not exceed $50,000. (c) The civil penalty shall be paid to the Insurance Regulatory Trust Fund within the Department of Financial Services and used by the department for the investigation and prosecution of insurance fraud. (d) This subsection does not prohibit a state attorney from entering into a written agreement in which the person charged with the violation does not admit to or deny the charges but consents to payment of the civil penalty. (13) As used in this section, the term: (a) "Insurer" means any insurer, health maintenance organization, self-insurer, self-insurance fund, or similar entity or person regulated under chapter 440 or chapter 641 or by the Office of Insurance Regulation under the Florida Insurance Code. (b) "Property" means property as defined ins. 812.012. (c) "Value" means value as defined ins. 812.012. History.-5. 7, ch. 76-266; s. 36, ch. 77·468; s. 3, ch. 78·258; 5.1, ch. 79-81; 5. 487, ch. 81·259; s. 9, ch. 83·28; s. 24, ch. 88·370; s. 41, ch. 91·110; s. 123, ch. 92·149; 5. 8, ch. 95·340; s. 1253, ch. 97·102; s. 65, ch. 97-264; 5, 298, ch. 98·166; 5. 6, ch. 99·204; s. 11, ch. 2000·252; s. 7, ch. 2001·271; s. 1909, ch. 2003·261; s. 10, ch. 2003·411; s.16, ch. 2006·305; s. 19, ch. 2011-174; 5.13, ch. 2012·197; 5. 110, ch. 2013·15; 5. 7, ch. 2014·104. Note.-Former s. 627.7375. 817.2341 False or misleading statements or supporting documents; penalty.- (1) Any person who willfully files with the department or office, or who willfully signs for filing with the department or office, a materially false or materially misleading financial statement or document in support of such statement required by law or rule, with intent to deceive and with knowledge that the statement or document is materially false or materially misleading, commits a felony of the third degree, 5/24/2016 3 :26 PM RAS00000178 Statutes & Constitution :View Statutes: Online Sunshine http: //www.leg.state.fl.us/Statutes/index. cfin? App _ mode~Display _Stat. .. 16 of62 punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2)(a) Any person who makes a false entry of a material fact in any book, report, or statement relating to a transaction of an insurer or entity organized pursuant to chapter 624 or chapter 641, intending to deceive any person about the financial condition or solvency of the insurer or entity, commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (b) If the false entry of a material fact is made with the intent to deceive any person as to the impairment of capital, as defined in s. 631.011 (1 2), of the insurer or entity or is the significant cause of the insurer or entity being placed in conservation, rehabilitation, or liquidation by a court, the person commits a felony of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (3)(a) Any person who knowingly makes a material false statement or report to the department or office or any agent of the department or office, or knowingly and materially overvalues any property in any document or report prepared to be presented to the department or office or any agent of the department or office, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) If the material false statement or report or the material overvaluation is made with the intent to deceive any person as to the impairment of capital, as defined in s. 631.011 (12), of an insurer or entity organized pursuant to chapter 624 or chapter 641, or is the significant cause of the insurer or entity being placed in receivership by a court, the person commits a felony of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (4) As used in this section, the term: (a) "Department" means the Department of Financial Services. (b) "Office" means the Office of Insurance Regulation of the Financial Services Commission. History,-s.18, ch. 2002-25; s. 1910, ch. 2003-261. 817.235 Personal property; removing or altering identification marks.- (1) Except as otherwise provided by law, any person who, with intent to prevent identification by the true owner, removes, erases, defaces, or otherwise alters any serial number or other mark of identification placed on any item of personal property by the manufacturer or owner thereof is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (2) Any person who possesses any item of personal property with the knowledge that the serial number or other mark of identification placed thereon by the manufacturer or owner thereof has been removed, erased, defaced, or otherwise altered with intent to prevent identification by the true owner is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. History.-s. 1, ch. 74-6. 817.236 False and fraudulent motor vehicle insurance application.-Any person who, with intent to injure, defraud, or deceive any motor vehicle insurer, including any statutorily created underwriting association or pool of motor vehicle insurers, presents or causes to be presented any written application, or written statement in support thereof, for motor vehicle insurance knowing that the application or statement contains any false, incomplete, or misleading information concerning any fact or matter material to the application commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 49, ch. 90-119; s. 11, ch. 2003-411. 817.2361 False or fraudulent proof of motor vehicle insurance.-Any person who, with intent to deceive any other person, creates, markets, or presents a false or fraudulent proof of motor vehicle 5/24/2016 3:26PM RAS00000179 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.l eg.state. fl .us /Statutes/i 17 of62 insurance commits a felony of the third degree, punishable as provided in s. 775.082, s. ·. 775 .084. History.-s. 12 , ch. 2003-411; s. 17, ch. 2006 -3 05. 817.24 Unlawful to add or alter or deface existing brand.-It is unlawful for anyot alter or deface any existing brand on any animal not his or her own or without the co nsent with a fraudulent intent to claim the same, any bar, letter, figure, or character of any kind of this section shall be a felony of the third degree , punishable as provided in s. 775.082, s ....... voj, or s. 775.084 . History.-ss. 1, 3, ch. 4734, 1899 ; GS 3334; RG S 5174; CGL 7277; s. 857, ch . 71-136; s. 1254, ch . 97-102. 817.25 Fraudulently marking or branding.-Whoever shall fraudulently mark or brand any unmarked or unbranded animal with the intent to claim the same or to prevent identification by the true owner or owners thereof, shall be punished as provided ins. 817.24. History.-s. 4, ch . 4734 , 1899; GS 3335 ; RGS 5175 ; CGL 7278. 817.26 Fraudulently changing marks on animal.-If any person shall fraudulently alter or change the marks of any animal, not his or her own, with intent to claim the same or to prevent identification by the true owner thereof, the person so offending shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. History.-s. 1, ch. 5663, 1907; RGS 5176; CGL 7279; s. 858, ch. 71-136; s. 1255, ch. 97·102. 817.28 Fraudulent obtaining of property by gaming.-Whoever, by the game of three-ca rd monte, so-called, or any other game, device, sleight-of-hand, pretensions to fortunetelling, or other means whatever by the use of cards or other implement or implements, fraudulently obtains from another person property of any description, shall be punished as if he or she had been convicted of larceny. History.-s. 53 , ch. 1637, 1868; RS 2473; GS 3343; RGS 5186 ; CGL 7289 ; s. 1256 , ch. 97-102 . 817.29 Cheating.-Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided in s. 775 .082 , s. 775 .083, or s. 775.084 . History.-s . 54, ch. 1637, 1868; RS 2475 ; GS 3344; RGS 5187; CGL 7290; s. 860, ch. 71-136 . 817.30 Punishment for unlawful use of badge of certain orders and organizations.-Any person who willfully wears the badge or button of the Grand Army of the Republic, the insignia, badge or rosette of the Military Order of the Loyal Legion of the United States, or of the Military Order of Foreign Wars of the United States, or of the Patrons of Husbandry, or the Benevolent and Protective Order of Elk s of the United States of America, or of the Woodmen of the World, or of any society, order or organization of 5 years' standing in the state, or uses the same to obtain aid or assistance within this state, or willfully uses the name of such society, order or organization, the titles of its officers, or its insignia, ritual or ceremonies, unless entitled to use or wear the same under the constitution and bylaws, rules and regulations of such order or of such society, order or organization, is guilty of a misdemeanor of the second degree, punishable as provi ded in s. 775.082 or s. 775.083. History.-s. 1, ch. 6502 , 1913; RGS 5197 ; CGL 7300 ; s. 862, ch. 7 1-136. 817.31 Unlawful use of insignia of American Legion; penalty.-Any person w ho w illfully wears the badge , button or other insignia of the American Legion shall be guilty of a misdemeanor of the second degree, punishable as prov ided in s. 775.082 or s. 775.083; provided, that the provisions of this sect ion shall not apply to any member of the American Legion. History.-s. 1, ch . 8464, 1921; CGL 7301; s. 861 , ch. 71-136. 5/24 /2016 3:26PM RAS00000180 Statutes & Constitution :View Statutes: Online Sunshine http://www .leg.state. fl. us/Statutes/index.cfin? App _mode~Display _Stat. .. 18of62 817.311 Unlawful use of badges, etc.- (1) From and after May 9, 1949, any person who shall wear or display a badge, button, insignia or other emblem, or shall use the name of or claim to be a member of any benevolent, fraternal, social, humane, or charitable organization, which organization is entitled to the exclusive use of such name and such badge, button, insignia or emblem either in the identical form or in such near resemblance thereto as to be a colorable imitation thereof, unless such person is entitled so to do under the laws, rules and regulations of such organization, shall be guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. (2) This section shall be cumulative to any and all laws now in force in the state. Hfstory.-s. 1, ch. 25025, 1949; s. 863, ch. 71-136. 817.312 Unlawful use of uniforms, medals, or insignia.- (1) A person may not misrepresent himself or herself as a member or veteran of the United States Air Force, United States Army, United States Coast Guard, United States Marine Corps, United States Navy, or National Guard or wear the uniform of or any medal or insignia authorized for use by members or veterans of the United States Air Force, United States Army, United States Coast Guard, United States Marine Corps, United States Navy, or the National Guard which he or she is not authorized to wear while soliciting for charitable contributions or for the purpose of material gain. This section does not prohibit persons in the theatrical profession from wearing such uniforms, medals, or insignia while actually engaged in such profession. (2) A person who violates subsection (1) commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 2, ch. 2010-181; s. 2, ch. 2013-126. 817.32 Fraudulent operation of coin-operated devices.-Any person who shall operate or cause to be operated, or who shall attempt to operate, or attempt to cause to be operated, any automatic vending machine, slot machine, coin box telephone, or other receptacle designed to receive lawful coin of the United States in connection with the sale, use or enjoyment of property or service, by means of a slug or any false, counterfeited, mutilated, sweated, or foreign coin, or by any means, method, trick, or device whatsoever not lawfully authorized by the owner, lessee, or licensee of such machine, coinbox telephone or receptacle, or who shall take, obtain or receive from or in connection with any automatic vending machine, slot machine, coin box telephone or other receptacle designed to receive lawful coin of the United States in connection with the sale, use, or enjoyment of property or service, any goods, wares, merchandise, gas, electric current, article of value, or the use or enjoyment of any telephone or telegraph facilities or service, or of any musical instrument, phonograph, or other property, without depositing in and surrendering to such machine, coinbox telephone or receptacle lawful coin of the United States to the amount required therefor by the owner, lessee, or licensee of such machine, coin box telephone or receptacle, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. History.-s. 1, ch. 12267, 1927; CGL 7313; s. 864, ch. 71-136. 817,33 Manufacture, etc., of slugs to be used in coin-operated devices prohibited.-Any person who, with intent to cheat or defraud the owner, lessee, licensee, or other person entitled to the contents of any automatic vending machine, slot machine, coin box telephone or other receptacle, depository, or contrivance designed to receive lawful coin of the United States in connection with the sale, use, or enjoyment of property or service, or who, knowing that the same is intended for unlawful use, shall 5/24/2016 3:26 PM RAS00000181 Statutes & Constitution :View Statutes: Online Sunshine http://www. l eg.state.fl. us/Statutes/index.cfin? App _ mode~Display _Stat. .. 19 of62 manufacture for sale, or sell or give away any slug, device or substance whatsoever intended or calculated to be placed or deposited in any such automatic vending machine, slot machine, coinbox telephone or other such receptacle, depository or contrivance, shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. History.-s. 2, ch. 12267, 1927; CGL 7314; s. 865, ch. 71-136. 817.34 False entries and statements by investment companies offering stock or security for sale.-Any person who shall knowingly subscribe to or make or cause to be made, any false statements or false entry in any book of any investment company or exhibit any false paper with the intention of deceiving any person authorized to examine into the affairs of any investment company, or shall make, utter or publish any false statement of the financial condition of any investment company, or the stock, bonds or other securities by it offered for sale, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. History.-s. 9, ch. 6422, 1913; RGS 5748; CGL 7975; s, 866, ch. 71-136. 817.35 Sale of cemetery lots or mausoleum space; promises.- (1) It shall be unlawful for any person, firm or corporation, to sell, offer for sale, or advertise for sale, cemetery lots or mausoleum space, upon the guarantee, promise, representation or inducement to the purchaser that the same may be sold or repurchased at a financial profit. (2) Any violation of this section shall constitute a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. History.-ss. 1, 2, ch. 22080, 1943; s. 7B, ch. 24337, 1947; s. 867, ch. 71·136. 817.355 Fraudulent creation or possession of admission ticket.- (1) Except as provided in subsections (2) and (3), a person who counterfeits, forges, alters, clones, or possesses a ticket, card, wristband, or other medium that accesses or is associated with a ticket; or a ticket, token, or paper designed for admission to or the rendering of services by a sports, amusement, concert, or other facility offering services to the general public, with the intent to defraud such facility, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (2) A person who commits a second or subsequent violation of subsection (1) commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (3) A person who counterfeits, forges, alters, clones, or possesses 10 or more tickets, cards, wristbands, or other media that access or are associated with a ticket, token, or paper designed for admission to or the rendering of services by a sports, amusement, concert, or other facility offering services to the general public with the intent to defraud such facility, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. History.-s.1, ch. 84-297; s. 195, ch. 91-224; s, 1, ch. 2014-95. 817.357 Purchase of tickets.-Whoever knowingly purchases from the original ticket seller a quantity of tickets to an event which exceeds the maximum ticket limit quantity posted by or on behalf of the original ticket seller at the point of original sale or printed on the tickets themselves and intends to resell such tickets violates ss. 501.201-501.213, the Florida Deceptive and Unfair Trade Practices Act. A person or firm is not liable under this section with respect to tickets for which that person or firm is the original ticket seller. For purposes of this section, the term "original ticket seller" means the issuer of such ticket or a person or firm who provides distribution services or ticket sales services under a contract with such issuer. History.-s. 2, ch. 2006-105. 5/24/2016 3:26PM RAS00000182 Statutes & Constitution :View Statutes : Online Sunshine http://www.! eg.state.fl. us/Statutes/index.cfin? App _ mode~Display _Stat. .. 20 of62 817.36 Resale of tickets.- (1) A person or entity that offers for resale or resells any ticket may charge only $1 above the admission price charged therefor by the original ticket seller of the ticket for the following transactions: (a) Passage or accommodations on any common carrier in this state. However, this paragraph does not apply to travel agencies that have an established place of business in this state and are required to pay state, county, and city occupational license taxes. (b) Multiday or multievent tickets to a park or entertainment complex or to a concert, entertainment event, permanent exhibition, or recreational activity within such a park or complex, including an entertainment/resort complex as defined in s. 561.01 (18). (c) Event tickets originally issued by a charitable organization exempt from taxation under s. 501 (c)(3) of the Internal Revenue Code for which no more than 3,000 tickets are issued per performance. The charitable organization must issue event tickets with the following statement conspicuously printed on the face or back of the ticket: "Pursuant to s. 817.36, Florida Statutes, this ticket may not be resold for more than $1 over the original admission price." This paragraph does not apply to tickets issued or sold by a third party contractor ticketing services provider on behalf of a charitable organization otherwise included in this paragraph unless the required disclosure is printed on the ticket. (d) Any tickets, other than the tickets in paragraph (a), paragraph (b), or paragraph (c), that are resold or offered through an Internet website, unless such website is authorized by the original ticket seller or makes and posts the following guarantees and disclosures through Internet web pages on which are visibly posted, or links to web pages on which are posted, text to which a prospective purchaser is directed before completion of the resale transaction: 1. The website operator guarantees a full refund of the amount paid for the ticket including any servicing, handling, or processing fees, if such fees are not disclosed, when: a. The ticketed event is canceled; b. The purchaser is denied admission to the ticketed event, unless such denial is due to the action or omission of the purchaser; c. The ticket is not delivered to the purchaser in the manner requested and pursuant to any delivery guarantees made by the reseller and such failure results in the purchaser's inability to attend the ticketed event. 2. The website operator discloses that it is not the issuer, original seller, or reseller of the ticket or items and does not control the pricing of the ticket or items, which may be resold for more than their original value. (2) This section does not authorize any individual or entity to sell or purchase tickets at any price on property where an event is being held without the prior express written consent of the owner of the property. (3) Any sales tax due for resales under this section shall be remitted to the Department of Revenue in accordance with s. 212.04. (4) A person who knowingly resells a ticket or tickets in violation of this section is liable to the state for a civil penalty equal to treble the amount of the price for which the ticket or tickets were resold. (5) A person who intentionally uses or sells software to circumvent on a ticket seller's Internet website a security measure, an access control system, or any other control or measure that is used to ensure an equitable ticket·buying process is liable to the state for a civil penalty equal to treble the amount for which the ticket or tickets were sold. (6) As used in this section, the term "software" means computer programs that are primarily designed or produced for the purpose of interfering with the operation of any person or entity that sells, over the 5/24/2016 3:26 PM RAS00000183 Statutes & Constitution :View Statutes : Online Sunshine http ://www.leg. state. fl. us/Statnteslindex. cfln? App _ mode~Display_ Stat. .. 21 of62 Internet, tickets of admission to a sporting event, theater, musical performance, or place of public entertainment or amusement of any kind. History.-ss. 1, 1a, ch. 22726, 1945; s. 868, ch. 71-136; s. 7, ch. 90-231; s. 9, ch. 95-314; s. 3, ch. 2006-105; s.152, ch. 2007-5; s. 4, ch. 2009-179; s. 123, ch. 2010-5. 817.361 Sale or transfer of multiuse tickets.- (1) As used in this section, the term: (a) "Issuer" means the person or entity that created a multiuse ticket and is obligated to allow admission thereunder. (b) "Multiuse ticket" means a ticket, other medium, or right designed for admission to more than one theme park complex, or to more than one amusement location or other facility in a theme park complex, or for admission for more than 1 day or more than once in the same day to one or more such locations or facilities in a theme park complex. (c) "Theme park complex" means an area comprised of at least 25 acres of land owned by the same business entity and which contains rides or other recreational activities. (2) A person who offers for sale, sells, or transfers in connection with a commercial transaction, with or without consideration, a nontransferable multiuse ticket or a card, wristband, or other medium that accesses or is associated with any such nontransferable multiuse ticket after the nontransferable multiuse ticket has been used at least once for admission commits a violation of this subsection. For purposes of this subsection, a multiuse ticket is nontransferable unless the phrase "may be used by more than one person" is printed clearly on the multiuse ticket by the issuer or the issuer explicitly states on its website that the multiuse ticket may be used by more than one person. (3)(a) · Except as provided in paragraph (b), a person who violates subsection (2) commits a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. (b) A person who commits a second or subsequent violation of subsection (2) commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 1, ch. 88-127; s. 2, ch. 2014-95. 817.37 Touting; defining; providing punishment; ejection from racetracks.- (1) Any person who knowingly and designedly by false representation attempts to, or does persuade, procure or cause another person to wager on a horse in a race to be run in this state or elsewhere, and upon which money is wagered in this state, and who asks or demands compensation as a reward for information or purported information given in such case is a tout, and is guilty of touting. (2) Any person who is a tout, or who attempts or conspires to commit touting, shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. (3) Any person who in the commission of touting falsely uses the name of any official of the Florida Division of Pari-mutuel Wagering, its inspectors or attaches, or of any official of any racetrack association, or the names of any owner, trainer, jockey, or other person licensed by the Florida Division of Pari-mutuel Wagering, as the source of any information or purported information shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (4) Any person who has been convicted of touting by any court, and the record of whose conviction on such charge is on file in the office of the Florida Division of Pari-mutuel Wagering, any court of this state, or of the Federal Bureau of l nvestigation, or any person who has been ejected from any racetrack of this or any other state for touting or practices inimical to the public interest shall be excluded from all racetracks in this state and if such person returns to a racetrack he or she shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. Any such person 5/24/2016 3:26PM RAS00000184 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index.cfm? App _mode~ Display_ Stat. .. 22 of62 who refuses to leave such track when ordered to do so by inspectors of the Florida Division of Pari-mutuel Wagering or by any peace officer, or by an accredited attache of a racetrack or association shall be guilty of a separate offense which shall be a misdemeanor of the second degree, punishable as provided ins. 775.083. History.-ss. 1-4, ch. 24344, 1947; s. 10, ch. 26484, 1951; s. 1, ch. 67-233; s. 2, ch. 71-98; s. 869, ch. 71-136; s. 1257, ch. 97-102. 817.38 Simulated process.- (1) CIRCULATION PROHIBITED.-It is unlawful for any person, firm, or corporation to send or deliver, or cause to be sent or delivered any letter, paper, document, notice of intent to bring suit, or other notice or demand, which simulates a summons, complaint, writ, or other court process, or any letter, paper, or document which simulates the seal of the state or the stationery of any state agency or fictitious state agency with intent to lead the recipient or sendee to believe that the same is genuine, for the purpose of obtaining any money or thing of value, or that a state agency is the sending party. The sending of such simulating document shall be prima facie evidence of such intent, and it shall be no defense to show that the document bears any statement to the contrary, nor shall it be a defense to show that the money or thing of value sought to be obtained was to apply as payment on a valid obligation. (2) EVIDENCE OF DELIVERY.-In prosecutions for violation of this section, the prosecution may show that the simulating document was deposited in the post office for mailing or was delivered to any person with intent to be forwarded, and such showing shall be sufficient proof of the sending or delivery. (3) VENUE. -Any person violating this section may be tried therefor in the county where such simulating document was so deposited, or the county where the same was received. (4) EXCEPTION.-Nothing in this section shall be construed to prohibit the printing, publication or distribution of blank forms of genuine summons and other court process. (5) PENALTIES.-Any person, firm or corporation violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. History.-ss. 1-5, ch. 57-73; s. 1, ch. 65-336; s. 870, ch. 71-136. 817.39 Simulated forms of court or legal process, or official seal or stationery; publication, sale or circulation unlawful; penalty.- (1) Any person or business entity who prints, for the purpose of sale or distribution and for use in the state, or who circulates, publishes, or offers for sale any letter, paper, document, notice of intent to bring suit, or other notice or demand, which simulates a form of court or legal process, or any person who without authority of the state prints, for the purpose of sale or distribution for use in the state, or who without authority of the state circulates, publishes, or offers for sale any letters, papers, or documents which simulate the seal of the state, or the stationery of a state agency or fictitious state agency commits a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. (2) It shall be no defense that the paper or other instrument referred to in subsection (1) shall declare that it is not a court or legal process. (3) This section does not prevent the printing, publication, sale, or distribution of genuine legal forms for the use of attorneys or clerks of courts. History.-ss. 1-3, ch. 57-265; s. 2, ch. 65-336; s. 871, ch. 71-136; s. 240, ch. 77-104; s. 10, ch. 2015-166. 817.40 False, misleading and deceptive advertising and sales; definitions.-When construing ss. 817.40, 817.41, 817.43-817.47, and each and every word, phrase or part thereof, where the context will permit: (1) The word or term "wholesale" or "wholesale sale" shall extend to and include an "at-cost sale," 5/24/2016 3:26PM RAS00000185 Statutes & Constitution :View Statutes: Online Sunshine http:/ /www.leg.state. fl. us/Statutes/index. cfin? App _mode~Display _Stat. .. 23 of62 "below-cost sale," and terms of similar purport, and embraces all sales purporting to be made at or below the seller's net delivered cost price, or below the average wholesale cost of the items sold or to be sold,· but which are in fact made for a price in excess of the average wholesale of like items. (2) The word or term "retail" means the sale or offering for sale of individual items of merchandise to the ultimate consumer. (3) The term or word "retailer" means one who acquires for the purpose of sale, keeps for sale, offers or exposes for sale, or sells individual units of merchandise to the ultimate consumer and not for resale. (4) The term or word "merchandise" includes goods, wares and merchandise, as generally understood, and in addition thereto services and other things of value. (5) The phrase "misleading advertising" includes any statements made, or disseminated, in oral, written, electronic, or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services. (6) The definitions contained in s. 1.01, insofar as the context of this act will permit, shall be applicable hereto. History.-s. 1, ch. 59-301; s. 73, ch. 95-211; s. 11, ch. 2015-166. 817.41 Misleading advertising prohibited.- (1) It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses. (2) It shall be unlawful for any person to advertise, in any way or by any medium whatsoever, any sale as a "wholesale sale," "below cost sale," or terms of similar purport, unless the goods, wares or merchandise offered for sale thereby are offered by the seller at or below his or her delivered net cost price, or below the average wholesale price of such goods, wares, or merchandise. Such advertising of goods, wares, or merchandise for sale shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses. (3) Any retailer using the term or phrase "wholesale sale," "below cost sale," or terms of similar purport, in connection with the sale of goods, wares, or merchandise at retail, shall, upon demand by a customer, forthwith make available, unless the same shall have theretofore been made available, to the Better Business Bureau, the Merchant's Division of the Chamber of Commerce, or to the state attorney's office for inspection, invoices, or shipping charges or true and correct copies thereof, of any goods, wares, or merchandise so offered for sale, described or represented, indicating the delivery net cost to the seller of the particular goods, wares or merchandise sold or offered for sale, from which the seller's delivered net cost may be determined. The said retailer shall also and at the same time give all reasonable assistance in determining and ascertaining his or her net cost price of said goods, wares, or merchandise. The said Better Business Bureau, Merchant's Division of the Chamber of Commerce or state attorney, upon determining the said delivered net cost, shall forthwith issue a certificate evidencing such delivered net cost, as determined, and deliver the same to the retailer for delivery or exhibition to the customer. Unless such certificate shall show a delivered net cost equal to or in excess of the advertised price, the retailer shall be presumed to have violated this law. 5/24/2016 3:26 PM RAS00000186 Statutes & Constitution :View Statutes : On I ine Sunshine http://www.leg.state.fl .us/S tatutes /ind ex.e fin ?App _mode=Di sp la y_Stat. .. 24 of62 (4) There shall be a rebuttable presumption that the perso n named in or obtaining the benefits of any misleading advertisement or any such sale is responsible for such misleading advertisement or unlawful sale. (5) No retailer shall knowingly and willfully advertise merchandise for sale at a special or wholesale price , in any way or by any medium whatsoever, if he or she does not have sufficient quantities of the advertised merchandise to meet the reasonably foreseeable demand, unless the fact of limited quantity and the approximate number of items i s stated in the advertisement, or unless the retailer provides a means by which the consumer may obtain the advertised item at the advertised price within a reasonable time or a value equivalent thereto. (6) Any person prevailing in a civil action for violation of this section shall be awarded costs, including reasonable attorney's fees, and may be awarded punitive damages in addition to actual damages prov en. This provision is in addition to any other remedies prescribed by law. History.-s. 2, ch. 59·301; s. 1, ch. 73·60; s. 2, ch. 77·304; s . 1258, ch. 97-102 . 817.411 False information; advertising.-A person or busin ess entity may not knowingly publish, disseminate, circulate, or place before the public, or cause directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television sta tion, electronically, or in any other way, any advertisement, announcement, or statement containing an y assertion , represe ntation, or statement that commod ities, mortgages, promisso ry notes, securities, or other things of value offered for sale are covered by insurance guaranties where such insurance is nonexistent or does not in fact insure against the risks covered. History.-s. 1, ch. 61-110; s. 12, ch. 2015·166. 817.4115 False, deceptive, or misleading advertisement of live musical performances.- (1) For purposes of this section, the term: (a) "Performing person or group" means a vocal or instrumental performer using or attempting to use the name of a recording person or group. (b) "Recording person or group" means a vocal or instrumental performer that ha s previously produced or released, or both, a commercia l recording. (2)(a) A person may not advertise a live musical performance or production in this state using a false, deceptive, or misleading statement of an affiliation, connection, or association between a performing person or group and a recording person or group. (b) A person may not conduct a live musical performance or production in this state using a false, deceptive, or misleading statement of an affiliation, connection, or association between a performing person or group and a recording person or group. (3) An advertisement or the conducting of a live musical performance or production does not violate subsection (2) if: (a) The performing person or at least one member of the performing group was a member of the reco r ding group and retains the legal right to use the name of the recording group by not ha v ing abandoned the affiliation with the recording group or its name; (b) The performing person or group is the authorized registrant and owner of a federal service mark for that person or group which is registered with the United States Patent and Trad emark Office; (c) The live musical performance or production is identified as a "salute" or "tribute" to, and is otherwise unaffiliated with, the recording person or group; (d) The advertising does not relate to a live musical performance taking place in this state; or 5/24 /2016 3:26 PM RAS00000187 Statutes & Constitution :View Statutes: Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index.cfin? App _ mode~Disp lay_ Stat. .. 25 of62 (e) The performance is expressly authorized in the advertising by the recording person or group. (4) Any person who violates subsection (2) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second or subsequent violation of subsection (2), the person commits a misdemeanor of the first degree, punishable as provided ins. 775.082 or by a fine not to exceed $5,000, or both. (5) The Department of Legal Affairs or a state attorney may file a civil action on behalf of the people of this state for injunctive relief against any person or group violating subsection (2) to restrain the prohibited activity. The court may award court costs and reasonable attorney's fees to the prevailing party. The court may also impose a civil penalty not to exceed $5,000 for each violation of subsection (2). History.-s. 1, ch. 2007-137. 817.412 Sale of used goods as new; penalty.- (1) It is unlawful for a seller in a transaction where the purchase price of goods exceeds $100 to misrepresent orally, in writing, electronically, or-by fa1lufe to -speak-that -the goods are new or original when they are used or repossessed or where they have been used for sales demonstration. (2) A person who violates this section commits a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. Hlstory.-s. 14, ch. 93-38; s. 13, ch. 2015-166. 817.413 Sale of used motor vehicle goods as new; penalty.- (1) With respect to a transaction for which any charges will be paid from the proceeds of a motor vehicle insurance policy, and in which the purchase price of motor vehicle goods exceeds $100, it is unlawful for the seller to knowingly misrepresent orally, in writing, or by failure to speak, that the goods are new or original when they are used or repossessed or have been used for sales demonstration. (2) A person who violates the provisions of this section commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 6, ch. 2003-148. 817.414 Sale of counterfeit security signs and decals.-A person who willfully and knowingly sells or attempts to sell a counterfeit sign or decal in this state with the name or logo of a security company without the express written consent of the company commits: (1) For the first offense, a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (2) For a second or subsequent offense, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. History.-s. 14, ch. 2015-166. 817.415 Florida Free Gift Advertising Law.- (1) LEGISLATIVE INTENT.- (a) The Legislature of the State of Florida recognizes that the deceptive misuse of the term "free" and words of similar meaning and intent in advertising by the unscrupulous has resulted in deception of consumers, leading them unknowingly to assume contractual obligations which were initially concealed by the deception. (b) It is the intent of the Legislature to prevent such deception by requiring disclosure of all contingent conditions, obligations, or considerations in any form in connection with the advertising of goods or services using the term "free" or words of similar meaning and intent. (c) It is not the intent of the Legislature to prohibit the use of gifts in legitimate promotions of trade 5/24/2016 3:26 PM RAS00000188 Statutes & Constitution :View Statutes: Online SlU1sbine http:/ /www.leg. state.fl. us/Statutes/index. cfln? App _ mode~Display _Stat. .. 26 of62 so long as the advertising of such gifts and promotions makes full disclosure of any requirement for purchase or contractual obligations to be assumed in order to qualify for the gift. (2) SHORT TITLE.-This act may be cited as the "Florida Free Gift Advertising Law." (3) DEFINITIONS.-As used in this act: (a) "Person" includes an individual, partnership, corporation, association, or other entity doing business in the state. (b) "Free" includes the use of terms such as "awarded," "prize," "absolutely without charge," "free of charge," and words or groups of words of similar intent which reasonably lead a person to believe that he or she may receive, or has been selected to receive, something of value, entirely or in part without a requirement of compensation in any form from the recipient. (c) "Item" means goods, services, or any tangible or intangible thing of value and the rights therein. (d) "Advertisement" and "advertising" includes every form of communication which offers for sale, or attempts to induce the creation of obligations in exchange for, any item or rights therein. (4) RESTRICTIONS ON USE OF WORD "FREE. "-Any item or portion of an item unconditionally offered as "free" shall in fact be free, without obligation or requirement of consideration in any form, when accepted in writing within the time limit set forth in the advertisement or within a reasonable time, if no time limit is so set. However, any person so receiving and accepting such offer may be required to pay any necessary transportation or delivery charges directly to the United States Postal Service or other regulated public carrier. (5) REQUIREMENTS FOR ADVERTISEMENTS.-Advertising in which items are offered as free with conditions or obligations necessary to acceptance shall include a clear and conspicuous statement of any such conditions or obligations and advertising in compliance herewith shall not be considered deceptive. (6) VIOLATIONS.-Any violation of this section is declared to be a deceptive trade practice and unlawful. (7) INJUNCTIONS.-The Commissioner of Agriculture or the Attorney General may bring an action for injunction to prohibit practices in violation of this law, and any such injunction shall be issued without bond. Such suit may be brought in any circuit court of this state having jurisdiction over the party or parties defendant. History.-ss. 1, 2, 3, 4, 5, ch. 70·164; s. 1, ch. 70·439; ss. 1, 2, 3, 4, 5, 6, ch. 72-4; s. 1259, ch. 97-102; s. 11, ch. 98-299. 817.416 Franchises and distributorships; misrepresentations.- (1) DEFINITIONS.-For the purpose of this section: (a) The term "person" means an individual, partnership, corporation, association, or other entity doing business in Florida. (b) The term "franchise or distributorship" means a contract or agreement, either expressed or implied, whether oral or written, between two or more persons: 1. Wherein a commercial relationship of definite duration or continuing indefinite duration is involved; 2. Wherein one party, hereinafter called the "franchisee," is granted the right to offer, sell, and distribute goods or services manufactured, processed, distributed or, in the case of services, organized and directed by another party; 3. Wherein the franchisee as an independent business constitutes a component of franchisor's distribution system; and 4. Wherein the operation of the franchisee's business franchise is substantially reliant on franchisors for the basic supply of goods. 5/24/2016 3:26 PM RAS00000189 Statutes & Constitution :View Statutes: Online Sunshine http://www.leg.state.fl. us/Statutes/ index. cfin? App _mode~Display _Stat. .. 27 of62 (c) The term "goods" means any article or thing without limitation, or any part of such article or thing, including any article or thing used or consumed by a franchisee in rendering a service established, organized, directed, or approved by a franchisor. (2) DECLARATIONS.- (a) It is unlawful, when selling or establishing a franchise or distributorship, for any person: 1. Intentionally to misrepresent the prospects or chances for success of a proposed or existing franchise or distributorship; 2. Intentionally to misrepresent, by failure to disclose or otherwise, the known required total investment for such franchise or distributorship; or 3. Intentionally to misrepresent or fail to disclose efforts to sell or establish more franchises or distributorships than is reasonable to expect the market or market area for the particular franchise or distributorship to sustain. (b) The execution or carrying out of a scheme, plan, or corporate organization which violates any of the provisions of this section, if knowledge or intent be proved, shall be a misdemeanor of the second degree, punishable as provided in ss. 775.082 and 775.083. (3) CIVIL PROVISIONS.-Any person, who shows in a civil court of law a violation of this section may receive a judgment for all moneys invested in such franchise or distributorship. Upon such a showing, the court may award any person bringing said action reasonable attorney's fees and shall award such person reasonable costs incurred in bringing the action, and execution shall thereupon issue. (4) INJUNCTIONS.-The Department of Legal Affairs, or the Department of Legal Affairs and the Department of Agriculture and Consumer Services jointly, may sue in behalf of the people of this state for injunctive relief against franchise or distributorship plans or activities in violation of paragraph (2)(a). History.-ss. 1, 2, 2A, 3, 4, ch. 71 ·61. 817.43 Exemption.-The provisions of s. 817.40 or s. 817.41 shall not apply to any publisher of a newspaper, magazine or other publication, or the owner or operator of a radio or television station, or any other owner or operator of a media primarily devoted to advertising, who publishes, broadcasts, or otherwise disseminates an advertisement in good faith without knowledge of its false, deceptive or misleading character. History.·-s, 4, ch. 59·301; s. 178, ch. 79·164. 817.44 Intentional false advertising prohibited.- (1) WHAT CONSTITUTES INTENTIONAL FALSE ADVERTISING.-It is unlawful to offer for sale or to issue invitations for offers for the sale of any property, real or personal, tangible or .intangible, or any services, professional or otherwise, by placing or causing to be placed before the general public, by any means whatever, an advertisement describing such property or services as part of a plan or scheme with the intent not to sell such property or services so advertised, or with the intent not to sell such property or services at the price at which it was represented in the advertisement to be available for purchase by any member of the general public. (2) PRESUMPTION OF VIOLATION.-The failure to sell any article or a class of articles advertised, or the refusal to sell at the price at which it was advertised to be available for purchase, shall create a rebuttable presumption of an intent to violate this section. (3) EXEMPTION.-This section shall not apply to any publisher of a newspaper, magazine or other publication, or the owner or operator of a radio station, television station or other advertising media, who places before the public an advertisement in good faith without knowledge that the person so engaging or hiring such owner, operator, or publisher has the intent not to sell the property or services so 5/24/2016 3:26PM RAS00000190 Statutes & Constitution :View Statutes : Online Sunshine http://www. leg.state. fl. us/Statutes/index. cfin? App _ mode~Displ ay _Stat. .. 28 of62 advertised or with the intent not to sell such property or services at the price at which it was represented in the advertisement to be available for purchase by any member of the general public. History.-s. 5, ch, 59·301. 817.45 Penalty.-Any person convicted of violating any of the provisions of s. 817.41, s. 817.411, or s. 817.44 is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second or subsequent conviction for violation of s. 817.41, s. 817.411, or s. 817.44, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine not exceeding $10,000, or by both. History.-s. 6, ch. 59·301; s. 872, ch. 71-136; s. 179, ch. 79·164; s. 1, ch. 89·68. 817.47 Insurance advertising exempt.-Nothing in ss. 817.40, 817.41, 817.43·817.45, and 817.47 shall be deemed to apply to advertising in connection with sales of insurance which are regulated under the insurance laws of this state. History.-s. 9, ch. 59·301; s. 74, ch. 95·211. 817.481 Credit or purchases; obtaining illicitly.- (1) It shall be unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property, or service, by the use of any false, fictitious, counterfeit, or expired credit card, telephone number, credit number, or other credit device, or by the use of any credit card, telephone number, credit number, or other credit device of another person without the authority of the person to whom such card, number, or device was issued, or by the use of any credit card, telephone number, credit number, or other credit device in any case where such card, number, or device has been revoked and notice of revocation has been given to the person to whom issued. (2) It shall be unlawful for any person to avoid or attempt to avoid or to cause another to avoid payment of the lawful charges, in whole or in part, for any telephone or telegraph service or for the transmission of a message, signal or other communication by telephone or telegraph or over telephone or telegraph facilities by the use of any fraudulent scheme, means or method, or any mechanical, electric, or electronic device. (3)(a) If the value of the property, goods, or services obtained or which are sought to be obtained in violation of this section is $300 or more, the offender shall be guilty of grand larceny. (b) If the value of the property, goods, or services obtained or which are sought to be obtained in violation of this section is less than $300 the offender shall be guilty of petit larceny. History.-ss. 1, 2, 3, ch. 61·83; s. 1, ch. 65·245; s. 1, ch. 65·128; s. 873, ch. 71·136; s. 4, ch. 86·161; s. 15, ch. 2015·166. 817,482 Possessing or transferring device for theft of telecommunications service; concealment of destination of telecommunications service,- (1) It shall be unlawful for any person knowingly to: (a) Make or possess any instrument, apparatus, equipment or device designed or adapted for use for the purpose of avoiding or attempting to avoid payment of telecommunications service in violation of s. 817.481; or (b) Sell, give, transport, or otherwise transfer to another, or offer or advertise to sell, give, or otherwise transfer, any instrument, apparatus, equipment, or device described in paragraph (a), or plans or instructions for making or assembling the same; under circumstances evincing an intent to use or employ such instrument, apparatus, equipment, or device, or to allow the same to be used or employed, for a purpose described in paragraph (a), or knowing or having reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for making or assembling 5/24/2016 3:26PM RAS00000191 Statutes & Constitution :View Statutes : Online Sunshine http://www.leg.state.fl. us/Statutes/index.cfm? App _ mode~Display _Stat. .. 29 of62 such instrument, apparatus, equipment, or device. Any person violating the provisions of paragraphs (a) and (b) is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. (2) Any person who shall make or possess, for purposes of avoiding or attempting to avoid payment for long-distance telecommunication services, any electronic device capable of duplicating tones or sounds utilized in long-distance telecommunications shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (3) Any such instrument, apparatus, equipment, or device, or plans or instructions therefor, referred to in subsections (1) and (2), may be seized by court order or under a search warrant of a judge or incident to a lawful arrest; and upon the conviction of any person for a violation of any provision of this act, or s. 817.481, such instrument, apparatus, equipment, device, plans, or instructions either shall be destroyed as contraband by the sheriff of the county in which such person was convicted or turned over to the telephone company in whose territory such instrument, apparatus, equipment, device, plans, or instructions were seized. History.-s. 2, ch. 65-245; s. 874, ch. 71-136; s. 1, ch. 74-137; s. 14, ch. 2004-11. 817.4821 Cellular telephone counterfeiting offenses.- (1) As used in this act, the term: (a) "Possess" means to have physical possession or otherwise to exercise dominion or control over tangible property. (b) "Intercept" means to electronically capture, record, reveal, or otherwise access, the signals emitted or received during the operation of a cellular telephone without the consent of the sender or receiver thereof, by means of any instrument, device, or equipment. (c) "Electronic serial number" means the unique numerical algorithm that is programmed into the microchip of each cellular telephone by the manufiicturer andis vital to the successful operatlOn and billing of the telephone. (d) "Mobile identification number" means the cellular telephone number assigned to the cellular telephone by the cellular telephone carrier. (e) "Cellular telephone" means a communication device containing a unique electronic serial number that is programmed into its computer chip by its manufacturer and whose operation is dependent on the transmission of that electronic serial number along with a mobile identification number, which is assigned by the cellular telephone carrier, in the form of radio signals through cell sites and mobile switching stations. (f) "Cloned cellular telephone" or "counterfeit cellular telephone" means a cellular telephone whose electronic serial number has been altered from the electronic serial number that was programmed in the phone by the manufacturer. (g) "Cloning paraphernalia" means materials that, when possessed in combination, are necessary and capable of the creation of a cloned cellular telephone. These materials include scanners to intercept the electronic serial number and mobile identification number, cellular telephones, cables, EPROM chips, EPROM burners, software for programming the microchip of the cloned cellular telephone with a false electronic serial number and mobile identification number combination, a computer containing such software, and lists of electronic serial number and mobile identification number combinations. (2) A person who knowingly possesses a cloned cellular telephone commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (3) A person who knowingly possesses an instrument capable of intercepting electronic serial number 5/24/2016 3 :26 PM RAS00000192 Statutes & Constitution :View Statutes :Online Sunshine http://www, I eg.state.fl. us/Statutes/index.cfm? App _ mode~Display _Stat,, 30 of62 and mobile identification number combinations under circumstances evidencing an intent to clone a cellular telephone commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (4) A person who knowingly sells a cloned cellular telephone commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (5) A person who knowingly possesses cloning paraphernalia with intent to use it to create cloned cellular telephones commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (6)(a) Nothing herein shall make unlawful the possession or use of cloning paraphernalia, a cloned cellular telephone, or any intercept by a law enforcement officer or persons acting under the direction of a law enforcement officer in the course of a criminal investigation. (b) Nothing in this section shall make unlawful the possession or use of cloning paraphernalia or a cloned cellular telephone by a cellular telephone carrier. History.-s. 35, ch. 95·403; s. 1, ch. 96-264. 817.483 Transmission or publication of information regarding schemes, devices, means, or methods for theft of communication services.-Any person who transmits or publishes the number or code of an existing, canceled, revoked, or nonexistent telephone number or credit number or other credit device, or method of numbering or coding which is employed in the issuance of telephone numbers or credit numbers or other credit devices, with the intent to avoid or to cause another to avoid lawful charges is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. History.-s. 1, ch. 74-138. 817.484 Obtaining telephone calling records by fraudulent means prohibited.- (1) As used in this section, the term: (a) "Calling record" means a record held by a telecommunications company of the telephone calls made or text messages sent or received by a customer of that company. (b) "Customer" means a person who has received telephone service from a telecommunications company. (c) "Law enforcement agency" has the same meaning as in s. 23.1225(1 )(d). (d) "Telecommunications company" has the same meaning as ins. 364.02, except that the term includes Vo!P service and commercial mobile radio service providers. (2) It is a violation of this section for a person to: (a) Obtain or attempt to obtain the calling record of another person without the permission of that person by: 1. Making a false, fictitious, or fraudulent statement or representation to an officer, employee, or agent of a telecommunications company; 2. Making a false, fictitious, or fraudulent statement or representation to a customer of a telecommunications company; or 3. Providing any document to an officer, employee, or agent of a telecommunications company, knowing that the document is forged, is counterfeit, was lost or stolen, was fraudulently obtained, or contains a false, fictitious, or fraudulent statement or representation. (b) Ask another person to obtain a calling record, knowing that the other person will obtain, or attempt to obtain, the calling record from the telecommunications company in any manner described in paragraph (a). (c) Sell or offer to sell a calling record obtained in any manner described in paragraph (a) or 5/24/2016 3:26PM RAS00000193 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index.cfin? App _ mode~Disp lay_ Stat. .. 31 of 62 paragraph (b). (3) A person who violates this section for the first time commits a misdemeanor of the first degree, punishable as provided in s. 775,082 or s. 775,083. A second or subsequent violation constitutes a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. (41 It is not a violation of this section for: (a) A law enforcement agency to obtain a calling record in connection with the performance of the official duties of that agency in accordance with other applicable laws. (b) A telecommunications company, or an officer, employee, or agent of a telecommunications company, to obtain a calling record of that company in the course of: 1. Testing the security procedures or systems of the telecommunications company for maintaining the confidentiality of customer information; 2. Investigating an allegation of misconduct or negligence on the part of an officer, employee, or agent of the telecommunications company; or 3. Recovering a calling record that was obtained or received by another person in any manner described in subsection (2). Hlstory.-s. 1, ch. 2006-141, 817.487 Telephone caller identification systems.- (1) As used in this section: (a) "Call" means any type of telephone call made using a public switched telephone network, wireless cellular telephone service, or voice-over-Internet protocol (VolPI service that has the capability of accessing users on the public switched telephone network or a successor network. (b) "Caller" means a person who places a call, whether by telephone, over a telephone line, or on a computer. (c) "Enter" means to input data by whatever means into a computer or telephone system. (d) "False information" means data that misrepresents the identity of the caller to the recipient of a call or to the network itself; however, when a person making an authorized call on behalf of another person inserts the name, telephone number, or name and telephone number of the person on whose behalf the call is being made, such information shall not be deemed false information. (e) "Telephone caller identification system" means a listing of a caller's name, telephone number, or name and telephone number that is shown to a recipient of a call when it is received. (2) A person may not enter or cause to be entered false information into a telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of a call. (3) A person may not place a call knowing that false information was entered into the telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of the call. (4) This section shall not apply to: (a) The blocking of caller identification information. (b) Any law enforcement agency of the federal, state, county, or municipal government. (c) Any intelligence or security agency of the Federal Government. (d) A telecommunications, broadband, or voice-over-Internet service provider that is acting solely as an intermediary for the transmission of telephone service between the caller and the recipient. (5)(a) Any person who violates subsection (2) or subsection (3) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (b) Any violation of subsection (2) or subsection (3) constitutes an unlawful trade practice under part II of chapter 501 and, in addition to any remedies or penalties set forth in this section, is subject to any 5/24/2016 3:26PM RAS00000194 Statutes & Constitution :View Statutes : Online Stmshine http://www.leg.state.fl. us/Statutes/index. cfm? App _ mode~Display _Stat. .. 32 of62 remedies or penalties available for a violation of that part. (6)(a) The felony or misdemeanor degree of any criminal offense shall be reclassified by the court to the next higher degree as provided in this subsection if the offender violated subsection (2) or subsection (3) during the commission of the criminal offense or if a violation by the offender of subsection (2) or subsection (3) facilitated or furthered the criminal offense. The reclassification shall be as follows: 1. In the case of a misdemeanor of the second degree, the offense is reclassified as a misdemeanor of the first degree. 2. In the case of a misdemeanor of the first degree, the offense is reclassified as a felony of the third degree. 3. In the case of a felony of the third degree, the offense is reclassified as a felony of the second degree. 4. In the case of a felony of the second degree, the offense is reclassified as a felony of the first degree. 5. In the case of a felony of the first degree or a felony of the first degree punishable by a term of imprisonment not exceeding life, the offense is reclassified as a life felony. (b) For purposes of sentencing under chapter 921, the following offense severity ranking levels apply: 1. An offense that is a misdemeanor of the first degree and that is reclassified under this subsection as a felony of the third degree is ranked in level2 of the offense severity ranking chart. 2. A felony offense that is reclassified under this subsection is ranked one level above the ranking specified ins. 921.0022 or s. 921.0023 for the offense committed. History,-s. 2, ch. 2008-185. 817.49 False reports of commission of crimes; penalty.-Whoever willfully imparts, conveys or causes to be imparted or conveyed to any law enforcement officer false information or reports concerning the alleged commission of any crime under the laws of this state, knowing such information or report to be false, in that no such crime had actually been committed, shall upon conviction thereof be guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. History.-s. 1, ch. 59-294; s. 875, ch. 71-136. 817.50 Fraudulently obtaining goods or services from a health care provider; false reports of a communicable disease.- (1) Whoever shall, willfully and with intent to defraud, obtain or attempt to obtain goods, products, merchandise, or services from any health care provider in this state, as defined ins. 641.19(14), including a person who, during a declared public health emergency as defined ins. 381.00315, willfully and with intent to defraud, claims that he or she has contracted a communicable disease, to obtain or attempt to obtain such goods, products, merchandise, or services or falsely reports that he or she has contracted a communicable disease to a law enforcement officer as defined ins. 943.10, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2) If any person gives to any health care provider in this state a false or fictitious name or a false or fictitious address or assigns to any health care provider the proceeds of any health maintenance contract or insurance contract, then knowing that such contract is no longer in force, is invalid, or is void for any reason, such action shall be prima facie evidence of the intent of such person to defraud the health care provider. However, this subsection does not apply to investigative actions taken by law enforcement officers for law enforcement purposes in the course of their official duties. History.-ss. 1, 2, ch. 61-154; s. 876, ch. 71-136; s. 166, ch. 83·216; s. 12, ch. 2000-252; s. 1911, ch. 2003-261; s. 18, ch. 2006-305; s. 3, ch. 2015-120; s. 16, ch. 2015-166. 5/24/2016 3:26PM RAS00000195 Statutes & Constitution :View Statutes: Online Sunshine http://www.leg.state. fl. us/Statutes/index. cfin? App _ mode~D isplay _Stat. .. 33 of62 817.505 Patient brokering prohibited; exceptions; penalties.- (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility; (b) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring patients or patronage to or from a health care provider or health care facility; (c) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for the acceptance or acknowledgment of treatment from a health care provider or health care facility; or (d) Aid, abet, advise, or otherwise participate in the conduct prohibited under paragraph (a), paragraph (b), or paragraph (c). (2) For the purposes of this section, the term: (a) "Health care provider or health care facility" means any person or entity licensed, certified, or registered; required to be licensed, certified, or registered; or lawfully exempt from being required to be licensed, certified, or registered with the Agency for Health Care Administration or the Department of Health; any person or entity that has contracted with the Agency for Health Care Administration to provide goods or services to Medicaid recipients as provided under s. 409,907; a county health department established under part I of chapter 154; any community service provider contracting with the Department of Children and Families to furnish alcohol, drug abuse, or mental health services under part IV of chapter 394; any substance abuse service provider licensed under chapter 397; or any federally supported primary care program such as a migrant or community health center authorized under ss. 329 and 330 of the United States Public Health Services Act. (b) "Health care provider network entity" means a corporation, partnership, or limited liability company owned or operated by two or more health care providers and organized for the purpose of entering into agreements with health insurers, health care purchasing groups, or the Medicare or Medicaid program. (c) "Health insurer" means any insurance company authorized to transact health insurance in the state, any insurance company authorized to transact health insurance or casualty insurance in the state that is offering a minimum premium plan or stop-loss coverage for any person or entity providing health care benefits, any self-insurance plan as defined in s. 624.031, any health maintenance organization authorized to transact business in the state pursuant to part I of chapter 641, any prepaid health clinic authorized to transact business in the state pursuant to part II of chapter 641, any prepaid limited health service organization authorized to transact business in this state pursuant to chapter 636, any multiple- employer welfare arrangement authorized to transact business in the state pursuant toss. 624.436·624.45, or any fraternal benefit society providing health benefits to its members as authorized pursuant to chapter 632. (3) This section shall not apply to: (a) Any discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a·7b(b) or regulations promulgated thereunder. (b) Any payment, compensation, or financial arrangement within a group practice as defined ins. 456.053, provided such payment, compensation, or arrangement is not to or from persons who are not members of the group practice. (c) Payments to a health care provider or health care facility for professional consultation services. 5/24/2016 3:26PM RAS00000196 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.l eg.state. fl. us/Statutes/index.cfln? App _ mode~Displ ay_ Stat. .. 34 of62 (d) Commissions, fees, or other remuneration lawfully paid to insurance agents as provided under the insurance code. (e) Payments by a health insurer who reimburses, provides, offers to provide, or administers health, mental health, or substance abuse goods or services under a health benefit plan. (f) Payments to or by a health care provider or health care facility, or a health care provider network entity, that has contracted with a health insurer, a health care purchasing group, or the Medicare or Medicaid program to provide health, mental health, or substance abuse goods or services under a health benefit plan when such payments are for goods or services under the plan. However, nothing in this section affects whether a health care provider network entity is an insurer required to be licensed under the Florida Insurance Code. (g) Insurance advertising gifts lawfully permitted under s. 626.9541 (1 )(m ). (h) Commissions or fees paid to a nurse registry licensed under s. 400.506 for referring persons providing health care services to clients of the nurse registry. (i) Payments by a health care provider or health care facility to a health, mental health, or substance abuse information service that provides information upon request and without charge to consumers about providers of health care goods or services to enable consumers to select appropriate providers or facilities, provided that such information service: 1. Does not attempt through its standard questions for solicitation of consumer criteria or through any other means to steer or lead a consumer to select or consider selection of a particular health care provider or health care facility; 2. Does not provide or represent itself as providing diagnostic or counseling services or assessments of illness or injury and does not make any promises of cure or guarantees of treatment; 3. Does not provide or arrange for transportation of a consumer to or from the location of a health care provider or health care facility; and 4. Charges and collects fees from a health care provider or health care facility participating in its services that are set in advance, are consistent with the fair market value for those information services, and are not based on the potential value of a patient or patients to a health care provider or health care facility or of the goods or services provided by the health care provider or health care facility. (j) Any activity permitted under s. 429.195(2). (4) Any person, including an officer, partner, agent, attorney, or other representative of a firm, joint venture, partnership, business trust, syndicate, corporation, or other business entity, who violates any provision of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (5) Notwithstanding the existence or pursuit of any other remedy, the Attorney General or the state attorney of the judicial circuit in which any part of the offense occurred may maintain an action for injunctive or other process to enforce the provisions of this section. (6) The party bringing an action under this section may recover reasonable expenses in obtaining injunctive relief, including, but not limited to, investigative costs, court costs, reasonable attorney's fees, witness costs, and deposition expenses. (7) The provisions of this section are in addition to any other civil, administrative, or criminal actions provided by law and may be imposed against both corporate and individual defendants. History,-s.1, ch. 96-152; s. 226, ch. 97-101; s. 168, ch. 98-166; s. 297, ch. 99-8; s. 7, ch. 99-204; s. 228, ch. 2000-160; s. 19, ch. 2006-305; s. 37, ch. 2012-160; s. 302, ch. 2014-19; s. 4, ch. 2015-66. 817.51 Obtaining groceries, retail poultry, dairy, bakery, and other retail products; intent to defraud.-Any person who shall obtain any items from retail grocery establishments, or retail poultry, 5/24/2016 3:26PM RAS00000197 Statutes & Constitution :View Statutes: Online Sunshine http://www .leg.state. fl. us/Statutes/index.cfin? App _ mode~Display _Stat ... 35 of62 dairy, bakery or any other retail dealers with intent to defraud the owner or keeper thereof shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083; provided that the provisions of this section shall not apply where there has been an agreement in writing for delay in payments. History.-s. 1, ch. 61-206; s. 1, ch. 67-513; s. 877, ch. 71-136. 817.52 Obtaining vehicles with intent to defraud, failing to return hired vehicle, or tampering with mileage device of hired vehicle.- (1) OBTAINING BY TRICK, FALSE REPRESENTATION, ETC.-Whoever, with intent to defraud the owner or any person lawfully possessing any motor vehicle, obtains the custody of such motor vehicle by trick, deceit, or fraudulent or willful false representation shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2) HIRING WITH INTENT TO DEFRAUD.-Whoever, with intent to defraud the owner or any person lawfully possessing any motor vehicle of the rental thereof,-hires a vehicle from such owner or such owner's agents or any person in lawful possession thereof shall, upon conviction, be deemed guilty of a felony of the third degree, punishable as provided ins. 775.082, s, 775.083, or s. 775.084. The absconding without paying or offering to pay such hire shall be prima facie evidence of such fraudulent intent. (3) FAILURE TO REDELIVER HIRED VEHICLE.-Whoever, after hiring a motor vehicle under an agreement to redeliver the same to the person letting such motor vehicle or his or her agent, at the termination of the period for which it was let, shall, without the consent of such person or persons and with intent to defraud, abandon or willfully refuse to redeliver such vehicle as agreed shall, upon conviction, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (41 TAMPERING WITH MILEAGE DEVICE.-Whoever, after hiring a motor vehicle from any person or persons under an agreement to pay for the use of such motor vehicle a sum of money determinable either in whole or in part upon the distance such motor vehicle travels during the period for which hired, removes, attempts to remove, tampers with, or attempts to tamper with or otherwise interfere with any odometer or other mechanical device attached to said hired motor vehicle for the purpose of registering the distance such vehicle travels, with the intent to deceive the person or persons letting such vehicle or their lawful agent as to the actual distance traveled thereby, shall upon conviction be deemed guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083, Any person who shall knowingly aid, abet or assist another in violating the provisions of this subsection shall, as a principal in the first degree, be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. Any person violating this section may be informed against or indicted in the county where such odometer or such other mechanical device is removed, or attempted to be removed, or tampered with, or attempted to be tampered with, or otherwise interfered with, or in the county where such persons knowingly aid, abet, or assist another In violating the provisions of this section, or in the county where any part of such motor vehicle upon which is attached such odometer, or such other mechanical device, is removed or attempted to be removed. History.-s. 1, ch. 63-177; s. 878, ch. 71-136; s. 1, ch. 74-373; s. 8, ch. 78-412; s. 180, ch. 79-164; s. 1260, ch. 97-102. 817.53 False charges for radio and television repairs and parts; penalty.- (1) It is unlawful for a person to knowingly charge for any services which are not actually performed in repairing a radio or television set, or to knowingly charge for any parts which are not actually furnished, or to knowingly misinform a customer concerning what is wrong with his or her radio or television set, or to knowingly and fraudulently substitute parts when such substitution has no relation to the repairing or servicing of the radio or television set. 5/24/2016 3:26PM RAS00000198 Statutes & Constitution :View Statutes: Online Sunshine http:/ /www.leg.state. fl. us/Statutes/index.cfin? App _mode~ Display_ Stat. .. 36 of62 (2) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. History.-s. 1, ch. 63-383; s. 879, ch. 71·136; s. 1261, ch. 97-102. 817.535 Unlawful filing of false documents or records against real or personal property.- (1) As used in this section, the term: (a) "File" means to present an instrument for recording in an official record or to cause an instrument to be presented for recording in an official record. (b) "Filer" means the person who presents an instrument for recording in an official record or causes an instrument to be presented for recording in an official record. (c) "Instrument" means any judgment, mortgage, assignment, pledge, lien, financing statement, encumbrance, deed, lease, bill of sale, agreement, mortgage, notice of claim of lien, notice of levy, promissory note, mortgage note, release, partial release or satisfaction of any of the foregoing, or any other document that relates to or attempts to restrict the ownership, transfer, or encumbrance of or claim against real or personal property, or any interest in real or personal property. (d) "Official record" means the series of instruments, regardless of how they are maintained, which a clerk of the circuit court, or any person or entity designated by general law, special law, or county charter, is required or authorized by law to record. The term also includes a series of instruments pertaining to the Uniform Commercial Code filed with the Secretary of State or with any entity under contract with the Secretary of State to maintain Uniform Commercial Code records and a database of judgment liens maintained by the Secretary of State. (e) "Public officer or employee" means, but is not limited to: 1. A person elected or appointed to a local, state, or federal office, including any person serving on an advisory body, board, commission, committee, council, or authority. 2. An employee of a state, county, municipal, political subdivision, school district, educational institution, or special district agency or entity, including judges, attorneys, law enforcement officers, deputy clerks of court, and marshals. 3. A state or federal executive, legislative, or judicial officer, employee, or volunteer authorized to perform actions or services for any state or federal executive, legislative, or judicial office, or agency. 4. A person who acts as a general or special magistrate, auditor, arbitrator, umpire, referee, hearing officer, or consultant to any state or local governmental entity. 5. A person who is a candidate for public office or judicial position. (2)(a) A person who files or directs a filer to file, with the intent to defraud or harass another, any instrument containing a materially false, fictitious, or fraudulent statement or representation that purports to affect an owner's interest in the property described in the instrument commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (b) A person who violates paragraph (a) a second or subsequent time commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (3) If a person is convicted of violating subsection (2) and the owner of the property subject to the false instrument is a public officer or employee, the offense shall be reclassified as follows: (a) In the case of a felony of the third degree, to a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (b) In the case of a felony of the second degree, to a felony of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (4)(a) If a person is convicted of violating subsection (2) and the person committed the offense while 5/24/2016 3:26PM RAS00000199 Statutes & Constitution :View Statutes :Online Sunshine http://www .leg. state. fl. us/Statutes/index. cfin? App _ mode~Display _Stat. .. 37 of62 incarcerated in a jail or correctional institution or while participating in a pretrial diversion program under any form of pretrial release or bond, on probation or parole, or under any postrelease supervision, the offense shall be reclassified as follows: 1. In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 2. In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) If a person's offense has been reclassified pursuant to this subsection, the sentencing court shall issue a written finding that the offense occurred while incarcerated in a jail or correctional institution and direct that a copy of the written finding and judgment of conviction be forwarded to the appropriate state institution or county facility for consideration of disciplinary action and forfeiture of all gain-time or any early release credits accumulated up to the date of the violation. (5) If the person is convicted of violating subsection (2) and the owner of the property covered by the false instrument incurs financial loss as a result of the instrument being recorded in the official record, including costs and attorney fees incurred in correcting, sealing, or removing the false instrument from the official record as described herein, the offense shall be reclassified as follows: (a) In the case of a felony of the third degree, to a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (b) In the case of a felony of the second degree, to a felony of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (6) A person who fraudulently records a claim of lien in the official records pursuant to part I of chapter 713 is subject to the fraud provisions of s. 713.31 and not this section. (7) If a person is convicted of violating this section, the sentencing court shall issue an order declaring the instrument forming the basis of the conviction null and void and may enjoin the person from filing any instrument in an official record absent prior review and approval for filing by a circuit or county court judge. The sentencing court may also order the instrument forming the basis of the conviction sealed from the official record and removed from any applicable electronic database used for recording instruments in the official record. (8)(a) Any person adversely affected by an instrument filed in the official record which contains a materially false, fictitious, or fraudulent statement or representation has a civil cause of action under this section without regard to whether criminal charges are pursued under subsection (2). A notice of lis pendens in accord with s. 48.23 shall be filed which specifically describes the instrument under challenge and the real or personal property affected by the instrument. (b) Upon a finding that the instrument contains a materially false, fictitious, or fraudulent statement or representation such that the instrument does not establish a legitimate property or lien interest in favor of another person: 1. The court shall determine whether the entire instrument or certain parts thereof are null and void ab initio. If the court finds the instrument void in its entirety, it may order the instrument sealed from the official record and removed from any electronic database used for indexing or locating instruments in the official record. The court may also, permanently or for a period of time, enjoin the defendant who filed the instrument or who directed the filer to file the instrument from filing or directing a person to file an instrument in the official records without prior review and approval for filing by a circuit or county court judge, provided that as to third parties who may have given value for an interest described or granted by any instrument filed in violation of the injunction, the instrument shall be deemed validly filed and provides constructive notice, notwithstanding any failure to comply with the terms of the injunction. 5/24/2016 3:26 PM RAS00000200 Statutes & Coustitution :View Statutes : Online Sunshine http:/ /www.l eg.state.fl. us/Statutes/index.cfin? App _ mode~Display _Stat. .. 38 of62 2. Upon a finding of intent to defraud or harass, the court or jury shall award actual damages and punitive damages, subject to the criteria in s. 768.72, to the person adversely affected by the instrument. The court may also levy a civil penalty of $2,500 for each instrument determined to be in violation of subsection (2). 3. The court may grant such other relief or remedy that the court determines is just and proper within its sound judicial discretion. (c) The prevailing party in such a suit is entitled to recover costs and reasonable attorney fees. (d) The custodian of any official record shall, upon payment of appropriate fees, provide a certified copy of the sealed instrument to the party seeking relief under this section for use in subsequent court proceedings; in addressing or correcting adverse effects upon the person's credit or property rights, or reporting the matter for investigation and prosecution; or in response to a subpoena seeking the instrument for criminal investigative or prosecution purposes. (e) Upon request, the custodian of any official record shall, upon payment of appropriate fees, provide a certified copy of the sealed instrument to any federal, state, or local law enforcement agency. (f) If feasible, the custodian of the official record where the instrument is recorded shall record any court order finding that the instrument is null and void in its entirety or in certain parts thereof. (g) An instrument removed from an electronic database used for recording instruments in the pub! ic record pursuant to this section shall be maintained in a manner in which the instrument can be reduced to paper form. (9) A government agency may provide legal representation to a public officer or employee if the instrument at issue appears to have been filed to defraud or harass the public officer or employee in his or her official capacity. If the public officer or employee is the prevailing party, the award of reasonable attorney fees shall be paid to the government agency that provided the legal representation. (10) This section does not apply to the procedures for sealing or expunging criminal history records as provided in chapter 943. History.-s. 1, ch. 2013-228. 817.54 Obtaining of mortgage, mortgage note, promissory note, etc., by false representation.-Any person who, with intent to defraud, obtains any mortgage, mortgage note, promissory note or other instrument evidencing a debt from any person or obtains the signature of any person to any mortgage, mortgage note, promissory note or other instrument evidencing a debt by color or aid of fraudulent or false representation or pretenses, or obtains the signature of any person to a mortgage, mortgage note, promissory note, or other instrument evidencing a debt, the false making whereof would be punishable as forgery, shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 1, ch. 63-142; s. 880, ch. 71-136. 817,545 Mortgage fraud.- (1) For the purposes of the section, the term "mortgage lending process" means the process through which a person seeks or obtains a residential mortgage loan, including, but not limited to, the solicitation, application or origination, negotiation of terms, third-party provider services, underwriting, signing and closing, and funding of the loan. Documents involved in the mortgage lending process include, but are not limited to, mortgages, deeds, surveys, inspection reports, uniform residential loan applications, or other loan applications; appraisal reports; HUD-1 settlement statements; supporting personal documentation for loan applications such as W-2 forms, verifications of income and employment, credit reports, bank statements, tax returns, and payroll stubs; and any required disclosures. 5/24/2016 3:26 PM RAS00000201 Statutes & Constitution :View Statutes: Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index. cfin? App _mode~ Display_ Stat.,. 39 of62 (2) A person commits the offense of mortgage fraud if, with the intent to defraud, the person knowingly: (a) Makes any material misstatement, misrepresentation, or omission during the mortgage lending process with the intention that the misstatement, misrepresentation, or omission will be relied on by a mortgage lender, borrower, or any other person or entity involved in the mortgage lending process; however, omissions on a loan application regarding employment, income, or assets for a loan which does not require this information are not considered a material omission for purposes of this subsection. (b) Uses or facilitates the use of any material misstatement, misrepresentation, or omission during the mortgage lending process with the intention that the material misstatement, misrepresentation, or omission will be relied on by a mortgage lender, borrower, or any other person or entity involved in the mortgage lending process; however, omissions on a loan application regarding employment, income, or assets for a loan which does not require this information are not considered a material omission for purposes of this subsection. (c) Receives any proceeds or any other funds in connection with the mortgage lending process that the person knew resulted from a violation of paragraph (a) or paragraph (b). (d) Files or causes to be filed with the clerk of the circuit court for any county of this state a document involved in the mortgage lending process which contains a material misstatement, misrepresentation, or omission. (3) An offense of mortgage fraud may not be predicated solely upon information lawfully disclosed under federal disclosure laws, regulations, or interpretations related to the mortgage lending process. (4) For the purpose of venue under this section, any violation of this section is considered to have been committed: (a) In the county in which the real property is located; or (b) In any county in which a material act was performed in furtherance of the violation. (5)(a) Any person who violates subsection (2) commits a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (b) Any person who violates subsection (2), and the loan value stated on documents used in the mortgage lending process exceeds $100,000, commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History.-s. 13, ch. 2007-182; s. 2, ch. 2008-80. 817.55 Tourist attraction advertisement; misleading use of the word "free."- (1) It shall be unlawful for any person or persons, including corporations, operating a tourist attraction, event, show, or similar places of business for profit catering to the public to use or advertise in connection therewith the words "free" or "free admission" or any similar words or words of similar or like import and meaning, in a false, misleading, deceptive, or fraudulent manner, calculated to cause or actually causing any member of the public to be misled, deceived or defrauded to his or her detriment. (2) The state attorney for any county in which any violation of this act occurs may enjoin the use of such word or words by temporary and permanent injunction by application to any court of competent jurisdiction. (3) Violations of this act whether or not enjoined as provided herein, shall be punishable as a misdemeanor of the second degree, as provided in s. 775.082 or s. 775.083. History.-s. 1, ch. 63-506; ss. 17, 35, ch. 69-106; s. 881, ch. 71-136; s, 1, ch. 73-283; s. 32, ch. 73-334; s. 1262, ch. 97-102; s. 24, ch. 2001-64. 817.554 Fraudulently offering for sale tour or travel-related services.- 5/24/2016 3 :26 PM RAS00000202 Statutes & Constitution :View Statntes: Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index.cfin? App _ mode~Display _Stat. .. 40 of62 (1) A seller of any tour or travel service, including, but not limited to: (a) A person engaged in the business of selling tours, travel services, or travel-related services; (b) A person who sells tours or travel services in conjunction with the offer of a course of instruction for persons seeking to become travel agents; (c) A person who is not actively engaged in the business of selling tours or travel services but who offers for sale a single tour or a limited number of tours; or (d) The principal of any corporation or partnership engaged in the business of selling tours or travel services, who knowingly makes claims relating to such tours or travel services with the intent to defraud any individual or group of a fee or other valuable consideration is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (2) Any person who. offers educational or training courses relating to the tour or travel service business and who knowingly makes claims relating to such educational or training courses with the intent to defraud any individual of a fee or other valuable consideration is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (3) Any person who offers his or her services as a tour or travel service consultant to anyone engaged in the tour or travel service business and who knowingly makes claims relating to his or her qualifications to provide such consulting services or his or her ability to provide travel-related services with the intent to defraud such person of a fee or other valuable consideration is guilty of a misdemeanor of the second degree, punishable as provided ins. 775,082 or s. 775.083. (4) Any individual or group which meets the standards of organized fraud as defined ins. 817.034 shall be punished as provided ins. 817.034. History.-s. 1, ch. 85-39; s. 1263, ch. 97-102; s. 5, ch. 2010-117. 817.558 Water-treatment devices.- (1) For purposes of this section: (a) "Water·treatment device" means any product, device, or system designed for personal, family, or household use and for which any claim is made that it will improve the quality of water by reducing one or more contaminants through mechanical, physical, chemical, or biological processes or a combination thereof. (b) "Advertisement" means any representation of fact or opinion disseminated to the public in any manner or by any means which is designed to induce, directly or indirectly, any person to enter into any obligation to acquire any title or interest in or to use any water-treatment device. (c) "Misleading" means any direct or indirect misrepresentation or omission of any material fact or circumstance. (2)(a) It is unlawful for any person to make or disseminate any false or misleading advertisement regarding any water-treatment device. (b) It is unlawful for any person who solicits the sale, rental, lease, or order of any water-treatment device to make any false or misleading statement or claim: 1. Regarding contamination problems in tap water; 2. Stating or implying scientific certainty regarding the relationship between acute or chronic illnesses and water quality; 3. Regarding the type and degree of problems caused by water treated in public water-treatment systems; 4. Stating that the water flowing from a water-treatment device is "pure," unless such word is 5/24/2016 3:26 PM RAS00000203 Statutes & Constitution :View Statutes : Online Sunshine http://www.leg. state.f!. us/Statutes/index.cfin? App _mode~Display _Stat. .. 41 of62 reasonably defined; 5. Making undocumented claims about the performance or benefits of a water-treatment device; or 6. Using unauthorized endorsements or testimonials. (3) At the time of or before the order, sale, rental, or lease of any water-treatment device to a consumer, the person soliciting the order, sale, rental, or lease must notify the consumer in clear and conspicuous writing in at least 10-point boldfaced type that operational, maintenance, and replacement requirements are essential for the water-treatment device to perform as represented. In addition to the notification requirement, each water-treatment device must have a label or tag affixed to it or the container in which it is sold or delivered which notifies the consumer that operational, maintenance, and replacement requirements are essential for the water-treatment device to perform as sold. (4) Any person who violates any provision of this section commits a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. History.-s. 9, ch. 91-41; s. 9, ch. 91-68; s.1, ch. 93-43. 817.561 Violations may be enjoined.-ln addition to the punishments provided herein, the state attorneys of the various judicial circuits throughout the state are vested with authority and power to invoke the jurisdiction of courts of equity within their respective judicial circuits to enjoin or obtain other equitable relief against persons violating the provisions of ss. 817.06, 817.061, 817.38-817.44, and 817.55. The prevailing party shall receive court costs and reasonable attorneys' fees, to be deposited in or paid from the general fund. History.-s. 1, ch. 71-233; s. 32, ch. 73-334. 817.5615 Marks required on optical discs; prohibited acts; penalties.- (1) For purposes of this act, the term: (a) "Commercial purposes" means the manufacture of at least 10 of the same or different optical discs in a 180-day period by storing information on the disc for purposes of sale in this state by that person or other persons. (b) "Manufacture" means replication of the physical optical disc or production of the master used in any optical disc replication process, but does not include the manufacture of optical discs for internal use, testing, or review or blank optical discs. (c) "Optical disc" means a disc capable of being read by a laser or other light source on which data is stored in digital form, including, but not limited to, discs known as compact discs, recordable compact discs, and digital video discs. (d) "Identification mark" means the name of the manufacturer and the state in which the disc was manufactured, or a unique identifier that identifies the place where an optical disc was manufactured. (2)(a) Each person who manufactures optical discs for commercial purposes shall permanently mark each manufactured optical disc with an identification mark. The identification mark shall be affixed by molding, die-stamping, etching, or other permanent method in a manner in which it is clearly visible without the aid of magnification or special devices to read the mark. Any person who manufactures optical discs for commercial purposes without complying with this paragraph shall be subject to a fine of up to $5,000 for a first offense and a fine of up to $50,000 for a second or subsequent offense. (b) It is unlawful for any person to buy, sell, receive, transfer, or possess for purposes of sale or rental an optical disc knowing that the identification mark required by this section has been removed, defaced, covered, altered, or destroyed or knowing it was manufactured in this state without the required identification mark or with a false identification mark. Any person who buys, sells, receives, transfers, or possesses for purposes of sale or rental an optical disc knowing that the identification mark required by 5/24/2016 3:26 PM RAS00000204 Statutes & Constitution :View Statutes : Online Sunshine http://www .leg. state. fl. us/Statutes/index. cfm? App _ mode~DispJay _Stat. .. 42 of62 this section has been removed, defaced, covered, altered, or destroyed or knowing it was manufactured in this state without the required identification mark or with a false identification mark commits a misdemeanor of the first degree, punishable as provided ins. 775.082 or by a fine of up to $10,000, or both. (c) It is unlawful for any person to knowingly remove, deface, cover, alter, or destroy the identification mark required by this section. Any person who knowingly removes, defaces, covers, alters, or destroys the identification mark required by this section commits a misdemeanor of the first degree, punishable as provided ins. 775.082 or by a fine of up to $50,000, or both. History.-s. 1, ch. 99·383. 817.562 Fraud involving a security interest.- (1) As used in this section, the terms "proceeds," "security agreement," "security interest," and "secured party" shall be given the meanings prescribed for them in chapter 679. (2) A person is guilty of fraud involving a security interest when, having executed a security agreement creating a security interest in personal property, including accounts receivable, which security interest secures a monetary obligation owed to a secured party, and: (a) Having under the security agreement both the right of sale or other disposition of the property and the duty to account to the secured party for the proceeds of disposition, he or she sells or otherwise disposes of the property and wrongfully and willfully fails to account to the secured party for the proceeds of disposition; or (b) Having under the security agreement no right of sale or other disposition of the property, he or she knowingly secretes, withholds, or disposes of such property in violation of the security agreement. (3) Any person who knowingly violates this section shall be punished as follows: (a) If the value of the property sold, secreted, withheld, or disposed of or the proceeds from the sale or disposition of the property is $300 or more, such person is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) If the value of the property sold, secreted, withheld, or disposed of or the proceeds obtained from the sale or disposition of the property is less than $300, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. History.-s. 1, ch. 79·113; s. 5, ch. 86·161; s. 196, ch. 91-224; s. 1265, ch. 97-102. 817.5621 Unlawful subleasing of a motor vehicle.- (1) It is unlawful for any person who is not a party to a lease contract, conditional sale contract, or security agreement which transfers any right or interest in a motor vehicle to: (a) Obtain or exercise control over the motor vehicle and then sell, transfer, assign, or lease the motor vehicle to another person without first obtaining written authorization from the secured creditor, lessor, or lienholder for the sale, transfer, assignment, or lease if he or she receives compensation or other consideration for the sale, transfer, assignment, or lease of the motor vehicle; or (b) Assist, cause, or arrange the actual or purported sale, transfer, assignment, or lease of the motor vehicle to another person without first obtaining written authorization from the secured creditor, lessor, or lienholder for the sale, transfer, assignment, or lease if he or she receives compensation or other consideration for assisting, causing, or arranging the sale, transfer, assignment, or lease of the motor vehicle. (2) Any person who violates the provisions of this section is guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (3) Notwithstanding any other remedy or relief to which a person is entitled, anyone suffering damage 5/24/2016 3:26 PM RAS00000205 Statutes & Constitution :View Statutes: Online Sunshine http: //www.leg. state. fl. us/Statutes/index.cfln? App _mode~ Display_ Stat.., 43 of62 as a result of a violation of this section may bring an action to recover or obtain actual damages, equitable relief, including, but not limited to, an injunction or restitution of money and property, punitive damages, reasonable attorney's fees and costs, and any other relief the court deems proper. H1story.-s. 2, ch. 88-407; s, 1266, ch. 97-102. 817.563 Controlled substance named or described in s. 893.03; sale of substance in lieu thereof.-lt is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described ins. 893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person who violates this section with respect to: (1) A controlled substance named or described ins. 893.03(1 ), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. History.-s. 1, ch. 81-53; s. 4, ch. 89-281; s. 101, ch. 97-264; s. 7, ch, 99-186; s. 17, ch. 2000-320; s. 7, ch. 2002-78. 817.564 Imitation controlled substances defined; possession and distribution prohibited.- (1) For the purposes of this section, the term "imitation controlled substance" means a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance enumerated in chapter 893, which is subject to abuse, and which: (a) By overall dosage unit appearance, including color, shape, size, markings, and packaging, or by representations made, would cause the likelihood that such a pill, capsule, tablet, or substance will be mistaken for a controlled substance unless such substance was introduced into commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate; or (b) By express or implied representations, purports to act like a controlled substance as a stimulant or depressant of the central nervous system and which is not commonly used or recognized for use in that particular formulation for any purpose other than for such stimulant or depressant effect, unless marketed, promoted, or sold as permitted by the United States Food and Drug Administration. (2) In those instances where the appearance of the dosage unit is not reasonably sufficient to establish that the substance is an imitation controlled substance, the court or authority concerned may consider, in addition to all other logically relevant factors, the following factors as related to "representations made" in determining whether the substance is an imitation controlled substance: (a) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance or its use or effect. (b) Statements made to the recipient that the substance may be resold for inordinate profit. (c) Whether the substance is packaged in a manner normally used for illicit controlled substances. (d) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities. (e) Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to controlled substances or fraud. (f) The proximity of the substances to controlled substances. (3) It is unlawful for any person to manufacture, distribute, sell, give, or possess with the intent to manufacture, distribute, sell, or give an imitation controlled substance. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (4) It is unlawful for any person 18 years of age or over to knowingly sell or distribute an imitation controlled substance to a person under the age of 18 years. Any person who violates this subsection is 5/24/2016 3 :26 PM RAS00000206 Statutes & Constitution :View Statutes : Online Sunshine http://www.! eg.state. fl. us/Statutes/index. cfm? App _ mode~Disp lay_ Stat. .. 44 of62 guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, ors. 775.084. (5) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication or to post or distribute in any public place any advertisement or solicitation with reasonable knowledge that the purpose of the advertisement or solicitation is to promote the distribution of imitation controlled substances. Any person who violates this subsection is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. (6) Civil or criminal liability may not be imposed by virtue of this section against: (a) Any person operating in accordance with the Florida Comprehensive Drug Abuse Prevention and Control Act who manufactures, dispenses, sells, gives, or distributes an imitation controlled substance for use as a placebo by a licensed practitioner in the course of professional practice or research; or (b) A law enforcement officer acting in the officer's official capacity during the course of an active criminal investigation relating to controlled substances which is approved or authorized by the officer's agency or to an informer or third party acting under the direction or control of such an officer as part of an authorized, active criminal investigation relating to controlled substances. History.-s. 1, ch. 85-319; s. 197, ch. 91-224; s. 1, ch. 2001-95. 817.565 Urine testing, fraudulent practices; penalties.- (1) It is unlawful for any person: (a) Willfully to defraud or attempt to defraud any lawfully administered urine test designed to detect the presence of chemical substances or controlled substances. (b) Willfully to manufacture, advertise, sell, or distribute any substance or device which is intended to defraud or attempt to defraud any lawfully administered urine test designed to detect the presence of chemical substances or controlled substances. (2) Any person who violates the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. History.-s. 9, ch. 87-243. 817.566 Misrepresentation of association with, or academic standing at, postsecondary educational institution.-Any person who, with intent to defraud, misrepresents his or her association with, or academic standing or other progress at, any postsecondary educational institution by falsely making, altering, simulating, or forging a document, degree, certificate, diploma, award, record, letter, transcript, form, or other paper; or any person who causes or procures such a misrepresentation; or any person who utters and publishes or otherwise represents such a document, degree, certificate, diploma, award, record, letter, transcript, form, or other paper as true, knowing it to be false, is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083. Individuals who present a religious academic degree from any college, university, seminary, or institution which is not licensed by the Commission for Independent Education or which is not exempt pursuant to the provisions of s. 1005.06 shall disclose the religious nature of the degree upon presentation. H!story.-s. 1, ch. 88-407; s. 1, ch. 89-40; s. 18, ch. 92-321; s. 1267, ch. 97-102; s.1038, ch. 2002-387; s. 159, ch. 2004-5; s. 20, ch. 2004-41. 817.568 Criminal use of personal identification information.- (1) As used in this section, the term: (a) "Access device" means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used 5/24/2016 3:26PM RAS00000207 Statutes & Constitution :View Statutes : Online Sunshine http://www.! eg.state.fl. us/Statutes/ index.cfin? App _mode~Display_ Stat. .. 45 of62 to initiate a transfer of funds, other than a transfer originated solely by paper instrument. (b) "Authorization" means empowerment, permission, or competence to act. (c) "Harass" means to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose. "Harass" does not mean to use personal identification information for accepted commercial purposes. The term does not include constitutionally protected conduct such as organized protests or the use of personal identification information for accepted commercial purposes. (d) "Individual" means a single human being and does not mean a firm, association of individuals, corporation, partnership, joint venture, sole proprietorship, or any other entity. (e) "Person" means a "person" as defined ins. 1.01 (3). (f) "Personal identification information" means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any: 1. Name, postal or electronic mail address, telephone number, social security number, date of birth, mother's maiden name, official state-issued or United States-issued driver license or identification number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food assistance account number, bank account number, credit or debit card number, or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized electronic use of such card; 2. Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; 3. Unique electronic identification number, address, or routing code; 4. Medical records; 5. Telecommunication identifying information or access device; or 6. Other number or information that can be used to access a person's financial resources. (g) "Counterfeit or fictitious personal identification information" means any counterfeit, fictitious, or fabricated information in the similitude of the data outlined in paragraph (f) that, although not truthful or accurate, would in context lead a reasonably prudent person to credit its truthfulness and accuracy. (2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning another person without first obtaining that person's consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (b) Any person who willfully and without authorization fraudulently uses personal identification information concerning a person without first obtaining that person's consent commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $5,000 or more or if the person fraudulently uses the personal identification information of 10 or more persons, but fewer than 20 persons, without their consent. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years' imprisonment. (c) Any person who willfully and without authorization fraudulently uses personal identification information concerning a person without first obtaining that person's consent commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $50,000 or more or if the person fraudulently uses the personal identification information of 20 or more persons, but fewer than 30 persons, without their consent. Notwithstanding any other provision 5/24/20 !6 3:26 PM RAS00000208 Statutes & Constitution :View Statutes: Online SllllShine http://www. I eg.state.fl. us/Statutes/index. cfm? App _ mode~Display _Stat. .. 46 of62 of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 5 years' imprisonment. If the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $100,000 or more, or if the person fraudulently uses the personal identification information of 30 or more persons without their consent, notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 10 years' imprisonment. (3) Neither paragraph (2)(b) nor paragraph (2)(c) prevents a court from imposing a greater sentence of incarceration as authorized by law. If the minimum mandatory terms of imprisonment imposed under paragraph (2)(b) or paragraph (2)(c) exceed the maximum sentences authorized under s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment under paragraph (2)(b) or paragraph (2)(c) are less than the sentence that could be imposed under s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, the sentence imposed by the court must include the mandatory minimum term of imprisonment as required by paragraph (2)(b) or paragraph (2)(c). (4) Any person who willfully and without authorization possesses, uses, or attempts to use personal identification information concerning a person without first obtaining that person's consent, and who does so for the purpose of harassing that person, commits the offense of harassment by use of personal identification information, which is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (5) If an offense prohibited under this section was facilitated or furthered by the use of a public record, as defined ins. 119.011, the offense is reclassified to the next higher degree as follows: (a) A misdemeanor of the first degree is reclassified as a felony of the third degree. (b) A felony of the third degree is reclassified as a felony of the second degree. (c) A felony of the second degree is reclassified as a felony of the first degree. For purposes of sentencing under chapter 921 and incentive gain·time eligibility under chapter 944, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 of the felony offense committed, and a misdemeanor offense that is reclassified under this subsection is ranked in level 2 of the offense severity ranking chart in s. 921.0022. (6) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual who is younger than 18 years of age or 60 years of age or older without first obtaining the consent of that individual or of his or her legal guardian commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (7) Any person who is in the relationship of parent or legal guardian, or who otherwise exercises custodial authority over an individual who is younger than 18 years of age or 60 years of age or older, who willfully and fraudulently uses personal identification information of that individual commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (8)(a) Any person who willfully and fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning a deceased individual or dissolved business entity commits the offense of fraudulent use or possession with intent to use personal identification information of a deceased individual or dissolved business entity, a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (b) Any person who willfully and fraudulently uses personal identification information concerning a deceased individual or dissolved business entity commits a felony of the second degree, punishable as 5/24/2016 3 ·.26 PM RAS00000209 Statutes & Constitution :View Statutes: Online Sunshine http://www.l eg.state.fl. us/Statutes/index.cfin? App _ mode~Display _Stat. .. 47 of62 provided ins. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of injury or fraud perpetrated is $5,000 or more, or if the person fraudulently uses the personal identification information of 10 or more but fewer than 20 deceased individuals or dissolved business entities. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years' imprisonment. (c) Any person who willfully and fraudulently uses personal identification information concerning a deceased individual or dissolved business entity commits the offense of aggravated fraudulent use of the personal identification information of multiple deceased individuals or dissolved business entities, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of injury or fraud perpetrated is $50,000 or more, or if the person fraudulently uses the personal identification information of 20 or more but fewer than 30 deceased individuals or dissolved business entities. Notwithstanding any other provision of law, the court shall sentence any person convicted of the offense described in this paragraph to a minimum mandatory sentence of 5 years' imprisonment. lf the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $100,000 or more, or if the person fraudulently uses the personal identification information of 30 or more deceased individuals or dissolved business entities, notwithstanding any other provision of law, the court shall sentence any person convicted of an offense described in this paragraph to a mandatory minimum sentence of 10 years' imprisonment. (9) Any person who willfully and fraudulently creates or uses, or possesses with intent to fraudulently use, counterfeit or fictitious personal identification information concerning a fictitious person, or concerning a real person without first obtaining that real person's consent, with intent to use such counterfeit or fictitious personal identification information for the purpose of committing or facilitating the commission of a fraud on another person, commits the offense of fraudulent creation or use, or possession with intent to fraudulently use, counterfeit or fictitious personal identification information, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (10) Any person who commits an offense described in this section and for the purpose of obtaining or using personal identification information misrepresents himself or herself to be a law enforcement officer; an employee or representative of a bank, credit card company, credit counseling company, or credit reporting agency; or any person who wrongfully represents that he or she is seeking to assist the victim with a problem with the victim's credit history shall have the offense reclassified as follows: (a) In the case of a misdemeanor, the offense is reclassified as a felony of the third degree. (b) In the case of a felony of the third degree, the offense is reclassified as a felony of the second degree. (c) In the case of a felony of the second degree, the offense is reclassified as a felony of the first degree. (d) In the case of a felony of the first degree or a felony of the first degree punishable by a term of imprisonment not exceeding life, the offense is reclassified as a life felony. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the felony offense committed, and a misdemeanor offense that is reclassified under this subsection is ranked in level 2 of the offense severity ranking chart. (11) A person who willfully and without authorization fraudulently uses personal identification 5/24/2016 3:26PM RAS00000210 Statutes & Constitution :View Statutes : Online Sunshine http:/ /www.leg. state.fl. us/Statutes/index. cfin? App _mode~Display _Stat. .. 48 of62 information concerning an individual who is 60 years of age or older; a disabled adult as defined in s. 825.101; a public servant as defined ins. 838.014; a veteran as defined ins. 1.01; a first responder as defined in s. 125.01 045; an individual who is employed by the State of Florida; or an individual who is employed by the Federal Government without first obtaining the consent of that individual commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. (12) In addition to any sanction imposed when a person pleads guilty or nolo contendere to, or is found guilty of, regardless of adjudication, a violation of this section, the court shall impose a surcharge of $1,001. (a) The sum of $500 of the surcharge shall be deposited into the Department of Law Enforcement Operating Trust Fund for the department to provide grants to local law enforcement agencies to investigate offenses related to the criminal use of personal identification information as provided ins. 943.0412. (b) The sum of $250 of the surcharge shall be deposited into the State Attorneys Revenue Trust Fund for the purpose of funding prosecutions of offenses relating to the criminal use of personal identification information. The sum of $250 of the surcharge shall be deposited into the Public Defenders Revenue Trust Fund for the purposes of indigent criminal defense related to the criminal use of personal identification information. (c) The clerk of the court shall retain $1 of each $1,001 surcharge that he or she collects as a service charge of the clerk's office. (d) The surcharge may not be waived by the court. In the event that the person has been ordered to pay restitution in accordance with s, 775.089, the surcharge shall be included in a judgment. (13) The prosecutor may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of that person's accomplices, accessories, coconspirators, or principals or of any other person engaged in fraudulent possession or use of personal identification information. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance. (14) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of this state or any of its political subdivisions, of any other state or its political subdivisions, or of the Federal Government or its political subdivisions, (15)(a) In sentencing a defendant convicted of an offense under this section, the court may order that the defendant make restitution under s. 775.089 to any victim of the offense. In addition to the victim's out-of-pocket costs, restitution may include payment of any other costs, including attorney's fees incurred by the victim in clearing the victim's credit history or credit rating, or any costs incurred in connection with any civil or administrative proceeding to satisfy any debt, lien, or other obligation of the victim arising as the result of the actions of the defendant. (b) The sentencing court may issue such orders as are necessary to correct any public record that contains false information given in violation of this section. (16) Prosecutions for violations of this section may be brought on behalf of the state by any state attorney or by the statewide prosecutor. (17) The Legislature finds that, in the absence of evidence to the contrary, the location where a victim gives or fails to give consent to the use of personal identification information is the county where the victim generally resides. 5/24/2016 3:26PM RAS00000211 Statutes & Constitution :View Statutes: Online Sunshine http:/ /www.leg.state.fl. us/Statutes/index.cfin? App _mode~ Display_ Stat. .. 49 of62 (18) Notwithstanding any other provision of law, venue for the prosecution and trial of violations of this section may be commenced and maintained in any county in which an element of the offense occurred, including the county where the victim generally resides. (19) A prosecution of an offense prohibited under subsection (2), subsection (6), or subsection (7) must be commenced within 3 years after the offense occurred. However, a prosecution may be commenced within 1 year after discovery of the offense by an aggrieved party, or by a person who has a legal duty to represent the aggrieved party and who is not a party to the offense, if such prosecution is commenced within 5 years after the violation occurred. History.-s. 1, ch. 99·335; s. 1, ch. 2001-233; s. 1, ch. 2003-71; s. 1, ch. 2005-229; s. 41, ch. 2010·209; s. 2, ch. 2014·200; s. 17, ch. 2015-166. 817.5685 Unlawful possession of the personal identification information of another person.- (1) As used in this section, the term "personal identification information" means a person's social security number, official state-issued or United States-issued driver license or identification number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food assistance account number, bank account number, credit or debit card number, and medical records. (2) It is unlawful for a person to intentionally or knowingly possess, without authorization, the personal identification information of another person in any form, including, but not limited to, mail, physical documents, identification cards, or information stored in digital form. (3)(a) A person who violates subsection (2) and in doing so possesses the personal identification information of four or fewer persons commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (b)1. Proof that a person used or was in possession of the personal identification information of five or more individuals, unless satisfactorily explained, gives rise to an inference that the person who used or was in possession of the personal identification information did so knowingly and intentionally without authorization. 2. A person who violates subsection (2) and in doing so possesses the personal identification information of five or more persons commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (4) Subsection (2) does not apply to: (a) A person who is the parent or legal guardian of a child and who possesses the personal identification information of that child. (b) A person who is the guardian of another person under chapter 744 and who is authorized to possess the personal identification information of that other person and make decisions regarding access to that personal identification information. (c) An employee of a governmental agency who possesses the personal identification information of another person in the ordinary course of business. (d) A person who is engaged in a lawful business and possesses the personal identification information of another person in the ordinary course of business. (e) A person who finds a card or document issued by a governmental agency that contains the personal identification information of another person and who takes reasonably prompt action to return that card or document to its owner, to the governmental agency that issued the card or document, or to a law enforcement agency. (5) It is an affirmative defense to an alleged violation of subsection (2) if the person who possesses the personal identification information of another person: 5/24/2016 3:26 PM RAS00000212 S ta tutes & Constituti on :Vi ew Statute s : O nl ine Suns hine http:/ /www.leg.state. fl . us /Sta tutes/i nde x.c fin? App _ mo d e=D is p lay _S ta t. .. 50 of 62 (a ) Did so under the reasonable belief that such poss ession was au t horized by l aw or by the co nsent of the other person; or (b) Obtained that personal identification information from a foru m or res ource that is op en or available to the general public or from a public record . (6) This section does not preclude pros ecution for the unlaw ful pos sess i on of perso nal id entificat i on information pursuant to s. 817.568 or any other law. History.-s. 1, c h. 2013-242. 817.569 Criminal use of a public record or public records information; providing false information; penalties.-A person who knowingly uses any publi c reco r d, as defined ins. 1 19 .01 1, w ho knowingly uses information obtainable only through suc h public r ecord , or who knowingl y prov ides f al se information that becomes part of a public record to facilitate or further the commission of: (1) A misdemeanor of the first degree, commits a misdemeanor of the first degree, pun ishable as prov ided in s. 775 .082 or s. 775 .083. (2) A felony, commits a felony of the third degree, punishable as prov ided in s. 775.082, s. 775.083, or s. 775.084. History.-s . 1, ch. 2002-284 ; s. 18 , ch. 2 015 -166. 817.57 Short title. 817.58 Definitions. PART II CREDIT CARD CRIMES 817.59 False statement as to financial condition or identity. 817.60 Theft; obtaining credit card through fraudulent mean s. 817 .61 Fraudulent use of credit cards. 817 .611 Traffic in counterfeit credit cards . 817.612 Expired or rev oked credit cards. 817.62 Fraud by person authorized to provide good s or servi ces. 817.625 Use of scanning device or reencoder to defr aud; penalt ies. 817.631 Po ssession and transfer of credit-card-making equipment. 817 .64 Receipt of money, etc., obtained by fraudulent use of credit cards. 817.645 Alteration of credit card inv oi c e; penalties . 817 .646 Credit card lists prohibited ; penalty. 817.65 Defenses not available. 817.66 Presumpti ons . 817.67 Penalties. 817.68 Part II not exclusive. 817.685 Credit card transaction records . 817.57 Short title.-Part II of this chapter shall be known and ma y be cited as the 1967 "State Credit Card Crime Act." History.-s. 13 , ch . 67 -340. 817.58 Definitions.-As used in ss. 817.57-817 .685: (1) "Acqui r er" means a busin ess organization , gov ernmental entity, fi nan cial institution, or an agent of a business organi z ation , go v ernmental entity, or financial institution th at authorizes a me rch ant to 5/24/2 0 16 3 :26 PM RAS00000213 Statutes & Constitution :Search Statutes : Online Sunshine http:/ /www.leg.state.fl. us/statutes/index. cfin? App _ mode~Display _Stat. .. 1 of4 Select Year: . 2015 Go The 2015 Florida Statutes Title XLVI CRIMES 812.014 Chapter 812 THEFT, ROBBERY, AND RELATED CRIMES Theft.- View Entire Chapter (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. (b) Appropriate the propeFty to his or her own use or to the use of any person not entitled to the use of the property. (2)(a)1. If the property stolen is valued at $100,000 or more or is a semitrailer that was deployed by a law enforcement officer; or 2. If the property stolen is cargo valued at $50,000 or more that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock; or 3. If the offender commits any grand theft and: a. In the course of committing the offense the offender uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense and thereby damages the real property of another; or b. In the course of committing the offense the offender causes damage to the real or personal property of another in excess of $1,000, the offender commits grand theft in the first degree, punishable as a felony of the first degree, as provided ins. 775.082, s. 775.083, or s. 775.084. (b)1. If the property stolen is valued at $20,000 or more, but less than $100,000; 2. The property stolen is cargo valued at less than $50,000 that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock; 3. The property stolen is emergency medical equipment, valued at $300 or more, that is taken from a facility licensed under chapter 395 or from an aircraft or vehicle permitted under chapter 401; or 4, The property stolen is law enforcement equipment, valued at $300 or more, that is taken from an authorized emergency vehicle, as defined ins. 316.003, the offender commits grand theft in the second degree, punishable as a felony of the second degree, as provided in s. 775.082, s. 775,083, or s. 775.084. Emergency medical equipment means mechanical or electronic apparatus used to provide emergency services and care as defined in s. 395.002(9) or to treat medical emergencies. Law enforcement equipment means any property, device, or apparatus used by any law enforcement officer as defined ins. 943.10 in the officer's official business. However, if the property is stolen within a county that is subject to a state of emergency declared by the Governor under chapter 252, the theft is committed after the declaration of emergency is made, and the perpetration of the theft is facilitated by conditions arising from the emergency, the theft is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this paragraph, the term "conditions arising 5/24/2016 3:06PM RAS00000214 Statutes & Constitution :Search Statutes: Online Sunshine http://www .leg.state .fl. us/statutes/ index.cfin? App _ rnode~Disp lay_ Stat. .. 2 of4 from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this paragraph is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed. (c) It is grand theft of the third degree and a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084, if the property stolen is: 1. Valued at $300 or more, but less than $5,000. 2. Valued at $5,000 or more, but less than $10,000. 3. Valued at $10,000 or more, but less than $20,000. 4. A will, codicil, or other testamentary instrument. 5. A firearm. 6. A motor vehicle, except as provided in paragraph (a). 7. Any commercially farmed animal, including any animal of the equine, bovine, or swine class or other grazing animal; a bee colony of a registered beekeeper; and aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $10,000 fine shall be imposed. 8. Any fire extinguisher. 9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit. 10. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d). 11. Anystopsign. 12. Anhydrous ammonia. 13. Any amount of a controlled substance as defined in s. 893.02. Notwithstanding any other law, separate judgments and sentences for theft of a controlled substance under this subparagraph and for any applicable possession of controlled substance offense under s. 893.13 or trafficking in controlled substance offense under s. 893.135 may be imposed when all such offenses involve the same amount or amounts of a controlled substance. However, if the property is stolen within a county that is subject to a state of emergency declared by the Governor under chapter 252, the property is stolen after the declaration of emergency is made, and the perpetration of the theft is facilitated by conditions arising from the emergency, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property is valued at $5,000 or more, but less than $10,000, as provided under subparagraph 2., or if the property is valued at $10,000 or more, but less than $20,000, as provided under subparagraph 3. As used in this paragraph, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or the response time for first responders or homeland security personnel. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this paragraph is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed. (d) It is grand theft of the third degree and a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084, if the property stolen is valued at $100 or more, but less than $300, and is taken from a dwelling as defined ins. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 81 0.09(1 ). (e) Except as provided in paragraph (d), if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft of the first degree, punishable as a misdemeanor of the first 5/24/2016 3:06PM RAS00000215 Statutes & Constitution :Search Statutes : Online Sunshine http ://www.leg.state.fl.us/ statutes/index. cfm? App _mode~Display _Stat. .. 3 of4 degree, as provided ins. 775.082 or s. 775.083. (3)(a) Theft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree, punishable as provided ins. ??5.082 or s. 775.083, and as provided in subsection (5), as applicable. (b) A person who commits petit theft and who has previously been convicted of any theft commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (c) A person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. (d)1. Every judgment of guilty or not guilty of a petit theft shall be in writing, signed by the judge, and recorded by the clerk of the circuit court. The judge shall cause to be affixed to every such written judgment of guilty of petit theft, in open court and in the presence of such judge, the fingerprints of the defendant against whom such judgment is rendered. Such fingerprints shall be affixed beneath the judge's signature to such judgment. Beneath such fingerprints shall be appended a certificate to the following effect: "I hereby certify that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, , and that they were placed thereon by said defendant in my presence, in open court, this the dayof ,~." Such certificate shall be signed by the judge, whose signature thereto shall be followed by the word "Judge." 2. Any such written judgment of guilty of a petit theft, or a certified copy thereof, is admissible in evidence in the courts of this state as prima facie evidence that the fingerprints appearing thereon and certified by the judge are the fingerprints of the defendant against whom such judgment of guilty of a petit theft was rendered. (4) Failure to comply with the terms of a lease when the lease is for a term of 1 year or longer shall not constitute a violation of this section unless demand for the return of the property leased has been made in writing and the lessee has failed to return the property within 7 days of his or her receipt of the demand for return of the property. A demand mailed by certified or registered mail, evidenced by return receipt, to the last known address of the lessee shall be deemed sufficient and equivalent to the demand having been received by the lessee, whether such demand shall be returned undelivered or not. (5)(a) No person shall drive a motor vehicle so as to cause it to leave the premises of an establishment at which gasoline offered for retail sale was dispensed into the fuel tank of such motor vehicle unless the payment of authorized charge for the gasoline dispensed has been made. (b) In addition to the penalties prescribed in paragraph (3)(a), every judgment of guilty of a petit theft for property described in this subsection shall provide for the suspension of the convicted person's driver license. The court shall forward the driver license to the Department of Highway Safety and Motor Vehicles in accordance with s. 322.25. 1. The first suspension of a driver license under this subsection shall be for a period of up to 6 months. 2. The second or subsequent suspension of a driver license under this subsection shall be for a period of 1 year. (6) A person who individually, or in concert with one or more other persons, coordinates the activities of one or more persons in committing theft under this section where the stolen property has a value in excess of $3,000 commits a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. History,-s. 4, ch. 77-34Z; s. 1, ch. 78-348; s. 1, ch. 79-124; s. 1, ch. 80-389; s. 1, ch. 8Z-164; s. 1, ch. 86-161; s.1, ch. 5/24/2016 3:06PM RAS00000216 Statutes & Constitution :Search Statutes : Online Sunshine http ://www.leg.state .fl. us/ statutes/index.cfm? App _mode=Display _Stat. .. 4 of4 87-376; s.1, ch. 88-3t2; s. 8, ch. 90-92; s.1, ch. 92-79; s. 9, ch. 95-184; s. 30, ch. 96-247; s. 3, ch. 96-260; s. 49, ch. 96-388; s. 1819, ch. 97-102; s. 102, ch. 99-3; s. 36, ch. 99-6; ss. 67, 79, ch. 99-248; s. 2, ch. 2001-115; s. 1, ch. 2003-t5; s. 2, ch. 2004-341; s. 1, ch. 2006-51; s. 2, ch. 2007-115; s. 1, ch. 2007-177; s. 206, ch. 2007-230; s. 22, ch. 2011-141; s. 62, ch. 2011-206. Copyright© 1995-2016 The Florida Legislature • Privacy Statement • Contact Us 5/24/2016 3:06 PM RAS00000217 Case 9 :15-cv-80182 -KAM Document 54 Entered on FLSD Docket 07/21 /2016 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO: 9:15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and W ANTMAN GROUP, INC., a domestic company on its own behalf and on be half of those companies similarly situated, Plaintiff, v . MARTIN E . O'BOYLE, an individual, CHRlSTOPHER O'HARE, an individual , WILLIAM RING, an individual, JONATHAN R . O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOV ANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC ., CRO AVIATION, TNC ., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC ., PUBLIC AWARENESS INSTITUTE, INC ., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS , LLC , STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC., Defendants. _________________________________ / MOTION FOR SANCTIONS CLASS ACTION Christopher F. O'Hare ("O'Hare"), through his undersigned attorney, pursuant to the Federal Rule s of Civil Procedure of the Southern District of Florida, files this Motion for Sanctions . BACKGROUND 1. On February 12,2015, Plaintiffs Town of Gulf Stream ("Gulf Stream") and Wantman Group , Inc. ("Wantrnan") filed their Class Action Complaint, asserting a singl e count under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, against twenty separate Page 1 of 14 RAS00000218 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 2 of 14 defendants, including O'Hare (the "Class Action Complaint") [D.E. 1.] and the Exhibits [D .E. 4]. 2. On March 9, 2015 , Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer filed their Motion to Dismiss Plaintiffs' Class Action Complaint and Memorandum in Support Thereof ("Attorneys' Motion to Dismiss") [D.E. 9.] 3. On March 13, 2015, Defendants Martin E. O'Boyle, Airline Highway LLC, Commerce Group Inc., GC Acquisition Co. Inc., CRO Aviation Inc., Asset Enhancement Inc., Commerce Realty Group Inc., and Commerce Group Inc. filed their Motion to Dismiss Class Action Complaint and Incorporated Memorandum ofLaw ("M. O'Boyle Motion to Dismiss") [D.E. 10]. 4 . On March 16, 2015, Defendants Denise DeMartini, Citizens Awareness Foundation Inc.("CAFI"), Our Public Records LLC, Stop Dirty Government LLC, and Public Awareness Institute, Inc. filed their Notice of Joinder in Motion to Dismiss Class Action Complaint (''Notice of Joinder") [D.E. 12]. 5. On March 16, 2015, Defendants William Ring, Jonathan O'Boyle, and The O'Boyle Law Firm, P.C. filed their Notice of Joinder in Motion to Dismiss Class Action Complaint ("Law Firm Notice of Joinder") [D.E. 13.] 6 . On March 18, 2015, Defendant O'Hare fi led his Notice of Joinder in Motion to Dismiss Class Action Complaint ("O'Hare Notice of Joinder") [D.E. 14.] 7. On June 30, 2015, the Town's RICO complaint against O'Hare and others was dismissed, wherein this Court found that: The Complaint fails not due to a lack of finesse in pleading; rather, it fails because on the most fundamental level, the entire factual underpinning of P laintiffs' case cannot, under any circumstances, constitute a RICO violation. [emphasis added] 8. This Court a lso found that the public records requests could not constitute a predicate act under RICO because the R e cords Requestors "had the absolute right under current Florida law to file public record requests and then file lawsuits if the requests went unanswered." [D.E. 14.]. This Court further recognized that "the motive for making a public record request is irrelevant under Page 2 of14 RAS00000219 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 3 of 14 Florida law" and that "someone requesting access to or copies of public records may not be required to disclose background information such as a name or address unless the custodian is required by law to obtain the information." Id. Again, this Court found that "the entire factual underpinning of Plaintiffs ' case cannot, under any circumstances, constitute a RICO violation." [D .E. 48.] 9. On August 20,2015, Despite the admonishment of the Federal District Court, Plaintiffs Gulf Stream and the Wantman Group filed its Appeal and Brief to the US Court of Appeals for the Eleventh Circuit. [D.E. 49] 10. On June 21 , 2016, the US Court of Appeals for the Eleventh Circuit, issued an opinion 9No 15- 13433), wherein the Court affirmed the dismissal of the Plaintiffs Complaint, stating that "the allegations do not support a RICO claim under [the Court's] precedent." See attached Exhibit "A". INCLUDING O'HARE IN THE RICO CLASS ACTION COMPLAINT 11. A review of the omnibus allegations made by the Plaintiffs in the Class Action Complaint [D .E.l] and the Exhibits [D.E. 4] clearly reflect that the Defendant O'Hare has never made a public records complaint against any entity other than the Town of Gulf Stream. Additionally , no evidence of any involvement of O'Hare with any of the other Defendants was cited in the Class Action Complaint. Accordingly he was not a proper Defendant in this lawsuit. 12. A review of the omnibus allegations made by the Plaintiffs in the Class Action Complaint [D.E.1] and the Exhibits [D.E. 4] reflects Defendant O'Hare has never been involved with any of the other Defendants in any public records complaints. The only similarity is that O'Hare is also a client of the O'Boyle Law Firm who are handling a number of his public records lawsuits against the Plaintiff Gulf Stream. No other clients of the O'Boyle Law Firm were included as Defendants in the Class Action Complaint -only O'Hare. 13. Plaintiff Gulf Stream, has made multiple threats against O'Hare all prior to the filing of the Complaint, where Plaintiff Gulf Stream, either through Robert Sweetapple , their attorney, or Page 3 of 14 RAS00000220 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 4 of 14 Scott Morgan, the Town Mayor, has demanded that Defendant O'Hare di smiss ALL of his pending lawsuits against Plaintiff Gulf Stream, including complaints regarding Gulf Stream's violations of O'Hare's federal civil rights and Gulf Stream's violations of state law, lawsuits that have nothing to do with public records requests, nor do they involve other alleged class victims. The Town's bottom line -unless Defendant O'Hare withdrew ALL his pending lawsuits against Plaintiff Gulf Stream, then Gulf Stream would include O'Hare as a co-defendant in the filing of the Class Action Complaint [D.E . 1]. Despite the fact that the Town and its attorneys were privy to exculpatory evidence and Plaintiff O'Hare's pleadings that he should not be included in the Class Action Complaint [D .E. 1 ], the Town still included him. Instances of such extortion by the Town include, but are not limited to, the following: (a) Numerous threats and intimidation against O'Hare -again, all before the Complaint was filed -by the Defendant's attorney, Sweetapple, or the Town Mayor, Morgan, telling O'Hare that he would need to cooperate with the Town in their RICO action against O'Boyle, et al, or he would be included in the Town's RICO action. They did this despite O'Hare's repeated protestations that he had nothing to do with O'Boyle or CAFI in their public record request filings. There were several such meetings -on July 24, 2014, August 12, 2014 and September 3, 2014. (b) On June 24, 2016, Sweetapple submitted an Affidavit to the Federal Court in Case No. 9-14-cv-81250, wherein he detailed his discussions with Joel Chandler, the Town's "star witness" with regard to the filling of their RICO Class Action Complaint, as well as several discussions with O'Hare and his attorneys prior to the filing of the RICO Class Action Complaint. See attached highlighted Exhibit "B". In that affidavit, Sweetapple acknowledges that "[he] advised Mr. Hanna [O'Hare's attorney] that the Town was investigating and considering a class action lawsuit against Mr. O'Boyle and all others involved in the scheme described by Mr. Chandler during his Sworn Statement under the civil provisions of Florida's Racketeer Influenced and Corrupt Organizations Act ("RICO Page 4 of14 RAS00000221 Case 9:15-cv-80182 -KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 5 of 14 Act"). Sweetapple also detailed in his affidavit discussions at a subsequent September 3, 2014 meeting with O'Hare and his counsel, Mark Hanna ("Hanna") and Louis Roeder ("Roeder"), and stated that "[he, Sweetapple] summarized the information [he] obtained from Chandler. [He] further stated that based upon this information, the Town may pursue a civil RICO lawsuit against Mr. O'Boyle and others involved in this alleged scheme." Yet according to an e-mail from Chandler to O'Hare's counsel, dated November 17, 2014, and shared immediately thereafter with the Town Commission, Chandler states "Lest there be any doubts about my feelings on this issue, I believe [O'Hare] has done nothing wrong and that he had nothing to do with the RICO allegations. I believe (and have stated to Sweetapple and O'Conner) that the Town should concede to [O'Hare's] demand and be done with it. [O'Hare] is a victim of the Town's foolishness." See attached Exhibit "C". This is further supported by Chandler's deposition of February 24, 2016 (see attached composite of excerpts as Exhibit "D"), wherein he states, " .. the Town going after Chris 0' Hare, I completely disagree with that." pg 17 3, lines 14-15. "I' m very confident that I expressed to Bob [Sweetapple] and to Joann 0' Connor, my disappointment and concern that they were involving Chris O'Hare. I have been, I think, very clear with everybody that I have ever talked to about this issue, that I think that' s ill advised, unfair. I don' t think he' s the bad guy here at all." pg 249, lines 6-12. It's obvious that while Sweetapple professed that he relied upon statements by Chandler to make his RICO Class Action Complaint, he fully ignored statements Chandler made with regard to O'Hare -statements that confirmed O'Hare was NOT involved in any supposed RICO scheme. Clearly, Sweetapple included O'Hare in the RICO Class Action Complaint, deliberately ignoring excul patory statements by hi s star witness, for the sole purpos e of pressuring O'Hare to drop ALL his lawsuits against the Town or humiliating O'Hare by simply including him in the RICO C lass Action Complaint. Where's the good faith in that? Page 5 of14 RAS00000222 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 6 of 14 (c) On July 18, 2016, O'Hare submitted an Affidavit as a non-party to the Federal Court in a separate Case No. 9-14-cv-81250, wherein he detailed several portions of the supposedly confidential September 3, 2014 meeting described by Sweetapple in his earlier affidavit. See attached Exhibit "E". In that affidavit, O'Hare recounts how "Sweetapple said that the Town was consulting with Gerry Richman, an expert on RICO, who was building a case against Martin O'Boyle. Sweetapple said that they already had a 40-page 'indictment' ready to go; and that the State Attorney's office was investigating as well. It was clear to me that Sweetapple was threatening criminal action against me . When I asked if Richman was working for the Town, Sweetapple said Richman was "co- counsel" and was working for him, Sweetapple." [emphasis added] It's clear that the representations by Sweetapple and Morgan to O'Hare and his counsel, Hanna and Roeder, was that he, Sweetapple, was responsible for manufacturing the RICO complaint and both Sweetapple and Morgan were responsible for including O'Hare in it. (d) On October 10,2014 the Town Commission ofthe Town of Gulf Stream met to consider filing a RICO action and retaining special counsel to represent the Town (Agenda Item X. A. -see attached Exhibit "F"). During the consideration Attorney Gerry Richman stated he believed the best way to counteract what the Town was going thru is to file a RICO action in Federal Court. Mayor Morgan observed that he believed the RICO lawsuit would put a stop to the individual lawsuits by O 'Hare. There can be no doubt that Plaintiff included O'Hare in the RICO lawsuit for the singular purpose of "counteracting" his lawsuits and record reque sts. (e) During that same October 10, 20 16 meeting of the Town Commission, Richman confirmed to the Commiss ion that the prevailing party would get attorney fees. The Commission therefore voted to retain Richman and s ubsequently filed the RICO complaint against O'Hare relying upon Richman's opinion that the prevailing party (in thi s case O 'Hare?) would be entitled to attorney fees . Page 6 of 14 RAS00000223 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 7 of 14 (f) On November 14,2014 , O'Hare read a speech before the Gulf Stream Town Commission explaining that he had been threatened with a RICO action if he did not dismiss ALL his cases against the Town, which he titled "I will not be silenced!" See copy attached as Exhibit "G". In that speech O'Hare notified the Commission that he was threatened by Town Counsel and said , "I have been warned by Mayor Morgan through his attorney that I must withdraw ALL my complaints or be drawn into a long and expensive RICO lawsuit. That is extortion and I will not be silenced. This RICO accusation is untrue, but it is a ringing bell that cannot be unrung. It is a callous and malicious attempt to destroy my character and it will not go unpunished." Obviously, the Town was on notice to investigate O'Hare's accusations. They did not. (e) On November 17, 2014 , in response to O'Hare's speech before the Town Commission, Joel Chandler, Sweetapple's supposed "star witness" in his threatened RICO action against O'Hare, wrote an e-mail to Roeder stating that he believed "Chris has done nothing wrong and that the he has nothing to do with the RICO allegation." He went on to say that he "believ[ed] (and [had] stated to Sweetapple and O'Conner) that the Town should concede to [O'Hare's] demands and be done with it;" going on to say that he thought "Chris is a victim of the Town's foolishness." See attached Exhibit "C". O'Hare immediately shared this e-mail with the Town Commission. It was clear that Sweetapple was supposedly relying on Chandler's testimony to make his RICO Class Action Complaint; yet he chose to ignore that same testimony when he was informed that O'Hare had nothing to do with O'Boyle or any possible RICO action. It's clear that it ws Sweetapple and Morgan who decided to file the RICO Class Action Complaint against O'Hare. It's also clear that Sweetapple was deceptive in his affidavit when he said he made O'Hare aware of what Chandler had told him -apparently not everything. (f) According to Chandler's February 24, 2016 deposition , he "thought the RICO lawsuit was Page 7 of14 RAS00000224 Case 9 :15-cv-80182 -KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 8 of 14 ill advised for a whole host of reasons , not the least of which is making a public records request, in and of itself, is not a criminal act. "pg 172, line 22-25 "I don' t think that making a public records request in and of itself, or even making thousands of public records requests on the Town of Gulf Stream is an illegal action ." pg 178, lines 4-7. It's clear that Sweetapple, attorney for the Town, the self-proclaimed lead in the Town's RICO action, was well aware that the public records requests made by O'Boyle, CAFI, and especially O'Hare, was not a predicate to a RICO action. (g) Finally, at a recent July 8, 2016 Town Commission Meeting, Mayor Morgan stated, "I want to just give you an update on the litigation status. The RICO action is finished ... So, the effect of the RICO action was exactly what we tried to accomplished and that was to stop those lawsuits. Public record requests themselves cannot be stopped by lawsuits; they continue and they continue at a fairly high rate, not like it used to be but they still continue." See YouTube video, timer 1:37:40, at the following link: https :/ /www .youtube .com /wat ch ?v=olo X9atFMO&feature=youtu .be. What Mayor Morgan was now admitting was that it was the Town's intent the whole time to stop what is O'Hare's right according to the Florida Constitution -to file public records requests, and when the Town fails to allow access as defmed by Statute and case law, to file suit. Surely, for the Government to utilize the Courts for such an unconstitutional purpose is egregious. (h) The threats by Plaintiff Gulf Stream noted in paragraphs 13 (a)-13 (g), above, regarding their motive for including Defendant O'Hare in the Class Action Complaint [D.E. 1], is yet the latest instance of retaliation by Plaintiff Gulf Stream against Defendant O'Hare for speaking out against the behavior and policies of the Town and its leaders, and their massive effort to chill Defendant O'Hare's right to free speech and the right to petition the government in court. Page 8 of14 RAS00000225 Case 9 :15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21/2016 Page 9 of 14 ARGUMENT Assuming all of the Plaintiffs RICO claims were true against O'Boyle, CAFI, et al, the evidence shows that O'Hare had no part in it-and that the Town and Sweetapple knew it. Normally, prevailing litigants in American courts may not collect attorneys ' fees from their opponents. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S .240, 247 (1980). This so-called "American Rule" is "deeply rooted in our history and congressional policy ," id. at 271, and is meant to avoid unnecessarily deterring parties from attempting to vindicate their rights in a judicial forum. Fleischmann Distilling Corp. v. Maier Brewing Co ., 386 U.S. 714, 718 (1967). We argue that this case falls within two exceptions to that rule . Under the flrst exception, which is authorized by statute, courts may assess fees for ''the excess costs, expenses, and attorneys ' fees reasonably incurred" against attorneys who have "multiplie[d] the proceedings in any case unreasonably and vexatiously." 28 U.S.C. § 1927. Under the second exception, courts may exercise their inherent authority to assess fees against litigants who have acted in bad faith. See Chambers v. NASCO. Inc., 501 U.S . 32,45-46 (1991). Attorneys Fees Under 28 U.S.C § 1927 A §1927 sanction may be appropriate when attorneys act in an "objectively unreasonable" manner. Hamilton v. Boise Cascade Ex press, 519 F.3d 1197, 1202 (lOth Cir. 2008). In exercising that judgment, attorneys should "regularly re-evaluate the merits of their claims and ... avoid prolonging meritless claims." Steinert v. Winn Grp .. Inc., 440 F.3d 1214, 1224 (lOth Cir. 2006) (citation s omitted). Regardless of an attorney's subjective intention s. it is objectively unreasonable to continue asserting claims that have no factual or legal basis and thus reasonably should have been dismissed voluntarily. /d. [emphasis added] "The term 'unreasonably' necessarily connotes that the district court must compare the attorney 's conduct against the conduct of a 'reasonable' attorney and make a judgment about whether the conduct was acceptable according to some objective standard. Page 9 of 14 RAS00000226 Case 9:15-cv -80182-KAM Oocument 54 Entered on FLSD Docket 07/21/2016 Page 10 of 14 Attorneys Fees Under the Court's Inherent Power The "bad faith " exception to the American Rule exi sts for cases in which ''the lo s ing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. at 258 (citations and quotation marks omitted). In those cases, courts may exercise their "inherent power" to award fees in order to vindicate judicial authority and compensate the prevailing party for expenses caused by the opponent's obstinacy . Chambers v. NASCO. In c., 501 U.S. 32, 46 (1991) (citation omitted). The term 'vexatiously ' similarly requires an evaluation of the attorney's objective conduct." Amlong & Amlong, PA v. Denny's, Inc., 500 F . 3d 1230-Court of Appeals, 11th Circuit 2007. "Whether the bad faith exception applies turns on the party's subjective bad faith." F.T.C. v . Kuykendall, 466 F.3d 1149, 1152 (lOth Cir. 2006) (citations and quotation marks omitted). In unusual cases, an extraordinarily meritless claim may satisfy the "subjective bad faith" requirement. Sterling Energy. Ltd. v . Friendly Nat'/ Bank, 744 F.2d 1433, 1437 (lOth Cir. 1984). A claim that is "patently frivolous and that, like fraud, is also opprobrious by nature and designed to cause embarrassment and humiliation" may raise an inference of subjective bad faith . Id. at 1437 [emphasis added] When y ou read O'Hare's account of the September 3, 2014 meeting at which the Town and Sweetapple threatened to include O'Hare in their RICO case if he didn't drop ALL his claims, the specter of "embarrassment and humiliation" of being publicly sued under RICO was abundantly clear. Again, to impose sanctions under the court's inherent power, the court must find bad faith. See In re Walker , 532 F.3d 1304, 1309 (11th Cir. 2008) (explaining "a fmding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent."). [emphasis added] Clearly, knowing what the Town did before they filed the RICO lawsuit, and to have included O'Hare anyway, is reckless. Further, the inherent power of a court can be invoked even if procedural rules exist which sanction the this type of conduct. Chamb ers v. NASCO, Inc., 501 U.S. 32,49 (1991) [emphasis added]. Page 10 of 14 RAS00000227 Case 9:15-cv-80182 -KAM Oocument 54 Entered on FLSD Docket 07/21/2016 Page 11 of 14 ANALYSIS Did Sweetapple "regularly re-evaluate the merits of their claims and ... avoid prolonging meritless claims?"-the 28 USC 1927 test in Steinert v . Winn Gm .. Inc., 440 F.3d 1214. As the undisputed evidence indicates, the answer is NO. Having found no evidence of O'Hare's complicity in a so-called RICO scheme, despite several depositions of various individuals, and in contradiction of the testimony of their star witness, Chandler, the Town and Sweetapple deliberately and callously chose to include O'Hare in the RICO Class Action Complaint. "Despite [his] subjective intentions," was Sweetapple "objectively unreasonable to continue asserting claims that had no factual or legal basis and thus reasonably should have been dismissed voluntarily"? the 28 USC 1927 test in Steinert v. Winn Grp .. Inc., 440 F.3d 1214. As the undisputed evidence would indicate, the answer is YES. Given the totality of the evidence available to the Town -as evidenced by Chandler's testimony and Sweetapple's own affidavit, both the Town and Sweetapple were objectively unreasonable to continue to assert claims that had no factual or legal basis against O'Hare , by including him in the RICO Class Action Complaint. Did the Town, as "the losing party [act] in bad faith, vexatiously, wantonly, or for oppressive reasons?" the test in Alyeska Pipeline Service Co. v. Wilderness Societv, 421 U.S. at 258 It was clear from Mayor Morgan's after-the-fact admission that " ... the RICO action is finished ... " and that "the effect of the RICO action was exactly what we tried to accomplish and that was to stop those lawsuits." The Town's self-professed intent the whole time was to stop O'Hare's from exercising his rights under the Florida Constitution -to file public records requests, and when the Town fails to allow access as defmed by Statute and case law, to file a lawsuit. Surely , for the Government to utilize the Courts for such an unconstitutional purpose is in bad faith, vexatiously, wantonly, or for oppressive reasons." Did the Town "knowingly or recklessly raises a frivolous argument?" the test In re Walker, 532 F.3d 1304, 1309 (11th Cir. 2008) Again, as the undisputed evidence indicates, the answer is NO. Having found no evidence of O'Hare's complicity in a so-called RICO scheme, despite several depositions of various individuals , and in contradiction of the testimony of their star witness, Chandler, the Town and Sweetapple deliberately and callously chose to include O'Hare in the RICO Class Action Complaint. Page 11 of 14 RAS00000228 Case 9:15-cv-80182-KAM Oocument 54 Entered on FLSD Docket 07/21/2016 Page 12 of 14 RELIEF REQUESTED WHEREFORE, Chr istopher O 'Hare respectful ly requests that t he Co urt : (a) Have a due process hearing to all ow ev id ence to be hea rd ; th en (b) Awar d O'Hare his attorneys' fee s and costs in h is defense of the RICO Complaint and Ap peal, spec ifi ca ll y against the Town's attorneys -Sweetappl e; R ich man and O'Connor; (c) In the a lternative, Award O'Hare hi s attorney s' fees and costs in hi s defense of th e RICO Comp lai nt and Appea l, specifically aga inst the Town , the Wantman Group AND the attorneys for the Town -Sweetapple; R ic hm a n and O'Conn or. (d) A ny other reli ef th e Court fi nds ap pro priate. CERTDnCATEOFCONFERENCE I HEREBY CERTIFY that in accordance with local rule 7.1, I conferred with all parties who may be affected by the relief sought in the motion and made a good faith effort to resolve the issues raised in the motion and have been unable to do so. Respectfully submitted July 21,2016 By: Is/ Louis Roeder Louis Roeder, Esq. Fla. Bar No. 0004316 7414 Sparkling Lake Road Orlando, FL 32819 Phone:407-758-4194 Emai l: lo u@ louro ed er .com Counsel for D efendant, Christophe r F. O'Hare Page 12 of 14 RAS00000229 Case 9:15-cv-80182-KAM Oocument 54 Entered on FLSD Docket 07/21 /2016 Page 13 of 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 21, 2016 a true and correct copy of the foregoing, was electronically filed with the Clerk using the CMIECF filing system and served upon on all counsel of record and/or pro se party(ies) listed below, either via transmission of Notices of Electronic Filing generated by the CM/ECF filing system or, if indicated , in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. By: Is/ Louis Roeder Louis Roeder, Esq. Fla. Bar No. 0004316 7414 Sparkling Lake Road Orlando , FL 32819 Phone:407-758-4194 Email: lou@louroeder.com Counsel for Defendant, Christopher F. O'Hare Page 13 of 14 RAS00000230 Case 9:15-cv-80182-KAM Document 54 Entered on FLSD Docket 07/21 /2016 Page 14 of 14 SERVICE LIST Steven D. Weber sweber@bergersingerman.com EtanMark emark@bergersingerman.com Mitchell W. Berger mberger@bergersin german.com BERGER SINGERMAN Las Olas Centre ll 350 E. Las Olas Blvd. Suite 1000 Fort Lauderdale, FL 33301 Tel: 954.525.9900 Attorneys for Martin E . O'Boyle, Airline Highway LLC, Commerce Gp Inc., GC Acquisition Co. Inc., CRO Aviation Inc ., Asset Enhancement In c., Commerce Realty Group In c., and Commerce Group Inc ., Defendants Daniel DeSouza ddesouza@desouzalaw.com DESOUZA LAW, P.A. 101 N. Third Avenue Suite 1500 Ft. Lauderdale, FL 33301 Tel: 954.551.5320 Attorneys for Denise DeMartini, Citizens Awareness Foundation Inc ., Our Public Records LLC, Stop Dirty Government LLC, and Public Awareness Institute, Inc. Stuart R. Michelson smichelson@smichelsonlaw .com LAW OFFICES OF STUART MICHELSON 800q SE 3rd Avenue, 4th F loor Fort Lauderdale, FL 33316 Tel: 954.463.6100 Attorneys for Giovanni Mesa, Nicklaus Taylor and Ryan Witme, Defendants Joanne M. O'Connor, Esqui re Florida Bar No.: 0498807 j oconnor@ jonesfoster. com JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, FL 33401 Telephone: (561) 659-3000 Attorneys for Plaintiff, Town ofGulfStream Gerald F. Richman, Esquire grichman@richmangreer.com Leora B. Freire, Esquire lfreire@richmangreer.com Eric M. Sodhi, Esquire esodhi@richmangreer .com RICHMAN GREER, P .A. 250 Australian Ave., South, Suite 1504 West Palm Beach, FL 33401 Telephone: (561) 803-3500 Attorneys for Plaintiff, Town of Gulf Stream Adam T . Rabin arabin@mccaberabin.com Robert C. Glass rglass@mccaberabin.com MCCABE RABIN, P.A. 1600 Forum Place, Suite 505 Palm Beach, FL 33401 Tel: 561.659.7878 Attorneys for William Ring, Jonathan 0 'Boyle And The O'Boyle Law Firm, P.C., Inc., Defendants Page 14 of14 RAS00000231 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 1 of 57 EXIBHIT ''A'' RAS00000232 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 2 of 57 Case : 15-13433 Date Filed : 06/21/2016 Page : 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 15-13433 Non-Argument Calendar D .C. Docket No. 9 :15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, W ANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, MARTIN E . O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOV ANI 1\ffiSA, an individual, et al., Plaintiffs -Appellants , versus RAS00000233 Case 9:15 -cv -80182 -KAM Document 54 -1 Entered on FLSD Docket 07/21/2016 Page 3 of 57 Case: 15-13433 Date Fil ed : 06/21/2016 Page : 2 of 13 Defendants -Appellees. Appeal from the United States District Court for the Southern District of Florida (June 21, 2016) Before WILSON, ROSENBAUM and llLL PRYOR, Circuit Judges. PER CURIAM: The Town of Gulf Stream, Florida ("Gulf Stream" or the ''town") and its contractor Wantman Group, Inc. ("Wantman") (collectively the "plaintiffs") appeal the dismissal of their class action complaint 1 under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c), 1964(c). The plaintiffs' complaint was premised on, among other actions, the defendants' alleged efforts to inundate the town with public records requests in an attempt to cause a violation of Florida's Public Records Act, Fla. Stat. § 119.07 (the "Act"), and then to threaten litigation and the possibility of liability for attorneys ' fees to 1 The plaintiffs defmed the proposed class to include the following: All state or local municipalities, municipal agencies, or private contractors in the State of Florida, who have been served with a public records request by any of the Defendants and who either (a) paid a settlement amount in conjunction with, or to resolve the public records request; or (b) incurred attorneys' fees and costs to respond to or litigate against public records requests from any of the Defendants. Compl. ~ 31 , Doc. 1. Citations to "Doc." refer to docket entries in the district court record in this case. 2 RAS00000234 ·Case 9:15-cv -80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 4 of 57 Case : 15-13433 Date Fi led : 06/21/2016 Page: 3 of 13 extort an unreasonable settlement. The district court recognized the ''very difficult situation" the plaintiffs allegedly found themselves in, Doc. 4 7 at 4, but nevertheless held that the plaintiffs failed to allege at least two predicate acts in support of their RICO claim. After careful review, we agree that the plaintiffs' allegations , although troubling, fail to state a claim under RICO. Therefore, we affirm. I. Gulf Stream is a tiny town of under 1,000 residents and just 17 full time employees.2 The defendants-Martin E. O'Boyle, William F. Ring, Christopher O'Hare, Jonathan R. O'Boyle, Denise DeMartini, and their associated companies-pummeled the town with nearly 2,000 public records requests, many of them frivolous, with no intention of actually reviewing the results. Examples of such requests included • "All email addresses created or received by the Town of Gulf Stream," Compl. Ex. B, Doc. 4-2 at 2 (No. 1); • "All phone numbers in the town's records," id. (No.3); and • "Any and all records containing a social security number," id. at 10, No. 322. 2 We derive these facts from the complaint's well-pled allegations, which we accept as true for purposes of the motions to dismiss. S ee Chaparro v. Carnival Corp ., 693 F.3d 1333, 1335 (11th Cir. 2012). 3 RAS00000235 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 5 of 57 Case : 15-13433 Date Fil ed : 06/21/2016 Page : 4 of 13 These and other bogus requests were "an essential first-step" in a "scheme to defraud and extort money from the class members." Compl. ~ 37, Doc. 1. The purpose of this onslaught of records requests was to induce a violation of the Act and then threaten a lawsuit, or actually file one, which could entitle the defendants to prevailing party attorneys' fees under Fla. Stat.§ 119.12.3 "It is this threat of prevailing party attorneys' fees," the plaintiffs alleged, ''that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme." Compl. ~ 52, Doc. 1. The defendants then demanded unreasonable settlements and threatened to file more frivolous records requests if the town did not settle the claims. Since 2013, the defendants have filed 43 public records suits against the town.4 3 Florida Statutes§ 119.12 provides: If 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. Fla. Stat. § 119.12. 4 In addition to the public records disputes litigated in state court, Martin O 'Boyle and the town have had other disagreements, some of which have been litigated in federal court. See, e.g., O'Boyle v. Thrasher, Ward, & Town of Gulf Stream, No. 15-10997, _F. App'x _, 2016 WL 158757 (11th Cir. Jan. 14, 2016) (affirming the district court's dismissal of O'Boyle's claims against the town under 42 U.S.C. § 1983); O'Boyle v. Town of Gulf Stream, et al., No. 9:14-cv- 80317-DMM (S.D. Fla. Mar. 30, 2015) (granting the defendants' motion for summary judgment and dismissing a First Amendment challenge to the town's sign ordinance), appeal docketed, No. 15-13964 (11th Cir. Sept. 3, 2015). We recently affirmed the award of attorneys' fees in the 4 RAS00000236 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 6 of 57 Case : 15 -1343 3 Date Fil ed : 06/21/2016 Page : 5 of 13 In addition, defendant O'Hare employed aliases when making public records requests to avoid incurring a special service charge the town would have otherwise imposed. Florida authorizes the town to condition public records production on the payment of certain costs and expenses, but only "[i]fthe nature or volume of . public records requested to be inspected or copied ... is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both." Fla. Stat. § 119.07(4)(d). When the town began to assess special service charges against O'Hare for his voluminous requests, he started using fake names to hide his identity. The defendants also lodged a bogus public records request with Wantman, a government contractor also covered by the Act. See Fla. Stat. § 119.0701.5 When the defendants did not receive the document requested, they filed suit and promptly demanded nearly $4,000 to settle the claim. § 1983 action. O 'Boyle v. Thrasher, Ward & Town of Gulf Stream , No. 15-10997, _F. App'x , 2016 WL 1426013 (11th Cir. Apr. 12 , 2016). 5 During the relevant time, Fla. Stat. § 119.0701(2) (2003) provided that "each public agency contract for services must include a provision that requires the contractor to comply with public records laws." Florida recently amended this statute to specify precisely when a public records requester may bring suit against a contractor. See 2016 Fla. Law Serv. ch. 2016-20 (CS/HB 273) (codified at Fla. Stat.§ 119.0701(3)-(4) (2016)). 5 RAS00000237 Case 9:15-cv-80 182 -KAM Docum ent 54-1 Ente red on FLSD Docke t 07/21/2016 Pa ge 7 of 57 Case : 15-13433 Date Fi led : 06/21/2016 Page : 6 of 13 Based on these and similar allegations, the plaintiffs filed a class action complaint on their own behalf and on behalf of other similarly situated state or local municipalities, municipal agencies, or private contractors. They alleged that each defendant committed at least one predicate act of mail fraud, wire fraud , or extortion, constituting a pattern of racketeering activity in violation of RICO, 18 U.S.C. §§ 1962(c), 1964(c). The defendants moved to dismiss arguing, among other points, that neither filing frivolous public records requests nor threatening to file or actually filing a lawsuit is a predicate act under RICO . The district court agreed, granted the defendants ' motions to dismiss, and dismissed the case with prejudice. This appeal followed. II. "We review de novo the district court's grant of a Rule 12(b )(6) motion to dismiss for failure to state a claim, accepting the complaint's allegations as true and construing them in the light most favorable to the plaintiff." Chaparro v. Carnival Corp., 693 F.3d 1333 , 1335 (11th Cir. 2012) (internal quotation marks and citation omitted). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U .S . 544, 570 (2007)). A complaint is insufficient if it ''tenders naked assertions devoid of further factual enhancement." Id. (internal quotations marks and citation 6 RAS00000238 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 8 of 57 Case : 15-13433 Date Fi led : 06/21/2016 Page : 7 of 13 omitted). To survive a motion to dismiss , the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged ." !d. III. To establish a federal civil RICO violation under§§ 1962(c) and 1964(c), the plaintiffs must prove the conduct of an enterprise through a pattern of racketeer ing activity and an injury to business or property by reason of the RICO enterprise. See Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282-83 (11th Cir. 2006). The district court dismissed the plaintiffs ' RICO claim on the ground that the plaintiffs failed to allege a pattern of racketeering activity. We therefore focus on this element of the claim. A RICO "pattern of racketeering activity" requires at least two "qualifying predicate acts ," each of which constitutes "a violation of one of the state or federal laws described in 18 U .S.C . § 1961(1)." Raney v. Allstate Ins. Co ., 370 F.3d 1086, 1087 (11th C ir . 2004). The plaintiffs argue that they have adequately pled two types of predicate acts: (1) extortion under the Hobbs Act, 18 U .S .C . § 1951 , and (2) mail and wire fraud under 18 U.S.C . §§ 1341 , 1343 . See 18 U.S .C . § 1961(1) (listing violations of the Hobbs Act and the mail and wire fraud statutes). We consider each type of predicate act in tum. 7 RAS00000239 Case 9:15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 9 of 57 Case : 15-13433 Date Fi led : 06/21/2016 Page : 8 of 13 A. The Hobbs Act prohibits extortion, defined as ''the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U .S.C. § 1951(b)(2). The plaintiffs contend that the defendants' "systematic use of unjustified lawsuits as part of a more extensive extortion scheme to obtain money" supports a claim of extortion under the Hobbs Act. Appellants' Br. at 18 . Our precedent commands otherwise. We held in United States v. Pendergraft that a ''threat to file litigation against [the government], even if made in bad faith and supported by false affidavits, [was] not 'wrongful' within the meaning ofthe Hobbs Act." 297 F.3d 1198, 1208 (11th Cir. 2002). The issue was whether a threat to add a bogus claim in a federal lawsuit against a county government in an effort to force a large settlement could support a Hobbs Act violation. "[U]nder our system," we explained, "parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights ." !d. at 1206. Thus, "litigants may be sanctioned for only the most frivolous of actions ." !d. And even then, such sanctions-through tort actions for malicious prosecution, for example-"are heavily disfavored." Id. We also expressed confidence in the ''time-tested procedures" of the courts to resolve disputes in litigation by "separating validity from invalidity, honesty from 8 RAS00000240 Case 9 :15-cv-80 182-KAM Document 54-1 Entered on FLSD Docket 07 /21/2016 Page 10 of 57 Case: 15-13433 Date Fi led : 06/21/2016 Page : 9 of 13 dishonesty." ld. Moreover, citizens have a constitutional right to petition the government for redress under the First Amendment. !d. at 1207. For these reasons, we rejected the contention that a threat to file litigation against the government can trigger Hobbs Act liability. Id. at 1206-1207. We clarified in Raney, a civil RICO case, that Pendergraft applies both to threats oflitigation and actual litigation. Raney, 370 F.3d at 1088. In Raney, the plaintiff alleged that the defendants filed frivolous lawsuits in an effort to extort money from him. Id. at 1087. We held unequivocally that ''the filing of a lawsuit may not state a claim for extortion under the federal RICO statutes." Id. The material difference between this case and Pendergraft or Raney is the number of times the defendants allegedly threatened to file a lawsuit or actually sued in an effort to extort money. Indeed, assuming the allegations in the complaint are true, as we must, the defendants have engaged in a pattern of frivolous litigation activity while abusing, on a grand scale, their statutory right to request public documents from the government. Nonetheless, the same concerns driving our decisions in Pendergraft and Raney are equally present here. Our judicial system, and the Act in particular, encourages citizens to use the courts to resolve public records disputes. Moreover, citizens have a constitutional right to petition the government for redress. We believe that regardless of the scope and scale of the litigation, the courts are amply equipped to deal with frivolous 9 RAS00000241 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 11 of 57 Case : 15-13433 Date Fi led : 06/2 1/2016 Page : 10 of 13 litigation . See, e.g., The Florida Bar v. Committe, 916 So. 2d 741, 749 (Fla. 2005) (sanctioning an attorney for, among other things, "repeatedly attempt[ing] to relitigate the same nonmeritorious issue in an attempt to frustrate the legal process and to harass [an] attorney debt-collector"). Thus, Pendergraft and Raney control, and the alleged misconduct cannot as a matter of law constitute the predicate act of extortion for purposes of the plaintiffs' civil RICO claim. The plaintiffs also alleged that the defendants abused their right to request public records; they argue on appeal that this abuse amounted to a RICO predicate act. As alleged in the complaint, the defendants intentionally set the town up to violate the Act. Whether it was a setup or not, the town may be on the hook for attorneys' fees if it failed to respond timely to the requests. See Bd. of Trustees, Jacksonville Police & Fire Pension Fund v . Lee, 189 So. 3d 120, 124-25 (Fla. 2016) (holding that once the court determines that the defendant ''unlawfully refused" to permit a public record to be inspected or copied, the court must assess reasonable attorneys' fees, whether or not the defendant acted in good faith (citing Fla. Stat. § 119.12)); Prom enadeD 'Iberville, LLC v. Sundy, 145 So. 3d 980, 983 (Fla. 1st DCA 2014) (holding that a delay in producing non-exempt public records for no legally sufficient reason constitutes a violation of the Public Records Act). We nevertheless agree with the district court that the alleged abuse of the Act "must be addressed in the individual lawsuits filed , or through a change in the laws 10 RAS00000242 Case 9:15-cv-80 182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 1 2 of 57 Case : 15-13433 Date Filed : 06/21/2016 Page : 11 of 13 by the Florida Legislature." Doc. 47 at 8. RICO and the Hobbs Act in particular do not provide the remedy the plaintiffs seek. B. The plaintiffs next contend that mail and wire fraud constitute the predicate acts necessary to support their RICO claim. Specifically, they argue that O'Hare's use of aliases to avoid incurring a special service charge when lodging public records requests amounted to fraud. We are unpersauded. "The elements of mail and wire fraud are: (1) intentional participation in a scheme to defraud, and, (2) the use of the interstate mails or wires in furtherance of that scheme." United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). ''Nondisclosure of material information can constitute a violation ofthe mail and wire fraud statutes where a defendant has a duty to disclose, either by statute or otherwise." McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1225 (11th Cir. 2002); accord Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1065 (11th Cir. 2007) (holding that the failure to allege a duty to disclose is fatal to a RICO claim premised on mail fraud arising out of alleged nondisclosure of material information). Although the plaintiffs argue that O'Hare's concealment of his true identity to avoid incurring a special service charge constituted fraud, they alleged no facts to plausibly suggest that O'Hare had any duty to disclose that information. To the 11 RAS00000243 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07 /21/2016 Page 13 of 57 Case: 15-13433 Date Fi led: 06/21/2016 Page: 12 of 13 contrary, Florida law recognizes a person's right to request public records anonymously. See Chandler v. City of Greenacres, 140 So. 3d 1080, 1084-85 (Fla. 4th DCA 2014) (holding that a city cannot require a public records requester to provide identifying information, which "could have a chilling effect on access to public records and is not required by the Public Records Act"). Accordingly, the plaintiffs failed to allege the predicate acts of mail and wire fraud to support their RICO claim. Because we conclude that the plaintiffs' mail and wire fraud allegations fail on this basis, 6 we do not consider the defendants' alternative reasons for rejecting it. IV. The allegations in the plaintiffs' complaint paint a frustrating picture. Accepting those allegations as true, the defendants have engaged in a concerted effort to capitalize on the relatively unfettered access to public records Florida has granted its citizens by bombarding small towns and municipalities with public records requests to which they cannot respond adequately. As distasteful as this 6 S ee Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 , 1364 (11th Cir. 2007) ("We may affirm the district court's judgment on any ground that appears in the record , whether or not that ground was relied upon or even considered by the court below."). 12 RAS00000244 Case 9 :15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 14 of 57 Case : 15-13433 Date Fi led : 06/21/2016 Page: 13 of 13 conduct may be, the allegations do not support a RICO claim under our precedent. We therefore affirm the dismissal of the plaintiffs ' complaint.7 AFFIRMED. 7 Some of the defendants have also filed a motion for sanctions under Federal Rule of Appellate Procedure 38. We DENY that motion. 13 RAS00000245 Cas e 9 :15-cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 15 of 57 Case : 15-13433 Date Fil ed : 06/21/2016 Page: 1 of 1 Davi d J. Smith Clerk of Court UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ELBERT PARR TU1TLE COURT OF APPEALS BUilDING 56 Forsyth Stree~ N.W. Atlanta, G eorgia 3 0303 June 21 , 2016 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 15-13433-DD Case Style: Town of Gulf Stream, et al v. Martin O'Boyle, et al District Court Docket No: 9: 15-cv-80 182-KAM For rules and form s vi sit WWW cal l u scourts gov This Court requires aU counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36 . The court's mandate will issue at a later date in accordance with FRAP 4l(b). The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en bane is governed by lith Cir. R. 35 -2 . Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en bane is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and lith Cir.R. 39-1. The timing, format , and content of a motion for attorney's fees and an objection thereto is governed by lith Cir. R. 39-2 and 39-3 . Please note that a petition for rehearing en bane must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1- 1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en bane. See 11th Cir. R. 35-5(k) and 40-1 . Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U .S. Supreme Court of a petition fo r a writ of certiorari (whichever is later). Pursuant to Fed.R.App.P. 39, costs taxed against appellants. The Bill of Costs form is available on the internet at www.ca ll .uscourts .gov For questions concerning the issuance of the decision of this court, please call the number referenced.in the signature block below. For all other questions , please call Elora Jackson. DD at (404) 335-6173 . Sincerely, DAVID J . SMITH, Clerk of Court Reply to : JeffR. Patch Phone #: 404-335-6161 OPIN-lA Issuance of Opinion With Costs RAS00000246 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 16 of 57 EXIBHIT ''B'' RAS00000247 Case 9:15-cv-80182-KAM lJocument 54-1 Entered on FLSD Docket 07/21/2016 Page 17 of 57 Case 9:14 -cv -81250 -KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 1 of 5 UNITED STATES DISTIUCT COURT SOUTHERN DISTRICT OF FLOIUDA Case No. 9:14-cv-81250-KAM M ARTIN E. O 'BOYLE, Pl ai ntiff, v. ROBERT A. SWEETAPPLE and THE TOWN OF GULF STREAM, Defendants. ______________________________ ./ AFFIDAVIT OF ROBERT A. SWEET APPLE. ESQ. BEFORE ME, the undersigned authority, person a ll y appeared ROBERT A. SWEET APPLE, ESQ ., who, upon being fu ·st duly swom, deposes and says : 1. My name is Robert A. Sweetapple. I am over the age o f eighteen (18) and am compe tent to testify in this matter. 2. I am a partner and managing member of the Boca Raton office of the law firm of Sweetapple, Broeker & Varkas, P.L . I have been licensed to practice law in the State of Florida si n ce 1980 a nd ha ve bee n practi cing to r thirty-s ix (36) yea rs. J am li ce nsed to prac ti ce in the Un ited States Distr ic t Colllt for the Southern District of Florida, the Eleventh C ircuit Cou rt of Appeals, and the Uni ted States Supreme Court . I am Florida Bar Board Certified in both civil trial and bu s in ess litigation. 3. The information co ntained in thi s Affid av it is bas ed on my pe rson a l kn o wledge . 4. In or around Ap ril 2014, I was retained a s Special Coun sel for the Town of Gulf Strea m (the ·'To\vn") to defend a litany of active and threatene d lawsuits for p urp 011ed vio lations of Chapter I 19, Florid a St atute s (th e "Publi c Reco rds Laws "). EXHIBIT Page I o f 5 ~0 RAS00000248 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 18 of 57 Case 9:14-cv-81250-KAM Document 146-12 En tered on FLSD Docket 06/24/2016 Page 2 of 5 Case No.9 : 14-cv-81250-KAM 5. These lawsuits were brought by Martin E. O'Boyle, Christopher O'Hare, affiliate entities, or some combination of the aforementioned . 6 . The Town has other lawyers end lew firms retni11ed to act as its cou nsel on a ny given matte r, including, but not limited to, Joru1 C. Randolph, Esq., and Joanne M. O'Connor, Esq., who are lawyers with the law finn of Jones Foster Johnston & Stubbs, P.A . 7. In or around April of 2014, in my capacity as Special Cotmsel for the Town, I atte nd ed a joint scheduling co nference for severa l of Mr. O'Hare's outstanding publi c records cases against lhe Town . Mark Hanna, Esq., appeared at the joint scheduling conference as counsel fo r Mr. O'Hare. Ms. O'Connor and 1 attended th e joint scheduling conference on behalf ofthc Town. 8. Before and after the April 2014 joint schedu li ng conference, 1 engaged in initial settlement discussion s with Mr. Hruma. Fu tiher, I attempted to elicit infonnation from Mr . Hanna about Mr. O'Hare's re lationship with Mr. O'Boyle. 9. On or abo ut May 30,2014, I filed a Motion to Disqua lify The O'Boyle Law Firm , P.C., Inc., Mr. O'Boyle's son's law fmn, in one of the lawsuits I was retained to defend on behalf of th e Town . I 0. In o r aro und Jul y 1, 20 I tl, Joel E. Chandler co ntacted me re gard in g hi s resignation as Executive Director from CAFI. II . It is my un derstandi n g th at Mr. Chand ler directed th e above mentioned con espondence to me because I was Special Counsel for th e Town and that CAfl ha d, at the time, at le as t two pending lawsuits against the Town for a ll eged violat ions of the Public Record s Laws. Page 2 of S RAS00000249 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 19 of 57 Case 9:14-cv-81250-KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 3 of 5 Case No . 9: 14 -cv -8 1250-KAM 12 . Mr. Chandler informed me that, based on a number of actions which he considered to be potentially fraudulent, criminal, or unethical, he had resigned from his position. He further offered to provide swam testimony to this effect. 13 . After confirmi ng th at Mr. Chandler sought independent counsel from at le ast one o ther atlorney, I arranged for him to give a nRJTative-style sworn statement about his observations while Executive Director of CAFI. Mr . Chandler gave a sworn statement on July 23,2014. 14. Mr. Chandler essentially testified as follows: Plaintiff headed a windfall scheme wherein a purported nonprofit, CAFI, directed hundreds of public records requests to the Town, as well as oth er governmental agencies and con tractors, in an effort to force noncompliance with the Public Records Laws due to the sheer volume of requests it received. Thereafter, CAFI filed over a hundred law sui ts th ro ughout the state by and tlu·ough the O'Boyle Law Finn, P.C ., lnc. (the "Fim1"), an alleged inters tate law firm owned by Plaintiffs son, to enforce Public Records Laws. Either at the direction of CAFI or on its own, the Finn demanded attorney s' fee s from governmen tal defendants in excess of th ose earned, thereby creating a "windfall." 15 . Mr. Chandler further testified that CAF I and the Firm, as well as other entities owned by Plaintiff, were housed within the same building, that CAFI was required to use the Firm to file a ll lawsuits under the Public Records Act, and that attorneys with the Finn discussed cli ents' cases with, and were advised by, non-lawyers who were employed by Plaintiff's other ent ities. 16. On or about July 24, 2014, I attended a scheduling conference with Mr. Hanna and Ms. O'Connor at Ms . O'Connor's office. Page 3 ofS RAS00000250 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 20 of 57 Case 9:14-cv-81250-KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 4 of 5 Case No . 9: 14-cv-81250-K.AM 17. In an effort to encourage Mr. O'Hare to settle his claims against the Town and on the belief that Mr. O'Hare was part of Mr. O'Boyle's scheme, l advised Mr Hanna that the Town was investigating and considering a class action lawsu it against Mr. 0' Boyle and all others invo lv ed in the scheme de scribed by Mr . Chandler duri ng hi s Sworn Statement und er the ci vii provisions of Florida's Racketeer Influenc ed and Corrupt Organi za tion s Act ("IUCO 1\ct"). I furt her advised Mr . Hanna that if Mr. O'Hare resolved his pending lawsuits against th e Town, he cou ld avoid being na m ed as a defendant in any s uch lawsuit. 18. On or about September 3, 2014, l attended a confidential settlement conference with Louis Roeder, Esq., Mr. Hanna , Mr. O 'Hare, Ms . O 'Connor, and the Mayor of the Town, Scott Morgan . Upon information and belief, Mr . Roeder represents Mr. O'Hare in some of his various other lawsuits against the Town. 19 . Plaintiff was not at the above reterenced settlement confere nce . 20. Every one who atte nd ed the September 3, 20 14 settlement conference signed a handwritten contact stating that the discussions of that date were to remain confidential. 21. During th e course of this confidential sett lement conference, r summarized the information I obtained from Chandler. l furthe1 stated th at based upon th is information, the Town may pursue a civil JUCO lawsuit against Mr. O'Boyle and others involved in this a ll e~d schem e . 22. Upon information and belief that Mr. O'Har e was involved in th e scheme described by Mr. Chandler, 1 once again advised Mr. O 'Hare, directly and through his cou nsel, that he could avoid being named as a defendant in any subsequent IUCO lawsuit if he agreed to resolve his various actions against the Town. Page 4 of 5 RAS00000251 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 21 of 57 case 9:14-cv-81250-KAM Document 146-12 Entered on FLSD Docket 06/24/2016 Page 5 of 5 Case No . 9:14-cv-81250-KAM 23. At no point during any of the above mentioned confere nces did 1 refer to Mr. O'Boylc ns a felon or s la.le that he was engaged in felonious activity. 24. All statements made during the above mentioned confere nces were my legal opinion, which was ba se d upon the information 1 gathered fTom Mr. Chandler and otherwise during my investigation ofMr. O'Boylc, nod were made for the sole purpose of encouraging Mr. O'Hare to se ttle his various claims aga inst the Town . 25. All of th ese discussions were held for the purpose of settlement. 26. Mr . O'Boyle was never present at any of the above mentioned conferences or di scussions. fo'llf-.1 J tf-Cil V .f e7ll STATE OF FL~A COUNTY OF (VI,t/t/!~Jet FURTHER AFFIANT SA YETH NAUGHT. J)L~ I BEFORE ME, the undersigned authority, personally appeared ROBERT A. SWEET APPLE, who, be ing first duly sworn according to law, deposes and says that he executed the foregoing Affidavit and that the representations th erein are true and correct to the best of his knowledge and belief. SWORN TO AND SUBSCRIBED TO before me this )-')< l clay of Ju ne, 2016. Individual personally k.n0\\'11 [ v"J or Individunl produced identification [ v"J Type and Number of ldeutification Produced: f\un l.q 'DY\v.(..J"J La,.=tJ ~ -it S3 \~-I' 1-S''/ ~~oS'O ~~ My Commission Expires: h "'1 ~ J ;;l.o I ~ Page 5 of 5 RAS00000252 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07 /21/2016 Page 22 of 57 EXIBHIT ''C'' RAS00000253 1 1 11 ~~e 9:15-cv-80182-KAM Document ~~ C te!f~l~ t\niiJ::rt!tgonl!!Joof<et 07/21/2016 Page 23 of 57 il Chris O'Hare-"I will not be silenced!" Joel Chandler <joelchandler@fogwatch.org> To: Lou Roeder <lou@louroeder.com> Lou, Louis Roeder <lou.roeder@gmail.com> Mon , Nov 17, 2014 at 12 :24 PM Lest there be any doubts about my feelings on this issue, I believe Chris has done nothing wrong and that the has nothing to do with the RICO allegations . I believe (and have stated to Sweetapple and O'Conner) that the Town should concede to Chris 's demands and be done with it. Chris is a v ictim of the Town's foolishness. Joel [Quoted t ext hidd en] [Quoted text hidden] <I will not be silenced 111414.pdf> htt,os://mail .google.com /mai l/u/OI?ui=2&ik=b2cb720122&view=pt&search=i nbox&msg =149bec852b6ae853&sim l=149bec852b6ae853 1/1 RAS00000254 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 24 of 57 O'Hare Speech before the Gulf Stream Commission Nov 14, 2014 "I will not be silenced!" 3 years ago I criticized a police officer when I heard him call workers at my home BEANERS . A few weeks later this officer searched the inside of my home uninvited and without a warrant. He then took pictures of the inside of my home from over my rear fence. This officer came back later and again tried to enter my home uninvited and without a warrant but found the doors locked. He then spied into my private home by looking over the rear fence again. This same officer then fabricated a false police report and lied about what he did and why he did it. My complaints to the Town about this have produced no results; not even an apology. Instead Mr. Thrasher waged a campaign against me of retaliation and abuse by denying my permits, inciting my neighbors and fabricating false code violations. But I would not be silenced. I made numerous public record requests. I tried to call attention to the Town's abuse with a website and political art. But have gotten nowhere with the Town. I have complained to the courts and have been retaliated against yet again, this time by a propaganda campaign aimed at silencing me once more by accusing me of harassing the Town and wasting the Town's resources and money. But I will not be silenced. Then in a desperate attempt to force me to give up my complaints and be finally silenced , each commissioner has voted to accuse me of criminal racketeering and to use the courts as a weapon to retaliate against me and suppress my free speech. Each member of this commission has collaborated to concoct a fictitious legal complaint against me solely in retribution and retaliation for themselves having been brought before the courts. I have been warned by Mayor Morgan through his attorney that I must withdraw ALL my complaints or be drawn into a long and expensive RICO lawsuit. That is extortion and I will not be silenced. This RICO accusation is untrue but it is a ringing bell that cannot be unrung. It is a callous and malicious attempt to destroy my character and it will not go unpunished. The Town has chosen to fight a long and costly battle . I have made numerous attempts to resolve this and been rebuffed. I am speaking today to try to mitigate some of the propaganda damage inflicted on my by the commission. But I am just a citizen fighting a juggernaut of power and money. But I will not be silenced. RAS00000255 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07 /21/2016 Page 25 of 57 EXIBHIT ''D'' RAS00000256 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 26 of 57 1 2 3 JOE L CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 9:14-cv-81250-KAM 4 MARTIN E . O 'BOYLE , 5 Plaintiff, 6 -vs- 7 ROBERT A . SWEETAPP LE AND MAYOR SCOTT MORGAN, 8 Defendants. 9 ______________________ ! 10 11 12 DEPOSI TI ON OF JOEL CHANDLER February 24, 2016 1 13 Taken By Counsel for Defendant, Sweetapple Volume 1 of 2 14 15 16 17 18 1 9 20 21 22 Reported By: Megan M. Soria 23 Notary Public (Pages 1-195} We dnesday , F e b r u ary 2 4, 2016 10 :30 a.m . -4 :50p .m. Esquire Deposition Solut i ons 4927 Southfork Drive Lake l and , Florida State of Florida at Large 24 Esquire Deposition Solutions -Tampa Office Phone -813 .221 .2535, 800 .838.2814 25 Esquire Job No. 118775 ESQUIR~ 800.211 .DEPO (3376) EsquireSo/utions. com RAS00000257 tase 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 27 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE 1 APP EARAN CES: 2 DANIEL DESOUZA, ESQUIRE DeSouza Law, PA 3 1515 North University Drive, Suite 209 Coral Springs, Florida 33071 4 954.780.8262 5 On Behalf of Plaintiff February 24, 2016 2 (Appeared via telephone conference call) 6 7 JOSHUA A. GOLDSTEIN, ESQUIRE Cole, Scott & Kissane, PA 8 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 9 561.383.9200 10 On Behalf of Defendant, Sweetapple 11 12 HUDSON C. GILL, ESQUIRE Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA 13 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 14 954.463.0100 15 On Behalf of Defendant, The Town of Gulf Stream 16 LOUIS ROEDER, III Law Office of Louis Roeder 17 7414 Sparkling Lake Road Orlando, Florida 32819 18 407.352.4194 19 On Behalf of Chris O'Hare 20 21 22 23 24 25 800.211 .DEPO (3376) Esquire Solutions. com RAS00000258 Case 9:15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 28 of 57 1 2 JOEL CHANDLER Volume 1 of 2 OBOY LE -vs-SWEET APPLE VOLUME 1 INDEX WITNESS February 24, 2016 3 PAGE 3 JOEL CHANDLER 4 Direct Examination by Mr. Goldstein .............. 4 5 Errata Sheet ................................... 192 6 Certificate of Reporter ........................ 195 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VOLUME 1 EXHIBITS No. PAGE 1 Timel ine ................................. 4 9 2 Sunbiz Filing ............................ 82 3 Affidavit ............................... 100 4 Complaint ............................... 166 5 Sworn Statement ......................... 1 74 6 Subpoena ................................ 183 ~ESQUIRE 800. 211.DE PO (3376) EsquireSolutions. com RAS00000259 'case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/2112016 Page 29 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE February 24, 2016 4 1 Deposition was t aken be f ore Megan M. Soria, Court 2 Reporter and Notary Public in and for the State of 3 Florida at Large, in the above cause. 4 -- - - 5 THE COURT REPORTER: Do you swear or affirm that 6 the testimony you 1 re about to give will be t he truth, 7 the whole truth, and not h i ng but the truth? 8 9 THE WITNESS: I do . THE COURT REPORTER: Thank you. 1 0 THEREUPON, 1 1 JOEL CHANDLER, 12 having been duly sworn or affirmed, was examined and 13 testified as follows: 14 DIRECT EXAMINATION 15 BY MR . GOLDSTEIN: 16 Q. Good morning, Mr. Chandler. My name is Joshua 17 Goldstein from the law firm of Cole, Scott, Kissane. I 18 represent Robert Sweetapple. 19 MR. DESOUZA : Josh, you 1 re going do have to speak 20 up. 21 MR. GOLDSTEIN: No problem. 22 BY MR . GOLDSTEIN: 23 Q. I represent Robert Sweetapple in this matter. 24 I 1 m going to ask you a series of questions today, not 2 5 trying to t rick you, no t trying to get you to answer 800.211.DEPO (3376) EsquireSolutions. com RAS00000260 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 30 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEETAPPLE 1 character or something. February 24, 2016 172 2 Q. So Marty had a fair a mo unt of animosity toward 3 Mr. Sweetapple? 4 A. I would say so. That was my impression. 5 Q. How many times did you speak with my client? 6 A. We have talked qui te a few times. It's not like 7 we hang out. I think this is only the second time we 8 have actually seen each other face to face. All of my 9 interactions with Bob have b een very pleasant. They've 10 been cordial. I am confident that he and I probably see 11 the world very differently on many, many issues. But I 12 don't like I say, I don 't make this stuff personal. 13 Leave me and my family alone , and we are good. Start 14 fucking with little old Black ladies, and we are going 15 to have a problem. Bu t other than that, I don't really 16 care. I like Bob. He's been nice to me. I don't agree 17 with everything that I have heard , but I don't know that 18 everything I have heard is true. 19 Q. And by everything you h e ard, you me a n everything 20 you have heard from Mr. O'Boyle? 21 A. Yes. I mean, I think that --I thought that the 22 I thougbt the RICO lawsuit was ill adv i sed or a 23 whole host of reasons , n ot the l east of which i s making 24 a public records request , in a nd of itself, is not a 25 criminal act. I'm not a RICO attorney, so what d o I 800.211.DEPO (3376) EsquireSolutions .com RAS00000261 Case 9 :15-cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 31 of 57 JOEL C HANDL ER Vol ume 1 of 2 OBOYLE -vs-SWEET APPLE Feb ruary 24 , 2016 173 1 know? I watch the Sopranos, but what do I really know 2 about that kind of stuff. 3 I, frankly, have been very disappointed in the 4 approach that the establishment has taken, and Bob is 5 not the establishment, but he is an attorney for the 6 establishment, which d oesn 't make him a bad guy. I, 7 like most people , try --I think of people on the other 8 side of me, 11 other,11 as being somewhat monolithic, and I 9 recognize that's a fallacy . But I do think the 10 establishment's taking the wrong approach to try to 11 resolve the complaints they've got with people like 12 Marty O'Boyle. 13 I vehemently disagree with --I don•t know that 14 this is necessarily Bob's doing, bu t the Town going 15 after Chris O'Hare, I compl etely d isagree with that. 16 And my perception is, based particularly on a RICO 17 complaint, that there is sort of this lumping Chris and 18 Marty into the same cabal . I j ust don•t have any --my 19 experience with Chris has been nothing but I don't 20 have anything negative to say about Chris, a nd I'm 21 baffled as to why he's hanging out with Marty. But we 22 all make poor choices sometimes. 23 Q. So you met with Mr . Sweetapple? 24 A. Yes. 25 Q. And I believe you testified previously that you 800.211 .DEPO (3376) EsquireSol utions . com RAS00000262 Case 9 :15-cv -80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 32 of 57 JOEL CHANDLER Volume 1 of 2 OBOYLE -vs-SWEET APPLE February 24, 2016 178 1 about RICO is from watching the Sopranos. I don't 2 understand the ins and outs of RICO. What I think I 3 understand is that there has to be an underlying 4 criminal activity. I don't think that making a public 5 records request in and of 1tself, or even making 6 thousands of public records requests on the Town of Gulf 7 Stream is an illegal action . There may be a whole bunch 8 of other illegal actions. 9 I mean, I'm mys tified , really mystified, given 1 0 what I think are just clear evidence that I have 11 provided to anyb ody that wants to see it, that t h ere was 1 2 the unlicensed practice of law going on, both o n b ehalf 13 of Jonathan O'Boyl e and Denise DiMartini. I think that 14 there are really serious Bar issues as far as not having 15 e n gagement letters, and not providing closing 16 statements , a nd engag ing in sett l e ment n egotiations 17 without the consent of the client, and demanding 18 settlement a mounts that are beyond entitlements when I 19 think t hey 're being presented as entitlements. I can 20 thi nk of a whole bunch other i ss ues to go after them on. 21 I just don't agree wit h the public records part of it. 22 Q. During your discussions with Mr. Sweetapple, d i d 23 he ever s ay to you that h e felt Mr. O'Boyle was a 24 criminal? 25 A. I don't r e me mber him using those words. No. 800 .211 .DEPO (3376) EsquireSolutions . com RAS00000263 Case 9 :15-cv -80182-KAM Document 54 -1 Entered on FLSD Docket 07/2112016 Page 33 of 57 JOEL CHANDLER Volume 2 of 2 OBOYLE -vs-SWEETAPPLE February 24, 2016 249 1 today, I readily acknowledge that I know very little 2 about RICO prosecution, so I do recall having a 3 conversat ion with Marrett Hanna about it. And her 4 perspective as a former prosecutor is they're very 5 civil RICOs are very difficult to win. I was 6 particularly troubled, and I'm very confident that I 7 expressed to Bob and to Joann O'Connor, my 8 disappointment and concern that they were involving 9 Chris O'Hare . I have been, I t hink, very clear with 10 everybody t at I have ever talked to about this issue, 11 that I think that 's i l l advised , unfair . I don't think 12 he 's the bad guy here at all. 13 Q. Well, the RICO lawsuit was filed on February 12th 14 of 2015. Do you recall roughly how far before that this 15 conversation about a forthcoming RICO lawsuit happened? 16 A. I have no idea. 17 Q. Do you know whether it was 2014, 2015, or you 18 can't tell? 19 A. Already asked and answered. I don't know. 20 Q. Other than the one conversation we are talking 21 about with respect to RICO, do you recall having any 22 other conversations with Mr . Sweetapple about RICO, 23 racketeering? 24 A. I don't remember any specific conversations. 25 There was a brief period where Bob and I talked. I 800.211.DEPO (3376) EsquireSolutions. com RAS00000264 Case 9:15 -cv-80182 -KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 34 of 57 EXIBHIT ''E'' RAS00000265 MARTIN O'BOYLE Plaintiff, V. UNITED STATES DISTRICT COURT SOUTIIERN DISTRI CT OF FLORIDA WEST PALM BEACII DIVISION CAS E NO: 9:14-cv-81250-K/\M ROBERT/\.. SWEET APPLE AND MAYOR SCOTT MORGAN, Defendants. ------------------------------~' AFFIDAVIT OF CHRISTOPHER F. O'HARE BEFORE ME , the und e rsigned authority , personally appeared CHRISTOPIIER F. O'HARE ., who. upon be ing first duly sworn, depose s and says: I . My name is CHRISTOPHER F. O'HARE. I am over the age of eighteen (18) and am competent to testify in this matter. 2. I have personal knowledge of the fact s here , and , if called as a witness , could testify competently the reto. 3. I ha ve approximately two dozen public rec o rd s s uit s filed against the Town of GulfStream for denjal ofpublic records since Jun e 18 ,2013 . None ofthcse cases have ye t to be resolved. 4. As of September 2014 , Mark lianna. Esq . represented me in at lea st ten (10) of tho se public records cases, as well as other non-public rec o rd s cases. I am al so re pre sent ed in other public record s s uits and non-public record s laws uits by attorneys with The O'Boyle Law Pa ge 1 of 7 I EXHIBIT RAS00000266 Finn. Loui s R oeder was, a nd is , m y pe rsonal coun se l. 5. I, along with Mark Hanna and Lo u Roeder, was invited by Attorney Robert Sweetapple to m eet with the Town 's M ayor, Scott Morgan, along w ith an o ther of the Town 's attorn eys, Joanne M. O 'Connor, at Sweetapple's office on September 3, 20 14 . 6. T he purpose of the Septe mber 3, 2 01 4 meeting was to initiate settle ment discussions directly between the Defendant and me limited to th ose "certain" pending pub lic reco rds cases h a ndl ed by Mark Hanna. As s uc h , Sweetapp le did no t invi te an y a ttorneys li·o m th e O'Boyl e Law Fi rm. In reliance upon Sweetapple's limitation of the subject m a tter, I did not ex pect to d iscuss anything except these certa in cases a nd I the refore did not think it necessary to have anyone from the O'Boyle Law Firm who represented me in those o ther cases be present to represent m e at this meeting . 7 . Based upon m y understanding of the limited scop e of o ur planned di sc uss ion I s ig ned a n agreem e nt to keep confide ntial any di scussion made during the settlement confer e n ce a bo ut those certain pe nding cases. 8. T he September 3 , 2 014 settlement conference started with di scussions regarding only th ose certain publi c records cases, and o nl y th ose public records cases handled by Mark Hanna, but Sweeta pple th en c ha nged to pi cs and m ade a s peech a bout Martin O 'Boyle. Sweetapp lc d escribed O 'Boyle as a nti -social and mentally un s table. Swcctapple rante d abou t O 'Boyle 's beha vior and described O'Boyle's act ions in a ve ry unfavorable and d e rogatory manner. Sweetapple talked about hi s pl anned RI CO action again st O 'Boylc. Swcetapp le said O 'Boy lc was using me a nd Sweetapp le kn ew I wasn 't lik e thi s. He said li fe is too s hort and I should spend my time w ith m y famil y a nd no t doing O 'Boy le's d irt y work . Sweetapple call ed O 'Boyle a narci ssist and menta ll y un sta bl e -h e used th e word "psychopath .'' Sweetapple Page 2 of7 RAS00000267 ap peare d a ngry w hen he sajd thi s and he j abbed th e a ir with hi s fin ge r for emphas is. Swcetappl e 's bod y language suggested to me that hi s e mphat ic sta tements were no t hi s opin io n but w he re facts he knew to be tru e. 9. Sweetapple returned to discussing m y cases but he expa nded th e discussion to include all m y cases against th e Town of Gulf Stream -not just the cases J had agree to d iscuss in confidence. Sweetapple insis ted th at m y coun sel in those other cases, a tt orneys at th e O 'Boyle Law Firm, were not real attorneys and they were e ngaged in the unlicen sed practice of law which he described as a felony . He said the Town would never pay me their attorney fees because the O 'Boy le Jaw firm was not a legitima te law fi1m. I 0 . Sweetapplc said unl ess I cooperated with th e Town aga in st 0' Boyle a nd dismissed my cases I would be named a co-defend a nt, accused of being a co-conspirator. in a RI CO scheme with Martin O'Boyle to extort th e Town o f G ulf Stream . I und erstood that when Mr. Sweetapple said th e word 'extot1' or referred to 'RI CO,' he meant a criminal act of s ubsta nti a l m agnitude. 11. Whe n asked O'Connor was asked if she agreed w ith Sweetapplc, O'Connor said sh e th ought what r was doing with th e public records cases was despicable; and th at she th o ught I was har a ng uing Gulf Stream w ith my record requests. S he described my request s for public record s as frivol o us . She said that would soon c hange, th at Jones -Foster was well connected . 12. Sweetapp le went o n to describe hi s lawsuits against th e C it y o f Boca Raton and how I was was tin g my time try in g to sue Gulf S trea m. He ta l ke d about how common it wa s for s mall Town s to beh ave badly and nothing I did was go in g to c hange th at. 13. Sweet app le agai n said he inte nded to s ue me as a co-conspira tor in a sc heme to '·shake down " the Town of G ul f St ream and abuse t he legal pro cess ; that I was invo lved in the Page 3 of7 RAS00000268 unlice nsed practice of law , a nd engaged in extortion with O'Boyle. He agai n said I could avoid being included in the RICO la wsui t if I agreed to cooperate with him . 14 . Mayor Morgan added th a t th e Town had witnesses to support their RICO complaint. 15. Sweetapplc th en went tluough of li st of things that a witne ss, Joel Chandler, told him about the O'Boy le Law Finn and Martin 0' Boyle's operations. He even said that Chandler wanted to detail my invo lvement; but th at he, Sweetapple, had protected me by preventing him from saying anything about me -yet. 16. I later discovered that Chandler did , indeed, want to talk to Swcetapple about me and my public records cases; but Chandler wanted to make it clear to Sweetapple that , in hi s experience and opinion, I had nothing to do with the Town's RICO claims. Chand ler had to ld Sweetapple and O'Connor that I had nothing to do w ith O 'Boyle 's activities. and th at the y should not involve me in any RICO complaint. Sweetapple failed to ment ion any of that and tailed t o accurately present fact s conveyed by Chandler. Chandler later wrote that he told Swectapplc and O 'Connor I had done nothing wrong, that I had nothin g to do with the RICO all egations and that I was a victim of the Town's foolishness. 17. Mayor Morga n then accused me of trying to shake down the Town, claim in g that Martin O'Boy le and I were link ed together ; and that he became Mayor to spearhead an aggressive defens e. 18. Mayor Morgan then proposed a "non-negotiable dismissal" of AI.L my lawsuits against the Town ; if I refused , I wou ld be brought into the RICO claim as a detendant. He also said th at all parti es who use d th e O'Boyle Law f-irm were legitimate d e fendant s in the RICO complaint. Page 4 of7 RAS00000269 19 . Sweeta pplc said that the Town wa s con s ultin g with Gerry Richman, an ex c rt on RICO. who was building a case agains t Martin O'Boyle. Swectapple s aid that they already had a 40-pagt! "indictment" ready to go: and that the State Att o rney's offi ce was in ve s ti gatin • as well. It wa s clear to me that Sweetapple and Morgan were threatening criminal action again s t me if I refused to do as they said. 20. When asked if Richman was working for the Town, Swectapple said Richman was "co-counsel" and was working for him, Swectapplc. 2 1. Mayor Morgan then said that he had made his offer and was "absolutel y inflex ibl e." He said he was go ing to make s ure the RICO case included me if I didn't agree to hi s demands. 22. When Hanna asked Swee tappl e how he could go from public records reque st s to a RI C O claim, Sweetapple said there wa s a conspiracy between Martin O'Boyle and me. 23. When as ked how Mayor Morgan had the power to ensure tha t I be excluded from the RI C O case, Sweetappl e said he was planning on ta lking to each of the Town Commissioners one -on-one to expl a in the offer and to ge t each o ne of th e m to s ign off. The way the s tate ment wa s made I und erstood that Sweetapple was go in g to private ly solicit a nd pre - arrange a public vo te . 24. Finally , Sweetapple s aid the RICO complaint was tina li zcd a nd tha t "the tra in was abo ut to le ave the s tation ;" so if I did not want to be included. I would need to get thi s resolved as soon as po ss ible . 25 . I unders tood 1l·o m Sweetapple's forc e ful presentation and the con tex t and tenor o r the way Sweetapple made hi s statements at th a t moment th at Swcetapp le made them w ith the Page S of7 RAS00000270 intention of purposefully harming \ltartin ()'Royle's r~putati on. 11 \Vas ap parent to me that Sw~c tapple thought any association of me w ith o· Bo yle would be harmful tom..:. As a result of Swee tapple's prese ntation I felt wary of Martin 0 '13 oyle. su. picious of the ()"J3oyk law firm and ex tremely apprehensive about th e RICO threat. 26. Rather than having a s~ttkmcnt di sc ussion. I fel t Swl!etappk's aggrcs i w po~turing and vehement statements h) be a thrt:at aga ins t me . Swectapplc's rcfcrcnc~s to indi ctment and the state attorney in t h~: meeting.. made me unsure whether Sweetapplc's RICO claim wo uld come before an indictment or after. I remember fcding ~.·m o ti o nally disturbed after lea,·ing tha t meeting about the possibilit y of H <:riminaf indictment at:a ins t me . 2520 A\·enue A u Solt·il Street Addn:ss (/u/(. treum Florida 3J.f83 City Stare lip State of Florida Co un ty of Palm Beach {( Swom to (or affirmed) and subscribed herore me this -~ day of -)i .... _UJ20 16. bj Christopher F. O'Hare. U @/. p~rso n ally known IO 111l' or 0 hav ing presented __ -------------_____ :IS ide ntification. Pug~ 6 of? RAS00000271 (juu l l !ha~ i'v"- (Sig natu rc of No tary Public. SL<9f,pf F lorida) ~J' ..... '<t. Tl~ L MARTIN ' • ., MY COMMISSION t FF 129242 Co mm issio n \f0. • EXPIRES:July10,2018 ·~·t"'"""~ lleMtdlllniB~Il~rySertkll · I , ~ 1 t-1 £ t tu;t I'? c t t,..; (Print. type o r stamp name of No tary P ublic) Pagc 7of7 RAS00000272 Case 9:15 -cv-80182-KAM Document 54-1 Entered on FLSD Docket 07/21/2016 Page 42 of 57 EXIBHIT ''F'' RAS00000273 Case 9:15-cv-80182-KAM uocument 8 Entered on FLSD Docket 02/18/2015 Page 1 of 19 AO 440 (Rev. 06/12) Smmnous in a Civil Action UNITED STATES DISTRICT COURT for the Soutl1ern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plaintiff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Dqf'endant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Martin E. o:soyle . · 23 South Hidden Harbor Dnve Gulf Stream, FL 33483 A lawsuit has been filed against you. Witlrin 21 days after service of this summons on you (not counting the clay you received it)--· or 60 days if you are the United States or a United States agency, or an officer or employee ofthe United States described in .Feel. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to tl1e attached complaint or a motion tmder Rule 12 of the Federal Rules of Civil Procedm·e. The m1swer or motion must be served on !he plaintiff or plaintiff's attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, P.A. One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, jndgment by default will be entered against you ior tl1e relief demanded in the complaint. You also must file yonr answer or motion with the comt. SUMMONS Date: Feb 18, 2015 sl Juan Ulacia Select Coctrfh6use D•pcty Clitrk U.s. Dlstri tt Courts RAS00000274 Case 9:15-cv-80182-KAM uocument 8 Entered on FLSD Docket 02/18/2015 Page 2 of 19 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Southem District of Florida Town of Gulf Stream, and Wantman Group, Inc. P/aintij}(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Dejkndant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Christopher O'Hare . · 2520 Avenue Au Solei! Gulf Stream, FL 33483 A lawsuit has been filed against you. Within 21 days after service of this stmllnons on you (not counting t!te day yon received it)-or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (.:1)-you must serve on the jJlaintiffan answer to the attached complaint or a motion m1der Rule 12 of the Federal Rules of Civil Procedme. The answer or motion must be served on llre plaintiff or plaintiffs attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, P.A. One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If yon fail to respond, judgment by default will be entered against you lor the relief demanded in the complaint. You also must file your answer or motion with the com!. Date: Feb 18, 2015 SelectCourthouse Steven Clerk of Camt SUMMONS S/ Juan UJacla Depwcy Clerk U.S.District Courts RAS00000275 Case 9:15-cv-80182-KAM uocument 8 Entered on FLSD Docket 02/18/2015 Page 3 of 19 AO 440 (Rev. 06/12) Sununons in a Civil Action UNITED STATES DISTRICT COURT Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plaintiff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) William Ring . · clo The O'Boyle Law F1rm 1286 W. Newport Center Drive Deerfield, FL 33483 A lawsuit has been filed against you. Within 21 days after service of this summons on yon (not counting the day you received it) -or 60 days if you are the United States or a United States agency, or an offker or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached wmplaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, PA One Clearlake Centre, Suite 1504c_ __________________ _ 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by defimlt will be entered against you for the relief demanded in the complaint. You also must file yonr aiL>wer or motion with the court. SUMMONS Date: Feb 18,2015 sl Jurm Wacia Se/~ctCourthmlse Deplil:y Clerk U.S. mstrld Courts RAS00000276 Case 9:15-cv-80182-KAM uocument 8 Entered on FLSD Docket 02/18/2015 Page 4 of 19 AO 440 (Rev. 06112) Snmmotltii in a Civ-il Action UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plaintiff(s) V, ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No, 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et aL, Dejendant(s) SUMMONS IN A CIVIL ACTION To· (Defendant's name and address) Jonathan O'Boyle , 23 South Hidden Harbor Drive Gulf Stream, FL 33483 A lawsuit has been filed against you, Within 21 days ail:er service ofthis summons on you (not counting the day yon received it) -or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. K Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to tbe 11ttached complaint or a motion under Rule 12 of the Federal Rules of Civil Proced!1fe. The apswer or motion must be setved on the plaintiff or plaintiff's attorney, whose name and address are: Enc M, Sodhi, Esq. Richman Greer, PA One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you t:1il to respond. judgment by default will be entered against you fbr the relief demanded in the complaint, You also must file your answer or motion with the comt. SUMMONS Date: Feb 18,2015 sf Juan Ulacia Deputy Cl€rk U ,S, District Cmrrts RAS00000277 Case 9:15-cv-80182-KAM uocument 8 Entered on FLSD Dockel 02/18/2015 Page 5 of 19 AD 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gull Stream, and Wantman Group. Inc. Plainnjf(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle. Christopher O'Hare, et al., Defendant(s) SUJ\!IMONS IN A CIVIL ACTION To: (Defendant's name and address) Giovani Mesa . cfo The O'Boyle Law F1rm 1288 W. Newport Center Drive Deerfield Beach, FL 3344.2 A lawsuit has been filed against you. Within 21 days after service of this S1lllllllons on you (not counting t!1e day yon received it)-or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedme. The auswer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, PA One Clearlake Centre. Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint You aho must file your answer or motion with the conrt. SUMMONS Feb 18,2015 Date: ________ _ sf Juan UJacia DlCputv Clerk U.S. District Courts RAS00000278 Case 9:15-cv-80182-KAM l.Jocument 8 Entered on FLSD Docket u2/18/2015 Page 6 of 19 AO 440 (Rev. 0(1/12) Snnt1ilons in a Civil Action UNITED STATES DISTRICT COURT for the Sou them District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plainnff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Nicklaus Taylor c/o The O'Boyle Law Firm 1286 W. Newport Center Drive Deerfield Beach, FL 33442 A lawsuit has been filed against you. Within 21 days after service ofthis summons on you (not counting the day you received it)-or 60 days if you are the United States or a United States agency. or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion 1mder Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, P.A. One Clearlake Centre, Sllite 1.504 250 West Palm Beach,. FL 33401 (561) 803-3500 If yon fail to respond, judgment by default will be entered against you for the relief demanded in the co!11plaint. You also must file your answer or motion with the cmui. Feb 18,2015 Date: ________ _ Steven M. larimore Clerk of Court SUMMONS sl Ju:m UJacia Deputy Clerk U.S. District Courts RAS00000279 Case 9:15-cv-80182-KAM uocument 8 Entered on FLSD Docket v2/18/2015 Page 7 of 19 AO 440 (Rev. 06/12) Sununom; in a Civil Act!on UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plainnff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.9: 15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et a.l., Dejendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Ryan Witmer 474 Elmwood Avenue Suite 204 Buffalo, NY 14222 A lawsuit has been filed against you. Within21 days after service of this stmmtons on you (not counting the day you received it)-or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) --you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of tile Federal Rules of Civil Prucedure. The answer or motion must be setved on tl1e plaintiff or plainti!I's attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, PA One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by default will be entered against you for the relief denlllnded in the (O!Dplaint. You also must file your answer or motion with the comt. SUMMONS Date: Feb 18,2015 sf Ju:m U,laci•~ l%•puty Clerk U.S. District Courts RAS00000280 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket 02/18/2015 Page 8 of 19 AO 440 (Rev. 06112) Smruuons in a Ci-vi.l Action UNITED STATES DISTRICT COURT for the Southem District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plainti.IJ(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyla, Christopher O'Hare, et aL, Defendant(s) SUMMONS IN A CIVIL ACTION To· (Defendant's name and address)Airline Highway, LLC · · · clo Sheila O'Boyle, Registered Agent 23 North Hidden Harbour Drive Gulf Stream, FL 33483 A lawsuit has been filed against you. With.in 21 days after service of this summons on you (not counting the day you received it) ~or 60 days if you are the United States or a United States agency, or an officer or employee ofthe United States described in Feel. R. Civ. P. 12 (a){2) nr (3)-you must serve on the plaintiff an answer to the attached complaint or a motion tmder Rule 12 of tile Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose uame and address are: Eric M. Sodhi, Esq. Richman Greer, P.A. One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If yon fail to respond, judgment by default will be entered against you for tl1e relief demanded in the complaint. You also must file your answer or motion with the court. SUMMONS Feb 18, 2015 Date: _______ _ sf Juan Ulacia ~pwtyCierk Steven U.S. Distri-ct C01.1 rts Clerk of Court RAS00000281 Case 9:15-cv-80182-KAM uocument 8 Entered on FLSD Docket vZ/18/2015 Page 9 of 19 AO 440 (Rev .. 06/12) Summons .in a Civil Ac!·ion UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plainti.ff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Defondant(s) SU!VIMONS IN A CIVIL ACTION To: (Defendant's name and address) Commerce GP, Inc. . c/o Sheila O'Boyle, RegJsterecl Agent 1280 W. Ne.vport Center Drive Deerfield Beach, FL 33442 A lawsuit has been filed against you. Within 21 days after service ofthis sm!llllOllS on yon (not counting the day you received it)-or 60 days if you are the United States or a United States agency, or an officer or employee ofthe United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedme. The answer or motion must be served on the plaintiff or plaintitT's attomey, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, P.A. One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you !ail to respond, judgment by detlmlt will be entered against you for the relief clemandecl in the complaint. You also must file yom answer or motion witl1 the cotut. Feb 18, 2015 Date: --------· Si!/ectCourthouse. Steven M. Larimore Clerk of Court SUMMONS sl Juan Ulaci<? Deputy Clerk US. District Courts RAS00000282 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket 02/18/2015 Page 10 of 19 AO 440 (Rev. 06/12) S:u011nons in a Civil Action UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plaintij}(o~ v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) CG Acquisition Co., Inc .. c/o Sherla O'Boyle, Regrstered Agent 1280 W. Newport Center Drive Deertield Beach, FL 33442 A lawsuit has been filed against you. Within 21 days after service of this sunnnom on you (not counting the day you received it)-or 60 days if you are the United States or a United States ag~ncy, or an officer or ~mployee ofthe United States described in Fed. R. Civ. P. 12 (a)(2) or (3) -you must: serve on the plaintiff an answer to tlre attached complaint m a motion under Rule 12 of the Federal Rules of Civil Procedure. TI1e answer or motion must be served on tire plaintiff or plaintiff's attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, P .A. One Clearlake Centre, Suite 1504 250 We.st Palm Beach, FL 33401 (561) 803-3500 If you fall to respond, judgment by defimlt will be entered against you for tl1e relief demanded in the complaint. You also must file your answer or motion with tl1e court. SUMMONS Date: Feb 18,2015 s1 Juan Ulacia DepL!ty Clerk U.S. District Courts RAS00000283 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket U2/18/2015 Page 11 of 19 AO 440 (Rev. 06/12) Sullllnons in a Ci;r:il Action UNITED STATES DISTRICT COURT for the Southem District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plainttjf(s} v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.9: 15-cv-80182-I<AM Martin O'Boyle, Christopher O'Hare, eta!., Defendnnt(s) SUMMONS IN A CIVIL ACTION To: (Defendtmt's name and address)CRO Aviation, Inc. . clo Martin O'Boyle, Registered Agent · 1280 West Newport Center Drive Dee1field Beach, FL 33442 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the clay you received it) -or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Pmced!ll'e. The E'JlSwer or motion must be served on the plaintiff or plainti1I's attorney, whose name and address are: Enc M. Sodhi, Esq. Richman Greer, P.A. One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by default will be entered against you for the relief demanded in tbe complaint. You also must file your answer or motion with tbe court. SUMMONS Date: Feb 18, 2015 s/ Juan Ulacia SeledC:oarthduse D•puty Cl~rk U.S. oistri ct Courts RAS00000284 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket 02/18/2015 Page 12 of 19 AO 440 (Rev. 06/12) Sm:runons: ill a Civil Action UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plaintiff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Asset Enhancement, Inc. · c/o Sheila O'Boyle, Registered Agent 23 North Hidden Harbour Drtve Gulf Stream, FL 33483 A lawsuit has been filed against ymt Within21 days after service of this summons 011 you (not counting the day you received it) -or 6{) clays if yon are the United States or a United States agency, or an officer or employee ofthe United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the jllaiutiff or plaintiff's attorney, whose name and address are: Eric M. Sodhi, Esq. · Richman Greer, P.A. One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If yon fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file yam answer or motion with the com!. SUMMONS Date: Feb 18,2015 sl ~Jw:m UJacla Oeputv Clerk US. Dlstri ct Court~ RAS00000285 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket OL/18/2015 Page 13 of 19 AO 440 (Rev. 06/12) Smrut1011s in a Civil Action UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. PlainrijJ(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et at., Defendant(s) SUJ\IIMONS IN A CIVIL ACTION To: (D•fendant's name and address) Commerce Realty Group, Inc. c/o Sheila ()'Boyle, Registered Agent 23 N. Hidden Harbour Drive Gulf Stream, FL 33483 A lawsuit has been filed against you. With.in2l days afler service of this summons on you (not counting the day yon received it)-or 60 clays if you are the United States or a United States agency, or an officer or employee ofthe United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, P .A. One Clea.rlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by default will be entered against you tor tl1e relief demanded in the complaint. You also must file yom· answer or motion witl1 the cmn·t. SUMMONS Feb 18, 2015 Date: ___ _ sf Juan Ulacla f;i!ledCourthouse Deputy Clerk U.S. District Cow rts RAS00000286 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket 02/18/2015 Page 14 of 19 AO 440 (Rev. 06/12) Sumt11011s in a Civil Action UNITED STATES DISTRICT COURT for the Southern District ot' Florida Town of Gulf Stream, and Wantman Group, Inc. Plainffjf(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, eta!., Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Public Awareness lnstitule, Inc. c/o Mart1n O'Boyle, Registered Agent 1286 W. Newport Center Drive Deerfield, FL 33483 A lawsuit has been filed against you. Within 21 days after service of this sunnnons on you (not counting the day you received it) -or 60 days if you are the United States or a United States agency, or an officer or employee of1l1e United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an arr.swer to the attached complaint or a motionm1der Rule 12 of 1l1e Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, PA One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by default will be entered against you for the relief demanded. in the complaint. You also must file your answer or motion with tl1e court. SUMMONS Date: Feb 18, 2015 sf Juan U/acla Deputy Clerk U.S. District Courts RAS00000287 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket UZ/18/2015 Page 15 of 19 AO 440 (Rev~ 06/12) Sunumms inn Civil Action UNITED STATES DISTRICT CotJRT for the Southern Distlict of Florida Town of Gulf Stream, and Wantman Group, Inc. Plainti!.ffs) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Defendant(s) SUJ\Ili\-iONS IN A CIVIL ACTION To: (Defendant's name and address)Cilizen~ Awarenes.s Foundation, Inc, c/o Chnstme DeFilippis, Registered Agent 8121 SE Orchard Terrace Hobe Sound, FL 33455 A l~wsuit has been filed against you. Within 21 days after service of this smm110ns 011 you (not counting the clay you received it)-or 60 days if you are the United States or a United States agc,1cy, or an officer or employee of the United States described in FeeL R. C:iv. P. 12 (a)(2) or (3)-you must: serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be se1ved on the plaintiff or plaintiffs attorney, whose :1ame aud address are: Eric M, Sodhi, Esq. Richman Greer, PA One Cleaflake Centre, Suite 1504 250 West Palm Beach, FL 33401 {561) 803-3500 If you fail to respond, jndgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. SUMMONS Feb 18,2015 Date: --------~ sf Juan UJacia Deputy Clerk Steven U.S. District. Courts Clerk or Court RAS00000288 RAS00000289 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket u2/18/2015 Page 17 of 19 AO 440 (Rev. 06/12) Smumom; in a Civil Ac.tion UNITED STATES DISTRICT COURT for the Southem District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plaintiff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80 182-KAM Martin O'Boyle, Christopher O'Hare, et aL, Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name m1d address)Stapdirtygov~mment, LLC c/o W1ll1am R1ng 1286 W. Newport Center Drive Oeeliield, FL 33483 A lawsuit has been filed against you. Within 21 days after setvice of this sunmtons on you (not counting the day you received it)-or 6{) days if you are the United States or a United States agency, or an officer or employee of the United States described in Feel. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motionlmder Rule 12 of the Federal Rules of Civil Proced\u:e. The apswer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Enc M. Sodhi, Esq. Richman Greer, P.A. One Clearlake Centre, Suite 1504 250 West Pafm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your m1swer or motion with the court. SUMMONS Feb 18,2015 Date: --------~ sf Juan Ulacia Si!l~ctCouithCiuse Steven Deputy C.lerk U .5. Distrl ct Courts Clerk of Court RAS00000290 Case 9:15-cv-80182-KAM Ducument 8 Entered on FLSD Docket uL/18/2015 Page 18 of 19 AO 440 (Rev. 06/12) Summons iu a Civil Action UNITED STATES DISTRICT COURT for the Southern District of Florida Town of Gulf Stream, and Wantman Group, Inc. Plaintiff(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et aL, Defendant(s) SUJVlMONS IN A CIVIL ACTION To: (Defendant's name and address) Camme_rce GroLJp, Inc .. clo Sheila O'Boyle, Registered Agent 23 N. Hidden Harbour Drive Gulf Stream, FL 33483 A lawsuit has been filed against you. Within 21 days after service ofthis swmnons ou you (not counting the day you received it)-or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion1mder Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attomey, whose name and address are: Eric M. Sodhi, Esq. Richman Greer, PA One Clearlake Centre, Suite 1504 250 West Palm Beach, FL 33401 (561) 803-3500 If yon fail to respond, judgment by default will be entered against yon for tlre relief detlllmded in the complaint. You also must file yom allSwer or motion with tlre com:t. SUMMONS Feb 18, 2015 Date: ________ _ sl Juan Ulacla S~liii:tCoiJrcthouse Deputv cterk U.S. Oistr;ct Courts RAS00000291 Case 9:15-cv-80182-KAM Document 8 Entered on FLSD Docket u.</18/2015 Page 19 of 19 AO 440 (Rev. 06/12) Summons in a Civil Action TJNITED STATES DISTRICT COURT for the Southern District ofF!orida Town of Gulf Stream, and Wantman Group, Inc. PlaintifJ(s) v. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 9:15-cv-80182-KAM Martin O'Boyle, Christopher O'Hare, et al., Defendant(s) SUMMONS IN A CIVIL ACTION To· (Dejondant's name and address) The O'Boyle Law Finn, P.C., Inc. · c/o William Ring, Registered Agent 1286 W. Newport Center Drive Deerfield, FL 33483 A lawsuit has been flied against ymt Within2l days afler service oftl1is summons on you (not counting !lre day you received it)-or 60 days if you are the United States or a United States agency, or an officer or employee of the Utrited States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion tmder Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be se1ved on the plaintiff or plaintiff's attorney, whose name and address are: Eric M. Sodni, Esq. Richman Greer, P.A. One Clearlake Centre, Suite ·1504 250 West Palm Beach, FL 33401 (561) 803-3500 If you fail to respond, judgment by ddlmlt will he entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. Feb 18,2015 Date: ________ _ Se./~et Coiittflouse. Steven M •. Larimore Clerk of Court SUMMONS s! Juan Ulacla D•plity Clerk U .5. District Courts RAS00000292 Case 9:15-cv-80182-KAM 1 ...-ocument 1 Entered on FLSD Dock1L _ J2/12/2015 Page 1 of 49 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.: ________ _ TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and W ANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, vs. MARTIN E. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, a11 individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC., Defendants. -----------------~/ CLASS ACTION COMPLAINT I. Introduction. CLASS ACTION I. The TOWN OF GULF STREAM ("Gulf Stremn" or "Town") brings this lawsuit as a class action, by and on behalf of state and local municipalities, municipal agencies, and their 1 RAS00000293 i I Case 9:15-cv-80182-KAM · .Jocument 1 Entered on FLSD Dockt... 02/12/2015 Page 2 of 49 private contractors located in the state of Florida that have been victimized by a scheme to defraud and extort being carried out by a RICO Enterprise created by, and composed of, the Defendants. Through their RICO Enterprise, the Defendants have associated-in-fact with the sole purpose of unlawfully and illegally extracting settlement payments from the Class Members by first using the mails and the wires to deliver and advance frivolous public records request that are often intentionally inconspicuous. Then, the Defendants, through their RICO Enterprise, immediately use the mails and the wires to extort their victims by demanding that these municipal entities and agencies immediately settle with them and pay their allegedly incurred attorneys' fees and costs as provided for in the public records statute, or, face protracted litigation and a flurry of additional frivolous public records request and lawsuits. The amount demanded by the Defendants to reimburse them for their attomeys' fees and costs is fraudulent- far exceeding the actual costs and fees incurred in the frivolous public records request, resulting in a profit windfall for the Defendants. At least one Court has labeled these actions as an "unreasonable and flagrant abuse of the state [Public Records Act]," amounting to "nothing more than a scam." (See ~18, p.6, Final Order Denying Relief Under Public Records Act, entered by the Hon. Jack M. Schemer, Circuit Court Judge, Duval County, Florida, attached hereto as Exhibit "A."). 2. The Defendants are prolific in their efforts-from March 5, 2013, through July 17, 2013, the RICO Enterprise filed over 400 public records request with Gulf Stream alone. From August of 2013 through present, the RICO enterprise filed more than 1,500 additional public records requests bringing the total number of public records requests to almost 2,000. RICHMAN GREER, P.A. Miami• West Palm Beach 2 RAS00000294 Case 9:15-cv-80182-KAM' ..~ocument 1 Entered on FLSD Dock'L.. J2/12/2015 Page 3 of 49 (See the Public Records Request Log attached hereto as Composite Exhibit "B").1 For purposes of context-Gulf Stream is a tiny community, having a population of 974 residents and only 17 full time employees (four of whom work at Town Hall), with a land mass of less than one square mile. 3. The Defendants also target private entities that have contracted with municipalities, arguing that by virtue of their business relationship with a public entity, they are subject to the public records laws of Florida. The Wantman Group, Inc. brings this lawsuit as a class action on behalf of itself and other private entities that have been victimized by Defendants' scheme to defraud and extort. 4. The Wantman Group is a multidisciplinary consulting finn which provides engineering, surveying and mapping, and environmental and planning services. The Wantman Group has six offices throughout the state of Florida. As part of its business, the Wantman Group has signed contracts with various municipalities and government agencies. For example, the Wantman Group signed a contract with the South Florida Water Management District, ("SFWMD") through which it was to provide professional services to the SFWMD. II. Jurisdictional Allegations. 5. As this is an action brought under 18 U.S.C. §§ 1961, 1962 and 1964, this Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S. C. §§ 1331. Additionally, this Court has original jurisdiction over the subject matter of this action pursuant to 18 U.S.C. §§ 1964 (a)-( c). Finally, this Comt has personal jurisdiction over the Defendants pursuant to 18 U.S.C. § 1965. 1 This chart includes all public records request made to the Town, only a handful of which were not done by the Defendants. RICHMAN GREER, P.A. Miami• West Palm Beach 3 RAS00000295 Case 9:15-cv-80182-KAM 1 ...Jocument 1 Entered on FLSD DoelL_ 02/12/2015 Page 4 of 49 6. Venue is appropriate in this district pursuant to 18 U.S.C. § 1965(a) as well as 28 U.S.C. § 139l(b)(l) and (2), as the Defendants reside in this district and a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this district. III. Parties. 7. Plaintiff, TOWN OF GULF STREAM, is a mtmicipality organized and existing under the laws of the State of Florida. 8. Plaintiff, W ANTMAN GROUP, INC., is a Florida corporation, which maintains its principal place of business at 2035 Vista Pkwy, Suite 100, West Palm Beach, Florida, 33411 in Palm Beach County, Florida. 9. Defendant MARTIN E. O'BOYLE, is a resident of Florida, residing in Palm Beach County, and more specifically, in the Town of Gulf Stream. Martin O'Boyle is also: (i) the President and owner of Defendants Commerce Group, Inc., Commerce GP, Inc., Commerce Realty Group, Inc., and CRO Aviation, Inc.; (ii) the sole member of Defendants Stopdirtygovemment, LLC, Our Public Records, LLC and Airline Highway, LLC; and (iii) a director of Defendant Public Awareness Institnte, Inc. I 0. Defendant WILLIAM F. RING ("Ring") is an attorney licensed to practice law in the state of Florida, and upon infonnation and belief, is practicing with and a partner or shareholder of Defendant The O'Boyle Law Firm, P.C., Inc., as well as its registered agent. Ring is also: (i) Vice-president of Defendants Commerce Group, Inc., CG Acquisition Co., Inc., Commerce Realty Group, Inc., and Asset Enhancement, Inc.; (ii) the founding President of Defendant Citizens Awareness Foundation, Inc., (iii) and the registered agent for Defendants Our RICHMAN GREER, P.A. Miami• West Palm Beach 4 RAS00000296 I 1 Case 9:15-cv-80182-KAM · ._.~ocument 1 Entered on FLSD Dockt.. 02/12/2015 Page 5 of 49 Public Records, LLC, and Stopdirtygovernment, LLC. Ring has worked for Martin E. O'Boyle in some capacity for at least 25 years. 11. Defendant CHRISTOPHER O'HARE ("O'Hare") is a resident of Florida, residing in Palm Beach County, and more specifically, the Town of Gulf Stream. O'Hare is also a client of Defendant The O'Boyle Law Finn, P.C., Inc. 12. Defendant JONATHAN R. O'BOYLE is a resident of Florida, residing in Palm Beach County, and while not an attorney that is licensed to practice law in Florida; he is the founding principal of Defendant The O'Boyle Law Firm, P.C., Inc. and cun·ently its President, sole director and manager. Jonathan O'Boyle is the son of Defendant Martin O'Boyle, and is also a director of Defendant Public Awareness Institute, Incorporated. 13. Defendant DENISE DEMARTINI ("DeMartini") is a resident of Florida, residing in Martin Cotmty. DeMartini is also: (i) an employee of Defendant Commerce Group, Inc.; (ii) Secretary of Defendant Commerce Realty Group, Inc.; and (iii) the current President and director of Defendant Citizens Awareness Foundation, Inc. DeMartini, while not a lawyer, managed the operations of Defendant The O'Boyle Law Finn during the time at issue in this suit. Like Defendant Ring, DeMartini has worked for Martin O'Boyle for more than 25 years. 14. Defendant COMMERCE GROUP, INC. ("Commerce Group") is a Florida Corporation with its principal place of business located at 1280 W Newport Center Dr., Deerfield Beach, Florida 33442. Commerce Group is run by Martin O'Boyle. 15. Defendant CITIZENS AWARENESS FOUNDATION, INC. ("CAFI''), purports to be a Florida non-profit corporation, with its principal place of business located at 1280 West RICHMAN GREER, P.A. Miami• West Palm Bea'h 5 RAS00000297 Case 9:15-cv-80182-KAM .Jocument 1 Entered on FLSD DoelL, 02/12/2015 Page 6 of 49 Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O'Boyle, together with his son Jonathan O'Boyle and Defendant Ring, created CAFI in or around January of2014. 16. Defendant STOPDIRTYGOVERNMENT, LLC, ("Stopdirtygovernment" or "SDG") is a Florida limited liability company with its sole member being Martin O'Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 17. Defendant OUR PUBLIC RECORDS, LLC, ("OPR") is a Florida limited liability company with its sole member being Martin O'Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O'Boyle created OPR in or around April of2013. 18. Defendant PUBLIC AWARENESS INSTITUTE, INC. ("PAl") purports to be a Florida non-profit corporation with its principal place of business located at 1280 West Newpmi Center Drive, Deerfield Beach, Florida 33442. Defendants Martin O'Boyle and Jonathan 0 'Boyle, along with their family member Sheila 0 'Boyle (wife of Martin and mother of Jonathan), are the directors of PAl, which was created in or around May of2013. 19. Defendant AIRLINE HIGHWAY, LLC ("AH") is a Florida limited liability company with its sole member being Martin O'Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 20. Defendant, COMMERCE GP, INC. ("Commerce GP"), 1s a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O'Boyle is the President of Commerce GP. RICHMAN GREER, P.A. Miami• West Palm Beach 6 RAS00000298 I i Case 9:15-cv-80182-KAM Jocument 1 Entered on FLSD Dockt.. 02/12/2015 Page 7 of 49 21. Defendant CG ACQUISITION CO., INC. ("CGA"), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O'Boyle is the Director of CGA with Defendant Ring being its Vice-President. 22. Defendant, CRO AVIATION, INC. ("CRO"), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O'Boyle is the President of CRO. 23. Defendant, ASSET ENHANCEMENT, INC. ("AE"), 1s a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O'Boyle is the President of AE with Defendant Ring being the Vice-President. 24. Defendant, COMMERCE REALTY GROUP, INC. ("CRG"), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O'Boyle is the President, Defendant Ring the Vice-President and Defendant DeMartini the Secretary of CRG. 25. In addition to the fact that they are all housed at the offiCes of Martin O'Boyle's company Commerce Group, Defendants O'Boyle, Ring, DeMartini, CG, CAFI, SDG, OPR, PAl, AH, Commerce GP, CGA, CRO, AE, CRG all share the internet domain commerce-group.com and utilize the email address records@commerce-group.com. 26. Defendant, THE O'BOYLE LAW FIRM, P.C., INC., ("O'Boyle Law Firm"), is a foreign corporation, a law firm, having its alleged principal address located at 1001 Broad Street, Johnstown, Pennsylvania and a Florida office at 1286 West Newport Center Drive, Deerfield RICHMAN GREER, P.A. Miami• West Palm Beach 7 RAS00000299 I I Case 9:15-cv-80182-KAM Jocument 1 Entered on FLSD DoeR ..... 02/12/2015 Page 8 of 49 Beach, Florida 33442. Defendant Jonathan O'Boyle is the sole officer and director of the O'Boyle Law Firm, but is not licensed to practice law in the State of Florida. While serving as an officer of Defendant CAFI, a client of the O'Boyle Law Firm, Defendant DeMartini simultaneously managed the O'Boyle Law Fim1's operations. After resigning as an officer of CAFI, but retaining his position as an officer of several other firm clients, including Defendants CG, CGA, CRG and AE, Defendant Ring is now a partner with the O'Boyle Law Firm. 27. Defendant, RYAN WITMER, is an attomey licensed to practice law in the state of Florida and a resident of New York. A law school classmate of Jonathan O'Boyle, Witmer helped to establish the O'Boyle Law Firm and thereafter filed and prosecuted scores of public records lawsuits throughout the State of Florida against the putative class members on behalf of clients of the O'Boyle Law Firm, including, but not limited to, Defendants Martin O'Boyle, O'Hare and CAFI. 28. Defendant, GIOVANI MESA, is an attomey licensed to practice law in the state of Florida, practicing with the O'Boyle Law Firm. Mesa has filed and prosecuted scores of public records lawsuits throughout the State of Florida against the putative class members on behalf of clients of the O'Boyle Law Firm including, but not limited to, Defendants Martin O'Boyle, O'Hare and CAFI. 29. Defendant, NICKALAUS TAYLOR, is an attorney licensed to practice law in the state of Florida since 2008, who practices with the O'Boyle Law Firm. Taylor has filed and prosecuted scores of public records lawsuits throughout the State of Florida against the putative class members on behalf of clients of the O'Boyle Law Firm including, but not limited to, RICHMAN GREER, P.A. Miami• West Palm Beach 8 RAS00000300 Case 9:15-cv-80182-KAM 1 ..-ocument 1 Entered on FLSD Dockl. J2/12/2015 Page 9 of 49 Defendants Martin O'Boyle, O'Hare, Commerce Group, CAFI, OPR, AH, CGA, CRO, AE and CRG. IV. Appropriateness of Class Action Treatment. 30. Plaintiffs bring this action on behalf of themselves and all others similarly situated pursuant to Fed. R. Civ. P. 23(b)(3). This action satisfies the munerosity, commonality, typicality, adequacy, predominance and superiority requirements of Rule 23. 31. The proposed Class is defined as: All state or local municipalities, municipal agencies, or private contractors in the State of Florida, who have been served with a public records request by any of the Defendants and who either (a) paid a settlement amount in conjunction witl1, or to resolve the public records request; or (b) incurred attorneys' fees and costs to respond to or litigate against public records requests from any of the Defendants. 32. Plaintiffs reserve the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 3 3. Plaintiffs do not currently know the exact number of Class Members or their identities. However, Plaintiffs believe that Class Members number in the hundreds, and are thus sufficiently numerous and geographically dispersed so that joinder of all Class Members is impracticable. 34. Attached hereto as Composite Exhibit "C" are a series of charts listing the current known potential Class Members, along with the style, case number, and county where the lawsuits were brought against them as part of the scheme to defraud and extort. As composite Exhibit "C" illustrates, there are at least 121 different Class Members (including Plaintiffs) RICHMAN GREER, P.A. Miami• West Palm Bllach 9 RAS00000301 Case 9:15-cv-80182-KAM 1 _,ocument 1 Entered on FLSD Dockc._ J2/12/2015 Page 10 of 49 composed of approximately 31 municipalities or agencies, and 90 private contractors in suits brought in nearly 2 dozen counties around the State.2 35. Plaintiffs further believe that each Class Member, including themselves, have claims with a common origin and share a common basis. The claims of all Class Members, as well as the Plaintiffs, originate from the Defendants' pattern of racketeering activity and use of the RICO Enterprise to carry out such activities. 36. The claims of the Plaintiffs are typical of the Class, in that Plaintiffs, like all Class Members, were injured in their business or property by reason of the Defendants' pattern of racketeering activity carried out by the RICO Enterprise, including the predicate acts of mail fraud, wire fraud, and extortion. 37. The RICO Enterprise, created by the Defendants, used the mail and the wires to send out what is usually an inconspicuous and frivolous public records request to the Class Members, often times under the guise of a false non-profit organization, and with a stated or implied purpose of advancing the public's interest in government transparency.3 In reality, this bogus public records request was an essential first-step of the RICO Enterprises' scheme to defraud and extort money from the class members-it was nothing more than bait, a records request for documents that the RICO Enterprise had no intention of reviewing, and instead, intended to be overlooked or missed by the receiving class member so as to trigger the next step in the RICO Enterprises' scheme. 2 Exhibit "C" reflects suits brought by only Defendant CAFI, albeit, in advancing the goal of the RICO Enterprise. Upon information and belief, the number of class members will increase substantially. 3 The purpose for disguising the identity of the requesting party was twofold: (1) to fool the recipient into thinking a not-for-profit had a genuine desire to see the documents requested; and (2) to try and circumvent the conditional payment provided for in the Public Records law allowing a municipality to condition production of the requested documents on payment of costs and expenses. (See, Fla. Stat. § 119 .07( 4)( d)). RICHMAN GREER, P.A. Miami• West Palm Beach 10 RAS00000302 Case 9:15-cv-80182-KAM ._.~ocument 1 Entered on FLSD Dockt.. 02/12/2015 Page 11 of 49 38. After the bogus records request was sent and hopefully overlooked, the RICO Enterprise would then use the mail and the wires to: (i) demand a settlement of the records request in excess of the actual attorneys' fees and costs incmTed by the Defendants; or (ii) file a frivolous lawsuit against the recipient of the bogus records request followed by the demand for settlement. The settlement demand was directly or indirectly accompanied by a threat of ham1 to property in the form of more bogus records requests, to be followed up with even more frivolous litigation. 39. This racketeering conduct damaged and injured the class members in three ways: (i) by requiring additional expenditures by the class members (i.e. hiring additional staff, paying overtime, etc.) to review and respond to the massive volume of bogus records requests;4 (ii) by coercing and sometimes extracting an inflated settlement amount from the Class Member to "make this go away,"; and (iii) by requiring the Class Member to defend against several spurious lawsuits brought only to increase the pressure and ultimately force the Class Member to accept the extorted settlement amount. 40. Pursuant to Rule 23(b)(3), there are nmnerous questions of law and fact common to the Class and those common questions predominate over any questions affecting only individual Class Members, including whether Defendants: a. are associated, organized and acting as an enterprise with the purpose of carrying out a scheme to defraud and extort; b. devised, followed, and actively pursued a scheme to defraud and extort, and what the scheme to defraud and extort consisted of, including; 4 See note 3, supra RICHMAN GREER, P.A. Miami• West Palm Beach II RAS00000303 Case 9:15-cv-80182-KAM '._.;cument 1 Entered on FLSD Docke, J2/12/2015 Page 12 of 49 i. manipulation of the public records. laws of Florida for financial gain, including the filing of frivolous, meaningless, and often mconsp1cuous public records request with no real need or intention to ever review or obtain the public records, but rather, simply set the stage for the next step in the scheme to defraud and extort; ii. advance fraudulent and inflated settlement demands as a matter of practice, policy, and pattern by fraudulently misrepresenting attorneys' fees incurred by the O'Boyle Law Firm and its co-Defendant clients, including a substantial profit margin to be shared between the O'Boyle Law Firm and its so-called "non-profit" clients; 111. as a matter of practice, policy, and pattern, extorted compliance with the fraudulent and inflated settlement demands by threatening scores of additional frivolous public records requests to be followed by scores of additional fraudulent ana -inflatea sett!etneiitaemands -with the sole intended consequence of the class members having to spend resources on responding to the bogus public records request and defending the frivolous litigation; IV. set up false and fraudulent companies, both non-profit and profit, in furtherance of the scheme to defraud, and using the mails and wires to incorporate, indoctrinate, or otherwise create these bogus companies in the State of Florida; RICHMAN GREER, P.A. Miami• West Palm Beach 12 RAS00000304 Case 9:15-cv-80182-KAM 1 ~Jcument 1 Entered on FLSD Docke, _,2/12/2015 Page 13 of 49 v. established a captive Florida law finn run by a non-Florida attorney for the sole purpose of generating attorneys' fees from settlements demanded through the use of the mails and wires; c. have engaged in conduct that constitutes a pattern of racketeering activity in furtherance of their scheme to defraud and extort; d. committed the predicate criminal acts of mail fraud, wire fraud, or extortion in furtherance of their scheme to defraud and extort; e. made false statements or misrepresentations of material fact regarding their identity so as to induce Defendants to act in reliance by foregoing the assessment of a special service charge to which Defendants would otherwise have been entitled under Fla. Stat.§ 119.07(4)(d); 41. Additionally, another common question of law and fact is the appropriate measure of damages sustained by Plaintiffs and other Class Members. 42. A class action is superior to other methods for the fair and efficient adjudication of this controversy. Treatment as a class action will permit a large number of similarly situated persons to adjudicate their common claims in a single forum simultaneously, effectively, and without the duplication of eff01t and expense, and risk of inconsistent rulings that numerous individual actions would cause. Class treatment will also permit the adjudication of relatively small claims by Class Members who otherwise might not be able to afford to litigate their claims individually. This class action presents no difficulties in management that would preclude maintenance as a class action. RICHMAN GREER1 P.A. Mi~ml• West Palm Beach 13 RAS00000305 I I Case 9:15-cv-80182-KAM Jocument 1 Entered on FLSD Dockt:.. 02/12/2015 Page 14 of 49 43. This forum is particularly desirable for the prosecution of this class action because Defendants all are residents in, or maintain a principal place of business in, this district, and presumably maintain many of those corporate records which are particularly germane to this action here. As a result of the foregoing, litigating on a class action basis in this forum will likely decrease the cost of discovery and prosecution, generally. 44. Plaintiffs have suffered the harm alleged on behalf of the Class, and have no interests antagonistic to the interests of any other Class Members. They are committed to the prosecution of this action and have retained counsel experienced in the prosecution of class actions, and in complex commercial actions in particular. Accordingly, Plaintiffs are adequate representatives and will fairly and adequately protect the interests of the Class. Plaintiffs are not aware of any other pending litigation concerning this controversy that involves Class Members, other than the individual cases brought by Defendants to enforce the frivolous and fraudulent public records requests. 45. Finally, the Class is readily definable. V. General Allegations. a. Florida Public Records Law 46. Pursuant to Chapter 119, Florida Statutes, commonly referred to as the Sunshine law, the legislature has determined that: "It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency." RICHMAN GREER, P.A. Miami• West Palm Bea~h 14 RAS00000306 Case 9:15-cv-80182-KAM '~Jcument 1 Entered on FLSD Docke, .;2/12/2015 Page 15 of 49 47. Florida prides itself on the transparency required of its elected officials, and its elected officials often pride themselves on providing such transparency to those that have elected them to serve. 48. Accordingly, pursuant to section 119.07, all qualifying entities: "shall permit the record(s) to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions .... " In furtherance of this transparency, "a custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees whether such a record exists and, if so, the location at which the record can be accessed." 49. The Public Records Act authorizes a custodian to collect a fee, prior to disclosing the records, for the cost of copying the records. Fla. Stat. § 119.07(4) (providing the custodian "shall furnish a copy ... of the record upon payment of the fee prescribed by law"). The custodian may also collect a special service charge for requests that "require extensive use of infonnation technology resources or extensive clerical or supervisory assistance .... " (Fla. Stat. § 119.07(4)(d)). 50. Chapter 119 also extends the transparency requirement, as well as an obligation to respond to public records request, to a "contractor," defined as "an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency .... " See section 119.0701. 51. In addition to criminal penalties, public officers (or "contractors") are subject to prevailing party attorneys' fees in civil court upon a showing of "unlawful refus[al] to permit a RICHMAN GREER 1 P.A. Miami• We5t Palm Sc~cll 15 RAS00000307 Case 9:15-cv-80182-KAM' .;ocument 1 Entered on FLSD Dockt.. 02/12/2015 Page 16 of 49 public record to be inspected or copied ... " Notably, this prevailing party fee provision is one- sided and can only be invoked by the party making the public records request, and not the agency or contractor responding to the request. 52. It is this threat of prevailing party attorneys' fees that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme. a. The Origins of the Scheme to Defraud and Extort. i. Martin 0 'Boyle gets a taste of the potential ill-gotten gains associated with exploiting the Public Records Act. 53. Martin O'Boyle already had an extensive history filing public records requests in New Jersey, Florida and elsewhere. Martin O'Boyle previously used the public records process in an abusive fashion to file thousands of requests and vexatious and frivolous lawsuits, to cripple local governments into granting his development plans and other demands. 54. By way of example, in the case of Martin E. O'Boyle v. Peter !sen, 2014 WL 340104 (N.J.Super.A.Dl, the Superior Court of New Jersey, Appellate Division, noted: From September 2007 through early July 2008, plaintiff [Martin O'Boyle] and members of his family filed multiple requests pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-l to -13. Longport's only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, the clerk went to the emergency room because of the stress she attributed to the flood of OPRA requests. And, in February 2008, the Borough's solicitor notified plaintiff that it would not accept any additional OPRA requests he filed, explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Longport had received 190 requests on October 16 and 17 and thirty filed October 31, 2007. 5 In the !sen case, Martin O'Boyle sued a resident of Longport for claiming Martin O'Boyle was "the enemy of Longport". The suit for defamation was dismissed by summary judgment and affirmed by the appellate court. RICHMAN GREER, P.A. Miami • West Palm Beach 16 RAS00000308 Case 9:15-cv-80182-KAM' ._,ocument 1 Entered on FLSD DockL J2/12/2015 Page 17 of 49 55. Similarly, when his daughter was being prosecuted for driving under the influence m Palm Beach County, Florida, Martin O'Boyle inundated the Palm Beach County State Attorney's Office both individually and through some of the other Defendants with over 1,300 requests for public records. 56. At one point, Martin O'Boyle had an application with four variance requests pending before the Town when his vexatious campaign of public records requests began in 2013. One of the variances in the request was granted, but 0 'Boyle was sent a letter of denial pertaining to the other three requests on March 24, 2013. 57. From February 2013 to July 2013, Martin O'Boyle filed hundreds of public records requests with the Town, overwhelming the records custodian with a nearly constant barrage of requests. When the Town's limited staff could not keep up with the records requests in what Martin O'Boyle believed to be a reasonable period of time, he began filing public records lawsuits. 58. From April to July 2013, Martin O'Boyle filed approximately 16 public records lawsuits in his name and that of his affiliated entities, including Defendants Commerce Group and AH. Many were filed as separate actions on the same day to further burden the Town in responding to the complaints and to increase the costs of the litigation. 59. In July 2013, the Town settled with Martin O'Boyle and paid him $180,000.00, an amount Martin O'Boyle claimed to have accrued in attorney's fees although his suits had been prosecuted prose. 60. As a result of the foregoing experiences, and with Jonathm1 O'Boyle having graduated from law school in 2012, Martin O'Boyle and Jonathan O'Boyle realized that they RICHMAN GREER, P.A. Mlaml• We5t Palm Beach 17 RAS00000309 I I Case 9:15-cv-80182-KAM ..... ocument 1 Entered on FLSD Dockc. J2/12/2015 Page 18 of 49 could use the Public Records Act not just to frustrate the workings of city governments, but also to generate an ill-gained profit for themselves. Thus, no longer was Martin O'Boyle's goal simply to torment local governments, bullying them into caving to his demands. The purpose was now to extort money. 61. In or around January 2014, Martin O'Boyle and his son, Jonathan O'Boyle, met for the purposes of developing a scheme to defraud and extort whereby they would form one or more contrived not-for-profit corporations. The purpose of the not-for-profit corporations would be to file thousands of public records requests with municipalities, government entities and state contractors throughout the State of Florida. Receipt and review of the requested records was not the O'Boyle's priority. What Martin O'Boyle and Jonathan O'Boyle were really interested in was trying to cause the recipient of the public records request to overlook the request and then slap the recipient with a lawsuit or pre-suit settlement demand for an amow1t far in excess of their costs and fees and from which they would pocket a generous profit. ii. Creation of the 0 'Boyle Law Firm and Its Feeder Individuals and Entities. 62. Accordingly, and despite the fact that Jonathan O'Boyle was not a Florida lawyer, he opened and ran the 0 'Boyle Law Firm as a foreign profit corporation on Febmary I 0, 2014. This law finn was opened and operated from his father's corporate offices of the Commerce Group, located in Deerfield Beach Florida. Both Martin O'Boyle and Commerce Group financed all activities of the O'Boyle Law Firm. 63, Once they had the law finn in place, Martin O'Boyle, Jonathan O'Boyle, and the O'Boyle Law Firm required "clients" -pre-textual plaintiffs that they could use in sending out frivolous and fraudulent public records requests and accompanying lawsuits. Accordingly, RICHMAN GREER, P.A. Mlaml• West Palm Beach 18 RAS00000310 I I Case 9:15-cv-80182-KAM Jocument 1 Entered on FLSD Dockt .. 02/12/2015 Page 19 of 49 Martin O'Boyle and Jonathan O'Boyle, along with Ring and DeMartini, decided to activate several of Martin O'Boyle's dormant corporations and not-for-profits, and to form several new not-for-profit entities, including Defendants CAFI, OPR, and PAl, as a front to make public records requests and create litigation for the O'Boyle Law Firm which then could be used to defraud and extort Class Members into paying inflated settlement amounts and line their pockets with the proceeds derived therefrom. 64. Martin O'Boyle, Jonathan O'Boyle, Ring and DeMartini knew that they could not, on the surface, own and control the non-profits they now intended to create as well as the law firm to which all of the so-called "clients" would be referred. So, to further wrap their scheme to defraud and extort in a shroud of legitimacy, they needed someone who is familiar with govemment transparency-someone that had vast experience in making public records request and someone with a reputation for doing so. They found that someone in Joel Chandler. b. Joel Chandler is Used to Lend Legitimacy To the Scheme To Defraud and Extort. 65. In January 2014, Martin O'Boyle and Jonathan O'Boyle contacted Joel Chandler (hereinafter refened to as "Chandler"). At the time Chandler had been working as a self- employed civil rights and public information activist. Chandler had considerable experience in making public records requests and in public records request litigation throughout the State of Florida, and had garnered a reputation as being a government transparency advocate. 66. Clwndler was invited to the O'Boyle home in Gulf Stream, Florida, where both Martin and Jonathan O'Boyle resided. At the initial meetings, Chandler, the O'Boyles, and Witmer discussed the O'Boyle Law Firm's capacity for handling public records litigation throughout the state. RICHMAN GREER, P.A .. Miami • West Palm Beach 19 RAS00000311 Case 9:15-cv-80182-KAM' ..~ocument 1 Entered on FLSD Dockt... 02/12/2015 Page 20 of 49 67. As a result of the meetings, Martin O'Boyle incorporated an alleged not-for-profit entity. Now, Martin O'Boyle and his various entities were funding not only the O'Boyle Law Firm, but also a feeder organization-CAFI. 6 68. Martin O'Boyle, on his own and through his other entities, provided actual cash to CAFI and the O'Boyle Law Finn as well as other consideration such as free rent, use of employees, and vehicles. To do this, Martin O'Boyle used both his own personal assets, and the assets of his business, Commerce Group. 69. Martin O'Boyle caused the entity, CAFI, to be incorporated in Florida and directed that his three close business associates, William Ring, Denise DeMartini, and Brenda Russell be named as the board of directors. 70. Martin O'Boyle also agreed with Chandler that he would hire Chandler to serve as the Executive Director ofCAFI at a six-figure salary as well as substantial benefits .. 71. Chandler's actual duty was to travel the state making hundreds of public records requests to public entities and state contractors. Thereafter, any evidence that would serve as a pretext for a lawsuit was to be forwarded immediately to Jonathan O'Boyle for the flling of litigation. Both CAFI and the O'Boyle Law Firm were operating from a room located in Commerce Group's offices. 72. Prior to meeting the O'Boyles, Chandler had earned approximately $5,000.00 during the year 2013. Upon opening the alleged foundation, Martin O'Boyle agreed to pay Chandler $120,000.00 per year and to provide him with a car to drive around the state to make public records requests. Martin O'Boyle advised Chm1dler that he would entirely ftmd the 6 So-called "Feeder" relationships have previously drawn the scrutiny of the Florida Bar, which has found them to be unethical (See FL Eth. Op. 02-8). RICHMAN GREER, P.A. Miami• West Palm Beach 20 RAS00000312 I i Case 9:15-cv-80182-KAM ...10cument 1 Entered on FLSD Dockt .. 02/12/2015 Page 21 of 49 foundation and law finn on an unlimited basis, including the payment of all court filing fees. Martin O'Boyle, Jonathan O'Boyle, Ring and DeMartini did not tell Chandler at the time, but had planned that they were going to require that all of CAFI's clients be represented by the O'Boyle Law Firm, that Chandler would not have exclusive control over whether a claim is settled and for how much, and that the 0 'Boyle Law Finn, CAFI, Martin 0 'Boyle, and Jonathan O'Boyle intended to obtain fraudulent settlements from unwitting defendants by claiming their fees and costs are an amount far in excess of what they actually were. 73. On January 27, 2014, Chandler was hired to act as Executive Director and CAFI was incorporated. 74. As instructed, and in furtherance of the scheme to defraud and extort, albeit unwittingly, Chandler began creating public records requests and legal claims and referred these to the newly created O'Boyle Law Firm. c. O'Hare's Involvement. 75. In or about 2013, Chandler had previously met with Defendant Christopher O'Hare to discuss public records litigation. O'Hare was upset with the Town over the denial of his zoning application regarding construction of a metal roof. 76. In an attempt to force the Town to approve his roof, O'Hare recruited Chandler and along with the co-Defendants began to inundate the Town with public records requests. 77. O'Hare met regularly with Martin O'Boyle and Jonathan O'Boyle and agreed to work in concert with them and to file hundreds of public records requests in his own name as well as under fictitious names with the clerk for the Town of Gulf Stream. RICHMAN GREER, P.A. Miami• West Palm Beach 21 RAS00000313 Case 9:15-cv-80182-KAM 1 ~ocument 1 Entered on FLSD DockL J2/12/2015 Page 22 of 49 78. O'Hare further agreed that after the Town was incapacitated and unable to timely and fully respond to the public records requests, the O'Boyle Law Firm would represent him in litigation against the Town, to generate money for the firm and the members of the Enterprise. 79. O'Hare began making public records requests to the Town in July 2013. 80. Initially, those public records requests were made by O'Hare in his own name or using anonymous email addresses ultimately determined to be associated with O'Hare.7 81. Although O'Hare would make numerous requests in a single day, the Town initially did not assess any special service charges to him for extensive use of infonnation technology resources or extensive clerical or supervisory assistance before making responsive records available. 82. In response to sixty (60) individual public records requests O'Hare submitted to the Town in a single day-on January 16, 2014, the Town wrote to O'Hare to advise that since August 2013, O'Hare had made more than 500 public records requests, that the Town had already spent more than 200 hours responding to Mr. O'Hare's prior requests, that O'Hare had failed to retrieve the vast majority of documents gathered by the Town in response to his requests, and that O'Hare had failed to pay the copy charges associated with those documents that had been made available or to pay estimates associated with other requests. 83. Thereafter, the Town began to assess special service charges against O'Hare for his extensive use of information technology resources and/or extensive clerical or supervisory assistance associated with responding to his requests. 7 See note 3, supra RICHMAN GREER, P.A. Miami• We5t Palm Beach 22 RAS00000314 Case 9:15-cv-80182-KAM' -'ocument 1 Entered on FLSD Dockc._ J2/12/2015 Page 23 of 49 84. To avoid those special service charges associated with the time spent responding to requests from a single individual and make the Town believe that numerous individuals were requesting records, O'Hare began making public records requests in a single day or within a few days to the Town using fictitious or fraudulent personal identification. The fraudulent aliases used by O'Hare, many of which mock the names of Town officials including Town Manager Bill Thrasher, Mayor Scott Morgan and Commissioners Donna White, Joan Orthwein and Robert Ganger, include: Irnawaty Tirtarahardja irnawatyt@gmail.com8 Janto Djajaputra jantodjajaputra@gmail.com9 Rodrigo Tejera tej eratej eratej era@ gmail. com 10 Nevada Smith nevadasmithcowboy@gmail.com 11 Frank Smith frank.smith.iconoclast@gmail.com 12 Hokuikekai Keihanaikukauakahihuliheekahaunaele 11 Oi Oi 00 lll Oii Ollll OOi Oii Ollll@gmai I .com Buffy Howell Bobby Gangrene Billy Trasher buffyhowell@gmail.com bobbygangrene@gmail.com billvtrasher@gmail.com 8 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com. O'Hare has filed at least one public records lawsuit seeking recovery under the Public Records Act for a public records request filed in the name of Irnawaty Tirtarahardja. See O'Hare v. Gu{f'Stream, Case No. 2014CA008327XXXXMB AF (l5 1h Judicial Circuit in and for Palm Beach Cmmty). 9 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com. Moreover, O'Hare has filed public records lawsuits seeking recovery under the Public Records Act for a public records request filed in the name of Janto Djajaputra. See O'Hare v. Gulf Stream, Case No. 2014CA006848XXXXMB AB (15"' Judicial Circuit in and for Palm Beach County); O'Hare v. Gulf Stream, Case No. 2014CA007516XXXXMB AD (15"' Judicial Circuit in and for Palm Beach County). 10 When a cursor hovers over this email address, a link appears to c@gmail.com. O'Hare has filed at least one public records lawsuit seeking recovery under the Public Records Act for a public records request filed in the name of Rodrigo Tejera. See O'Hare v. Gulf Stream, Case No. 2014CA006848XXXXMB AB (15'h Judicial Circuit iu and for Palm Beach County). 11 When a cm·sor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com. 12 When a cursor hovers over this email address, a link appears to c@gmail.com. RICHMAN GREER, P.A. Miami• West Palm Beach 23 RAS00000315 I I Case 9:15-cv-80182-KAM .... ocument 1 Entered on FLSD Dockc, J2/12/2015 Page 24 of 49 Scotty Margin Gonna White Freddy Farnsworth Groan 01thwein America V espuchi Patrick Henry Wyatt Burp Prigs Hypocrites Harry LaFarge scottymorgin@gmail.com gonnawhite@gmail.com Frederick.freddy.farnsworth@gmail.com groanorthwein@gmail.com discover.the.record@gmail.com no.gov.secrets@gmail.com ok.coral.record@gmail.com prigs.and.hvoocrites@gmail.com lafargetech@gmail. com 1 3 85. O'Hare has made hundreds of additional public records requests to the Town using fictitious or fraudulent personal identification and continues to do so in order to fraudulently induce the Town not to assess special service charges against him associated with the extensive use of resources and clerical or supervisory assistance. 86. O'Hare has turned the nearly one thousand public records requests he has made against the Town into more than two dozen lawsuits. 87. O'Hare has been a client of the O'Boyle Law Firm generally, and Jonathan O'Boyle in particular, since the finn's inception in January 2014. The O'Boyle Law Firm represents him in approximately 10 of the public records suits he has brought against the Town, with the first such suit filed by the O'Boyle Law Finn on his behalf on January 22,2014. 88. On May 8, 2014, O'Boyle and O'Hare fonnally joined forces as Plaintiffs against the Town with the filing of a Complaint to Enforce Florida's Public Records and Open Public Meetings Act. See 0 'Boyle and 0 'Hare v. Town of Gu(f Stream, Case No. 13 OjHarc has filed at least one public records lawsuit seeking recovery under the Public Records Act fbr a public records request filed in the name of Harry LaFarge. See O'Hare v. Gulf Stream, Case No. 2014CC012274XXXMB AB (15 1h Judicial Circuit in and for Palm Beach County). RICHMAN GREER, P.A. Miami• West Palm Beach 24 RAS00000316 Case 9:15-cv-80182-KAM 'c-Jcument 1 Entered on FLSD Docke't _,2/12/2015 Page 25 of 49 2014CA005628XXXXMB AG (Circuit Civil Division, 15 111 Judicial Circuit in and for Palm Beach County). c. Chandler Realizes He is Being Used. 89. Towards the end of March and in early April 2014, Chandler learned that Ring and Martin O'Boyle were making public records requests directed to the Town of Gulf Stream, allegedly at the behest of CAFI, without his knowledge or consent. 90. In April 2014, when Chandler inquired as to why he was not infonned about all lawsuits filed by CAFI, the organization over which he was the executive director, DeMartini explained to Chandler that she was Martin O'Boyle's key employee and the director on the board of CAFI to whom Chandler was to report. DeMartini further explained that she would be directing the flow of litigation to the O'Boyle Law Finn and that she would be calling the shots. 91. DeMartini, a non-lawyer, attended law firm meetings with Chandler and participated in reviews of all client matters, not just CAFI cases. She made personnel decisions for the O'Boyle Law Firm and managed the alleged law finn's finances while claiming to be a board member of CAFL 92. During this same time, DeMartini demanded that Chandler produce a minimum quota of 25 new lawsuits a week for the 0 'Boyle Law Firm to file. 93. In May 2014 De\l!miini notified Chandler that she had full access to all of the O'Boyle Law Finn's internal records and client files. She shared all client reports with Chandler, not just reports concerning CAFL RICHMAN GREER, P.A. Miami• West Palm Beach 25 RAS00000317 Case 9:15-cv-80182-KAM' _,ocument 1 Entered on FLSD DockL J2/12/2015 Page 26 of 49 94. After discovering that public records requests were being filed in the name of the foundation without his knowledge, Chandler again directed that all public records requests on behalf of CAFI be made by himself, or at the very least, that he be advised they are being made. 95. On May 16, 2014, DeMartini asked Chandler for a recap of the number of cases referred by CAFI to the O'Boyle Law Finn from January through May. DeMartini expressed her frustration to Chandler that he has only generated 211 cases in the 12 weeks since CAFI was created. 96. During May 2014 Chandler learned that the O'Boyle Law Firm had no written fee agreements or engagement letters between the 0 'Boyle Law Finn and CAFI. 97. By the end of May, DeMartini and Jonathan O'Boyle continued to express their frustration to Chandler. Chandler insisted on reviewing and verifying all lawsuits to be filed by CAFI. DeMartini and O'Boyle expressed concern that Chandler's review was slowing down the flow of litigation generated by the firm. 98. By this point, it had become abundantly clear to Chandler that DeMartini, Ring and O'Boyle were only concerned with the volume of cases that could be generated, and of course the profits that could be had in such cases by way of fraudulent settlement demands, rather than any public service. This suspicion was confirmed when Chandler's repeated attempts to inform Ring and DeMartini of opportunities to work with civil rights groups, public agencies, student groups and journalists on open government issues were completely ignored. 99. In Jtme 2014, it came full circle. Chandler learned that Martin O'Boyle, Jonathan O'Boyle, the O'Boyle Finn, Commerce Group, CAFI, Ring, and DeMartini were operating a RICHMAN GREER, P.A. Miami• West Palm Beach 26 RAS00000318 I d < Case 9:15-cv-80182-KAM ...Jocument 1 Entere on FLSD Dock<... 02/12/2015 Page 27 of 49 RICO Enterprise that was engaged in a scheme to defraud and extort the defendants with the hundreds if not thousands of public records requests that were made. I 00. The scheme involved the firm demanding monetary settlements on behalf of CAFI (or others) far beyond the aetna! attorneys' fees and expenses incurred and contemplated in F.S. §119.12, and to keep all of the proceeds, including the "windfall". If the demands were not met, then the scheme called for intimidation via threat of additional bogus public records requests and frivolous litigation until the demands were met. 101. On June 30, 2014 Chandler arrived at the Commerce Group/CAFI!O'Boyle Law Firm office and presented his letter of resignation to Ring. Immediately thereafter, Martin O'Boyle demanded that Chandler retract his statement (in an email) confinning Jonathan O'Boyle's complicity in the scheme to defraud and extort. Martin O'Boyle threatened Chandler that if he did not retract his statements concerning Jonathan O'Boyle's involvement in the "windfall" scheme, Chandler would "force us to respond by making your life very unpleasant". Thereafter Chandler refused to retract the emails and Martin 0 'Boyle repeated his threats several times. I 02. As part of the scheme, the O'Boyle Law Firm has now filed hundreds of spurious lawsuits on behalf of O'Boyle, O'Hare, CAFI, and other pretextual entities and individuals including Defendants CG, SDG, OPR, PAl, AH, Commerce GP, CGA, CRO, AE, CRG. These defendants have become engaged in a massive scheme to generate and collect attorneys' fees from Florida agencies and state contractors beyond any fees actnally earned. RICHMAN GREER, P.A. Miami• West Palm Beach 27 RAS00000319 Case 9:15-cv-80182-KAM 1 _,acumen! 1 Entered on FLSD DockL. J2/12/2015 Page 28 of 49 d. How the scheme operates: the Example of Gulf Stream. 103. The Town Of Gulf Stream has become the epicenter of the RICO Enterprises' scheme-a sort of example, of what the Enterprise will do to all Class Members if allowed to continue with its pattern of racketeering activity. 104. Through the RICO Enterprise, Defendants have joined forces to barrage the Town with nearly 2,000 public records requests from fictitious e-mail addresses and purported not-for- profits. (See Composite Exhibit "B.") Shortly thereafter, Defendants file suit against the Town, asserting unreasonable delay and seeking fees under the Public Records Act. At the same time, they threaten the Town that if it will not settle, it will be faced with hundreds of additional public records requests and dozens of lawsuits, along with the crippling associated costs of both. 105. For instance, in the first 28 days of September, 2013, the Town received 121 public records requests or approximately 6 requests per business day. All of those requests were made by Defendant Chris O'Hare (115) or Joel Chandler (6). With the exception of two requests made by O'Hare's attorney, Lou Roeder, Esq., all of O'Hare's requests were made to the Town by inconspicuous e-mail addresses that failed to indicate the requests were made on behalf of O'Hare: emailfinder.mail.mail@gmail.com, publicdocsearch@gmail.com, permit.record.search@gmail.com, information@pacificwest.com. record.public@yahoo.com, and account- 106. O'Hare's requests were not spread over time; instead, he barraged the Town with multiple requests in a single day, e.g., 18 requests on September 4, 2013, 24 requests on September 20, 2013 and 58 requests on September 23, 2013. (See Composite Exhibit "B."). On September 29, 2013, a Sunday, O'Hare sent the Town approximately 40 public records requests RICHMAN GREER, P.A. Miami • West Palm Beach 28 RAS00000320 Case 9:15-cv-80182-KAM ' ~ocument 1 Entered on FLSD DockL J2/12/2015 Page 29 of 49 in a four ( 4)-hour period. The Town responded to the requests, producing documents, providing estimates of fees authorized by the Public Records Act or advising O'Hare that no responsive documents existed. O'Hare ultimately filed 7 lawsuits over those September 29, 2013, requests, alleging that the Town unreasonably delayed in responding to his requests, and has continued to litigate those suits solely to extract settlement payouts from the Town --even though documents have been produced, he has failed to pay the required estimates or he has been unable to identify responsive records that exist but were not produced. 107. In the first 20 days of January 2014, O'Hare made approximately 94 public records requests to the Town by e-mail. Then, on January 21, 2014, O'Hare and O'Boyle joined forces to hit the Town with 15 public records requests in a single day; O'Hare making his requests by e-mail and O'Boyle making his in person. One of these was a request by O'Boyle for a copy of the Town's sign-in-log. Although the Town produced the record to O'Boy1e in less than 2 business days, the newly fanned O'Boyle Law Finn seized on the opportunity to sue the Town on O'Boyle's behalf, asserting tmreasonable delay and seeking attorney's fees. 108. By June 2014, the Enterprise had made more than1,000 public records requests to the Town and filed more than two dozen public records suits against it, including more than one dozen suits seeking statutory attorneys' fees filed by The O'Boyle Law Firm. In the month of June 2014 alone, the Enterprise hit the Town with approximately 180 public records requests. These requests were made by e-mail from Defendants O'Hare (using fictitious names), O'Boyle, CAFI, SDG, CGA, AH and Commerce GP. As noted infra, O'Boyle and O'Hare then appeared at the July 11, 2014 Town Commission meeting overtly threatening to cause the Town to spend increased legal fees or settle with him at risk of continued public records requests and lawsuits. RICHMAN GREER, P.A. Miami• West Palm Beach 29 RAS00000321 I i Case 9:15-cv-80182-KAM ...~ocument 1 Entered on FLSD Dockt. J2/12/2015 Page 30 of 49 e. How the scheme operates: the example ofWantman Group. 109. On Saturday, April 19, 2014, Wantman Group received an email from "An Onomy" seeking the "Certificate of Insurance referenced on Page 6 of 16 of the South Florida Water Management District contract 4600002690." A true and coiTect copy of the email is attached as part of Composite Exhibit "D." II 0. Approximately 3 weeks later, on or around May 8, 2014, and without any further inquiry to the Wantman Group, including a simple confirmation that the public records request was in fact received, CAFI, through its attorneys, Defendants Taylor and the O'Boyle Law Finn, filed a two-count complaint seeking a copy of the requested record, an immediate hearing, a declaration that Wantman Group violated Section 119.11, and of course, an award of attorneys' fees and costs. A true and coiTect copy of the two-count complaint is attached hereto as part of Composite Exhibit "D." 111. In response to the two-count complaint, Wantman Group, through counsel, sent a letter advising Mr. Taylor and CAFI that "Wantman was not aware of the Chapter 119 request," as it was sent to an obscure individual and not the records custodian of Wantman. The letter also attached a copy of the requested document "in the spirit of cooperation," and demanded that the lawsuit be dismissed. A true and correct copy of the May 29, 2014 letter from counsel is attached hereto as part of Composite Exhibit "D." 112. Before Wantman Group even filed its Answer and Defenses to the complaint, Defendants Taylor, O'Boyle Law Firm, and CAFI sent an email to Wru1tman Group's counsel offering to settle the public records dispute for $3,923.00. A tme and correct copy of the email RICHMAN GREER 1 P.A. Miami• West Palm Beach 30 RAS00000322 i I Case 9:15-cv-80182-KAM ...~acumen! 1 Entered on FLSD Dockto. 02/12/2015 Page 31 of 49 and attached draft settlement agreement from Defendants Taylor, O'Boyle Law Firm and CAFI is attached hereto as part of Composite Exhibit "D." 113. Notwithstanding the document had now been produced voluntarily, Defendants Taylor, the O'Boyle Law Firm, and CAFI refused to dismiss the lawsuit, requiring Wantman Group to Answer the same. 114. Upon receipt of the Answer, Defendants Taylor, O'Boyle Law Firm, and CAFI immediately sent fonn discovery (not even tailored to the Wantman Group, but containing things completely inapplicable to Wantman) as an indirect threat that more litigation is to follow if the settlement demands are not assented to. 115. In all, Wantman Group has incurred substantial damages in having to respond to the bogus records request and then defend against the frivolous litigation. 116. This scheme to defraud and extort has directly injured the Class members as well as the Plaintiffs. To date, Gulf Stream has been injured in the amounts and categories set forth in Composite Exhibit "E" and Exhibit "F" hereto. 117. In light of the foregoing, Plaintiffs were damaged as a direct result of the RICO Enterprise based on Defendants' fraudulent claims, backed-up by Defendant's extortion and threats calculated to cause Class Members to spend money responding to bogus public records requests and defending frivolous lawsuits. VI. COUNT !-Violation of 18 U.S.C. § 1964(a) and (c). 118. Plaintiffs' adopt and incorporate by reference paragraphs 1 through 117 above as though fully set forth herein. RICHMAN GREER, P.A. Miami• West Palm Beach 31 RAS00000323 Case 9:15-cv-80182-KAM' ..~ocument 1 Entered on FLSD Dockh. J2/12/2015 Page 32 of 49 119. Plaintiffs' seek relief under 18 U.S.C. § 1964(a) of RICO to prevent and restrain Defendants from committing future violations of section 1962, including, but not limited to, ordering the Defendants to divest themselves of their interest in the Enterprise; impose reasonable restrictions on the future activities or investments of the Defendants to ensure no further engagement in a similar endeavor as described herein; and order dissolution of all corporate defendants. 120. Plaintiffs also seek relief under 18 U.S.C. § 1964(c) of RICO, and seek threefold the damages sustained by the Plaintiffs and the Class Members, along with costs of this suit, including a reasonable attorney fee. 121. The Plaintiffs, and each Class Member that Plaintiffs represent are persons within the meaning of 18 U.S.C. § 1964( c) and § 1961 (3). 122. 18 U.S.C. § 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." Through § 1964( c), "any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States District Court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee .... " Because the Plaintiffs, along with the Class Members, were injured in their business or property by Defendants' violation of 1962, they are entitled to threefold their damages, attorneys' fees and costs. a. The Enterprise. RICHMAN GREER, P.A, Miami• West Palm Beach 32 RAS00000324 Case 9:15-cv-80182-KAM '~ocument 1 Entered on FLSD Dock~. J2112/2015 Page 33 of 49 123. The Defendants, through themselves and through their employees and agents, formed a union and association-in-fact enterprise that engages in, and the activities of which affect, interstate commerce. This Enterprise has as its goal, a scheme to defraud and intimidate through acts of extortion, municipalities, municipal agencies, private contractors of municipalities and anyone else subject to, or even arguably subject to, the Sunshine Law, into paying unjustified, grossly inflated and fraudulent settlement amounts so as to create and increase profits to the Enterprise. 124. Every Defendant had a role or position in the Enterprise, all of which worked together towards the common goal of defrauding or extorting municipalities, municipal agencies, private contractors of municipalities and anyone else subject to or even arguably subject to the Sm1shine Law. The Defendants' respective roles and their importance to the Enterprise, as well as how it advanced the interest of the Enterprise are as follows: a. Martin O'Boyle: Martin O'Boyle is one of the engineers of the Enterprise's scheme to defraud and extort, as well as its principal financier through his various business entities. Martin O'Boyle directs the Enterprise, and is responsible for the following actions taken to advance the goal of the Enterprise: i. Financing the opening and continued existence of the O'Boyle Law Firm, along with his son, Jonathan O'Boyle; ii. Financing the opening and continued existence of CAFI, OPR and P AI; 111. Directing the operations of CAFI, OPR and P AI through his appointed directors and key employees of his other business entities such as Commerce Group. RICHMAN GREER, P.A. Miami• West Palm Beach 33 RAS00000325 { i, Case 9:15-cv-80182-KAM ~.;cument 1 Entered on FLSD Docke, J2!12!2015 Page 34 of 49 iv. Utilizing his other business entities including Commerce Group, SDG, AH, CGA, CRO, AE and CRE to make spurious, frivolous, and baseless public records requests and to file resulting lawsuits to either generate windfall fees for himself, Jonathan 0 'Boyle, Ring, DeMartini and the O'Boyle Law Finn; or to extort a settlement payment for the victims. v. Mandating, under threat of no funding, that: I. CAFI file no less than 25 cases per week; 2. All cases filed by CAFI and the other Defendants be referred to the O'Boyle Law Firm; and, 3. All cases be settled for an amount substantially in excess of the fees and costs incurred in the case. b. Jonathan O'Boyle. Jonathan O'Boyle is one of the engineers of the Enterprise's scheme to defraud and extort, along with his father Martin O'Boyle. To advance the interest of the Enterprise, Jonathan O'Boyle has taken the following actions: 1. Creating, and sustaining the O'Boyle Law Firm, a necessary element of the Enterprise; n. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate windfall fraudulent and extortive fees for Martin 0 'Boyle, Jonathan 0 'Boyle, Ring, DeMartini and the 0 'Boyle Law Firm; 111. Directing the prosecution of hundreds of public records suits filed by the O'Boyle Law Firm throughout the State of Florida on behalf of other RICHMAN GREER, P.A. M\aml• We5t Palm Beach 34 RAS00000326 Case 9:15-cv-80182-KAM ~ucument 1 Entered on FLSD Docke, J2i12/2015 Page 35 of 49 members of the Enterprise including, but not limited to, his father Martin O'Boyle, O'Hare, CAFI, Commerce Group, OPR, PAl, AH, CGA, CRO, AE, andCRG. tv. Ordering that public records suits be filed on behalf of Florida plaintiffs, such as Chandler, without knowledge or consent of the Plaintiffs; and, v. Ordering that, as a pattern and practice, all public records suits would be settled for an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise, and directing that settlement demands be made by the O'Boyle Law Finn to the Class Members in accordance with this pattern and practice using the mail or wtres. c. Christopher O'Hare. Christopher O'Hare has taken the following actions to advance the Enterprise's scheme to defraud: 1. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fees for himself, Martin O'Boyle, Jonathan O'Boyle and the O'Boyle Law Firm and, ii. Fraudulently misrepresenting his identity in order to induce violation of the Public Records Act and to avoid fees owed by him thereunder. d. William Ring. William Ring is one of the engineers of the Enterprise's scheme to defraud and extort, having served as Martin O'Boyle's "right-hand" for more than 25 years. To advance the interest of the Enterprise, Ring has taken the following actions: RICHMAN GREER, P.A. Miami• West Palm Baach 35 RAS00000327 I i Case 9:15-cv-80182-KAM ..-ocument 1 Entered on FLSD Dockc. J2/12/2015 Page 36 of 49 i. Assisting with the creation of not-for-profit Defendants CAFI, P AI and OPR for the sole purpose of generating fraudulent, extortive and windfall attorney's fees by the filing and prosecution of frivolous public records lawsuits; n. Directing the operations of CAFI through key employees of Martin O'Boyle's other business entities such as Commerce Group. iii. Mandating under threat of no funding, that: I. All cases filed by CAFI and the other Defendants be referred to the O'Boyle Law Finn; and, 2. All cases be settled for an amount substantially in excess of the fees and costs incurred in the case. iv. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm; v. Ordering, that as a pattern and practice, all public records suits would be settled for an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise; and, vi. Purporting to serve as the Florida supervising attorney of the O'Boyle Law Firm (notwithstanding his total lack of litigation experience) in order to hide the fact that non-Florida attomey Jonathan O'Boyle is truly directing the finn's activities, all in violation of the Rules Regulating the Florida Bar. RICHMAN GREER, P.A. Miami• West P~fm Beach 36 RAS00000328 Case 9:15-cv-80182-KAM ',_Jcument 1 Entered on FLSD Docke, ..,2/12/2015 Page 37 of 49 e. Denise DeMartini. Denise DeMartini is one of the engineers of the Enterprise's scheme to defraud and extort, having served as Martin O'Boyle's "left-hand" for more than 25 years. To advance the interest of the Enterprise, DeMartini has taken the following actions: 1. Assisting with the creation of not-for-profit Defendants CAFI, PAI and OPR for the sole purpose of generating fraudulent, extortive and windfall attorney's fees by the filing and prosecution of frivolous public records lawsuits; ii. Directing the operations of CAFI through key employees of Martin O'Boyle's other business entities such as Commerce Group. iii. Mandating under threat of no funding, that: 1. CAFI file no less than 25 cases per week; 2. All cases filed by CAFI and the other Defendants be referred to the O'Boyle Law Firm; and, 3. All cases be settled for an amount substantially in excess of the fees and costs incurred in the case. iv, Ordering, that as a pattern and practice, all public records suits would be settled for an amount substantially in excess of the actual fees and costs incurred to generate a profit for the enterprise; and, v. Managing the operations of the O'Boyle Law Firm while simultaneously serving as an officer of its clients, including CAFI, and sharing confidences of those clients. RICHMAN GREER, P.A. Miami• West Palm Bea~h 37 RAS00000329 Case 9:15-cv-80182-KAM '.._Jcument 1 Entered on FLSD Docke, .2/12/2015 Page 38 of 49 f. Commerce Group. To advance the interest of the Enterprise, Martin O'Boyle's real estate development company, the Commerce Group, has taken the following actions: i. Financing the opening and continued existence of the O'Boyle Law Firm and the not-for-profit Defendants CAFI, OPR and P AI; and, ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. g. Public Awareness Institute, Inc. To advance the interests of the Enterprise, the Florida not-for-profit PAl has taken the following actions: 1. Incorporating as a Florida not-for-profit corporation for the sole purpose of generating windfall attorney's fees by the filing and prosecution of frivolous public records lawsuits; and, ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. h. Citizens Awareness Foundation, Inc. To advance the interests of the Enterprise, the Florida not-for-profit CAFI has taken the following actions: 1. Incorporating as a Florida not-for-profit corporation for the sole purpose of generating windfall attorney's fees by the filing and prosecution of frivolous public records lawsuits; and, RICHMAN GREER1 P.A. Miami• West Palm Beach 38 RAS00000330 Case 9:15-cv-80182-KAM 1 ~ocument 1 Entered on FLSD Docke. J2/12/2015 Page 39 of 49 u. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive, and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Finn. 1. Our Public Records, LLC. To advance the interests of the Enterprise, the Florida not-for-profit OPR has talcen the following actions: i. Incorporating as a Florida not-for-profit corporation for the sole purpose of generating windfall attorney's fees by the filing and prosecution of frivolous public records lawsuits; and, ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. j. Stopdirtygovernment, LLC. To advance the interests of the Enterprise, SDG has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive m1d windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini aod the O'Boyle Law Firm. k. Airline Highway, LLC. To advance the interests of the Enterprise, AH has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. RICHMAN GREER, P.A. Miami • West Palm Beach 39 RAS00000331 Case 9:15-cv-80182-KAM ' _ocument 1 Entered on FLSD DockL J2/12/2015 Page 40 of 49 I. Commerce GP, Inc .. To advance the interests of the Enterprise, Commerce GP has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Finn. m. CG Acquisition Co., Inc. To advance the interests of the Enterprise, CGA has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. n. CRO Aviation, Inc .. To advance the interests of the Enterprise, CRO Aviation, Inc. has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. o. Asset Enhancement, Inc. To advance the interests of the Enterprise, Asset Enhancement, Inc. has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm. p. Commerce Realty Group, Inc. To advance the interests of the Enterprise, CRG has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O'Boyle, Jonathan O'Boyle, Ring, DeMartini and the O'Boyle Law Firm RICHMAN GREER, P.A. Miami• We5t Palm Beach 40 RAS00000332 Case 9:15-cv-80182-KAM ' ~ocument 1 Entered on FLSD DockL J2/12/2015 Page 41 of 49 q. The O'Boyle Law Firm. At the center of the Enterprise's scheme to defraud, the O'Boyle Law Firm has taken the following actions to advance the Enterprise's interests: 1. Profiting from improper illegal, and unethical feeder and fee-sharing relationships and sharing space with its non-lawyer clients, including Defendants Commerce Group, CAFI, OPR and P AI; ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits on behalf of its feeder clients, all of which are entities affiliated with and funded by the Enterprise or its members; and, 111. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. r. Ryan Witmer. Ryan Witmer is one of the engineers of the Enterprise's scheme to defraud, along with his law school classmate and friend Jonathan O'Boyle. To advance the interest of the Enterprise, Witmer took the following actions: i. Creating the O'Boyle Law Firm and agreeing to serve as its purported Florida supervising attorney in order to hide the fact that non-Florida. attorney Jonathan O'Boyle is truly directing the firm's activities, all in violation of the Rules Regulating the Florida Bar; n. Causing the O'Boyle Law Firm to profit from Improper illegal and unethical feeder ~md fee-sharing relationships and to share space with its RICHMAN GREER, P.A. Mi~ml• West Palm Seach 41 RAS00000333 Case 9:15-cv-80182-KAM ' _ocument 1 Entered on FLSD Dockt J2/12/2015 Page 42 of 49 non-lawyer clients, including Defendants Commerce Group, CAFI, OPR and PAl; iii. Facilitating the unlicensed practice oflaw by Jonathan O'Boyle; IV. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits; and, v. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. s. Giovani Mesa. An attorney with the O'Boyle Law Firm, Mesa has taken the following actions to advance the Enterprise's scheme to defraud: 1. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits; and, ii. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. t. Nickalaus Taylor. An attorney with the O'Boyle Law Firm, Taylor has tal,en the following actions to advance the Enterprise's scheme to defraud: 1. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits; and, RICHMAN GREER, P.A. Miami• West Palm Beach 42 RAS00000334 ' I Case 9:15-cv-80182-KAM ._,acumen! 1 Entered on FLSD Dockc. J2/12/2015 Page 43 of 49 n. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. 125. The members of the Enterprise set forth above, function in a fashion so as to become a continuing unit which fumishes a vehicle for the commission of the racketeering activity set fmih below. The continuity of the Enterprises' actions will be repeated in the future if it is allowed to continue. a. Pattern of Racketeering. 126. Pursuant to 18 U.S.C. § 1961(1), "racketeering activity" includes the predicate crimes of mail fraud (18 U.S. C.§ 1341), wire fraud (18 U.S.C. § 1343), and extortion (18 U.S.C. 1951). Under to 18 U.S. C. § 1341, "whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do" and uses the mails or other commercial carrier to do so, commits mail fraud. Similarly, under 18 U.S. C. § 1343, "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire," commits wire fraud. Under 18 U.S.C. § 1951, extortion is "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear (including fear of economic loss) .... " RICHMAN GREER, P.A. Miami• West Palm Beach 43 RAS00000335 Case 9:15-cv-80182-KAM '._ .JCUment 1 Entered on FLSD Dockd, J2/12/2015 Page 44 of 49 12 7. All members of the Enterprise have committed at least one predicate act of mail fraud, wire fraud, or extortion, which, when combined, constitutes a pattern of racketeering undertaken by the Enterprise to accomplish the goals of the Enterprise. Examples of predicate acts by each member of the Enterprise is set forth on the charts attached hereto as Composite Exhibit "B"14 and Exhibit "F." (these chmis are exemplary, and by no means exhaustive). In addition to the mail and/or wire fraud predicate acts committed by the RICO Enterprises' members, O'Hare and Martin O'Boyle have blatantly threatened to cause the Town to spend increased legal fees or settle. 128. For example, at the July 11, 2014 Town Commission Meeting, O'Boyle said to the commissions; "why would you spend $1,700 when on your very best day, best day you win $450? ... You want to lower the legal fees, you want to get rid of the lawyer fees? What you spent you could have settled with this guy [O'Hare] ... You would have spent half the money and everyone would have been happy." 129. At this same meeting, Martin O'Boyle, when addressing the Town's budget, suggested that "you won't have to worry about millage rate" if the Town would "sit down and try to solve" the issues with O'Hare-described by O'Boy1e as "the guy that wants to do nothing but file law suits .... " 130. However, Mr. O'Hare's most obvious act of extmiion occurred at a September 12, 2014 Commission Tentative Budget Hearing, when, while referencing the outstanding public records requests, he stated: "There's a lot on the board and a lot more comin'. Be so much easier just to get this settled instead of spending more money each time the lawyers write a letter than it 14 Unless otherwise indicated, each of the Public Records request contained in Composite Exhibit "B" was made via email or facsimile and constitutes a use of the wires. RICHMAN GREER, P.A. Ml~ml• West Palm I! each 44 RAS00000336 Case 9:15-cv-80182-KAM ' _ ocument 1 Entered on FLSD Dockl J2/12/2015 Page 45 of 49 would take to settle some of these things." A month later, Mr. O'Hare reiterated these threats at the October 10, 2014 Town Commission meeting, stating that "So many of these cases could be resolved by just admitting guilt (and] paying the attorneys' fees .... I meant a typical public records case settled for ..... what was Joel Chandlers? Was it $1,500 to make him go away? And yet you spend $20,000 saying no, we're not guilty and we're not gonna cooperate. That's just not a good use of public money." 131. In addition to the verbal threats, Martin O'Boyle and O'Hare have also attempted mutiny-styled rallies of the citizens to try and pressure the Town into settling the scores of public records requests. In January of2015, Martin O'Boyle and O'Hare published the "Gulf Stream Patriot," a professionally prepaid bulletin in large part devoted to seeking support to force settlement of all of the public records lawsuits. In this bulletin, O'Boyle and O'Hare suggest to the residents of the Town that: "Because of the stout costs, [of the public records litigation] the residents are the ones being punished! Let's all hope a resolution is in sight; and the costs disappear." 132. On the back page, the "Gulf Stream Patriot" states that the "hottest topic" in the Town right now is the public records litigation. Accordingly, the bulletin then asks the readers to answer the following question in an online survey: "Are you in favor of the Town reaching a peaceful resolution with Mr. O'Boyle and Mr. O'Hare, which would end all the expenses and litigation in a prompt fashion?" 133. Each of these statements made by either O'Boyle or O'Hare is an overt threat that additional frivolous public records requests and accompanying litigation will follow if the Town RICHMAN GREER, P.A. Miami• We5t Palm Beach 45 RAS00000337 Case 9:15-cv-80182-KAM · ..>Ocument 1 Entered on FLSD DockL J2/12/2015 Page 46 of 49 does not agree to settle the current cases. Accordingly, each of these statements is an act of extortion, carried out to further the goal of the scheme to defraud and extort. 134. Each of these actions is a regular way of doing business for the enterprise's members and threatens repetition in the future. b. Reliance. 135. The frivolous and often inconspicuous public records requests, as well as the false and disguised identity of the requester, along with the fraudulent settlement demands that were sent by the mails and the wires were justifiably relied upon by Plaintiffs and Class Members when they paid the fraudulent and inflated settlement demands or when they retained additional staff and spent additional resources in responding to the same. c. Proximate Cause and Damages. 136. The wrongful conduct of the enterprise set forth above, including the acts of mail fraud, wire fraud, and extortion have directly harmed the Plaintiffs and the Class Members. The Plaintiffs and the Class members were and are being extorted to pay inflated and fraudulent settlement demands based on the frivolous and often inconspicuous public records requests made by the enterprise, amounts they would not otherwise have paid. 137. In addition, when the volume of the frivolous public records request began to increase exponentially as the scheme to defraud and extort progressed, the Plaintiffs and Class Members were forced to incur additional internal costs associated with having to try and respond to the same. See the spreadsheet attached hereto as Composite Exhibit "E," setting forth the amount of additional internal costs the Town was forced to absorb as a result of the Enterprises' pattern of racketeering. RICHMAN GREER, P.A. Mlami • West Palm Beach 46 RAS00000338 Case 9:15-cv-80182-KAM ·~ JCUment 1 Entered on FLSD DockEL ~2/12/2015 Page 47 of 49 13 8. Finally, the acts of extortion were directly intended to cause the Plaintiffs to spend money defending frivolous actions having no nexus or relation to the original settlement demands as to which they were being coerced to comply with and pay. The Plaintiffs had a pre- existing right to be free from the threats of the previously unrelated public records requests and frivolous litigation, and the resolution of the threatened public records requests and litigation would not impact the resolution of the case in which the threats were made but for the extortionate nature of the threats. The threatened public records requests and frivolous litigation were simply used as leverage to influence and gain compliance with fraudulent settlement demands made in tmrelated cases-a tool to extort additional money from the Plaintiffs. See the spreadsheet attached hereto as Exhibit "F" outlining the amotmt spent in defending against the frivolous public records requests and accompanying litigation brought to achieve a simple yet calculated goal of causing the Town to hemorrhage money and consider settling. 139. There is no person who has more directly sustained these injuries than the Plaintiffs and Class Members, and the injuries are a direct and intended result of the enterprise's scheme to defraud the Plaintiffs, as well as the mail and wire fraud acts undertaken as part of the scheme to defraud the Plaintiffs and Class Members. 140. Pursuant to 18 U.S.C. § 1964(c), Counter-Plaintiff requests an award of attorneys' fees and costs for having to bring the instant suit. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of all other similarly situated, pray for relief and judgment as follows: RICHMAN GREER, P.A. Miami • West Palm Beach 47 RAS00000339 Case 9:15-cv-80182-KAM ' __,ocument 1 Entered on FLSD DockL J2/12/2015 Page 48 of 49 a. Certifying the proposed Class and approving Plaintiffs Town of Gulf Stream and Wantman Group, Inc. as class representatives; b. Appointing Richman Greer, P .A as class counsel; c. Awarding Plaintiffs and the Class treble damages in an amount to be proven at trial, along with costs, interest, an attomeys' fees; and d. Entering whatever orders the Court deems necessary to divesting the Defendants from their interest in the enterprise and imposing reasonable restrictions on the future activities or investments of the Defendants to prohibit them from engaging in a similar type endeavor; e. A warding any further relief the Court deems just and proper. JURY DEMAND Plaintiffs demand a trial by jury on all issues so triable. Respectfully submitted this 12th day of February, 2015. RICHMAN GREER, P.A. Counsel for Plaintiffs One Clearlake Centre, Suite 1504 250 Australian Avenue, South West Palm Beach, Florida 33401-5016 Telephone: (561) 803-3500 Facsimile: (561) 820-1608 By: is/ Gerald F. Richman GERALD F. RICHMAN Florida Bar No.: 066457 grichman@richmangreer.com dcostonis@richmangreer.com ERIC M. SODHI Florida Bar No.: 0583871 esodhi@richmangreer.com mramirez@richmangreer.com RICHMAN GREER, P.A. Miami• West Palm Beach 48 RAS00000340 Case 9:15-cv-80182-KAM '~ jcument 1 Entered on FLSD Docke. 2/12/2015 Page 49 of 49 LEORA B. FREIRE Florida Bar No.; 0013488 lfreire@richmangreer.com RICHMAN GREER, P.A. Miami• West Palm Beach 49 RAS00000341 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 15-80182-CIV-MARRA TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, vs. MARTIN E. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC., Defendants. ------------------------------------~/ OPINION AND ORDER This cause is before the Court upon Defendants Martin E. O'Boyle, Airline Highway, LLC, Commerce GP, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Asset Enhancement, Inc., Commerce Realty Group, Inc., and Commerce Group, Inc.'s Motion to Dismiss Class Action Complaint [DE 10]; Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer's 1 RAS00000342 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 2 of 9 Motion to Dismiss Plaintiffs Class Action Complaint [DE 9]; Defendants Denise DeMartini, Citizens Awareness Foundation, Inc., Our Public Records, LLC, Stop Dirty Government, LLC, and Public Awareness Institute's Notice of Joinder in Motions to Dismiss Class Action Complaint [DE 12]; Defendants William Ring, Jonathan O'Boyle, and The O'Boyle Law Firm, P.C., Inc.'s Notice of Joinder and Motion to Dismiss Class Action Complaint [DE 13]; Defendant Christopher O'Hare's Notice of Joinder to Motions to Dismiss and Supplemental Motion to Dismiss Class Action Complaint [DE 17]. All motions are ripe for the Court's consideration. The Court has reviewed all papers filed in connection with these motions; the entire file; and is otherwise duly advised in the premises. A. Legal Standard With respect to a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court observes first that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has held that "[w]hile a complaint attacked by a 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above a speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible on its face."'. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when 2 RAS00000343 Case 9:15-cv-80182-KAM Do c ument 47 Entered on FLSD Docket 06/30/2015 Page 3 of 9 th e plaintiff pleads factual content that allo ws the court to draw the reasonable inference that the defendant is liabl e for the mi sconduct all ege d." !d. Thu s, "only a comp laint that state s a plausible claim for relief survives a motion to di smi ss." !d. at 1950. B. Background Facts When considering a motion to di smi ss, the Court must accept all of the plaintiffs a ll egations as true in determining whether a plaintiff has s tated a claim for which re li ef could be granted. Hishon v. King & Spalding, 467 U.S. 69 , 73 (1984). The Complaint alleges violations by Defendants of the Racketeer Influenced Corrupt Organizations Act ("RJCO"), 18 U.S.C . § 1964(a) and (c) [DE 1 at 31]. The basis for Plaintiffs' claim is the alleged filing of large numbers of frivo lou s public records reques ts, which are often intentionally inconspicuous, followed by th e commencement of lawsuits when the requests are not addressed. Plaintiffs allege that De fendants then u se the mails and wires to extort the ir v ictims by demanding settlements, including attorneys ' fees and costs as provided by the public records statute, or face protracted litigation and a flurry of additional frivolous public record s re quests and lawsuits. [DE 1 at 2]. Specifically, Plaintiffs assert that: [T]his bogus public record s request was an essential first-step of the RICO Enterprises' scheme to defraud and extort money from the cl ass m embers----it was nothing more than bait, a record s request for documents that the RJCO Enterprise had no intention of reviewing, and in stead, intended to be overlooked or mi ssed by th e receiving class member so as to tri gger the next step in the RJCO Enterprises' sche me. Afte r the bogus reco rds request was sent and hopefully overlooked, the RJCO E nterprise would then use the mail and the wires to: (i) demand a settle m ent of the r ecords request in excess of th e actual attorneys ' fe es 3 RAS00000344 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 4 of 9 and costs incurred by t he Defendant s; or (ii) file a frivolous lawsuit against the rec ipient of the bogus reco rd s r equest follow ed by the demand for settlement. * * * It is thi s threat of prevailing party attorneys' fee s that is the nucleus around which the Defenda nts created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that sc hem e. [DE 1 at~~ 37, 38, 52]. C. Discussion Accepting the allegations in the Complaint as true for purposes of the moti on s pending before the Court, Plaintiffs certainly find themselves in a very difficult s ituation. In particular, the Town of Gulf S tream , a small town of974 residents and 17 full time employees, has been inundated with public records requests by D efendants. The is su e befor e the Court, howeve r, is limited to whether Defendants' acts , as alleged by Pl a intiffs, violate RICO. For the reasons set forth b elow, th e Court find s that they do not. 1. Threatening to Sue or Actually Suing Someone Does Not Constitute a Predicate Act Under RICO. In order for a Plaintiff to survive a m otion to di s mi ss a civil RI CO case, a pla intiff mu s t s ho w a "pattern of racketeering activity" by a ll egi ng that the de fendant s committed two qualifying predicate acts. Republic of Panam a v. BCCJ Holdings, 119 F.3d 935, 948-49 (11th C ir. 1997). This requires that a plaintiff allege facts that supp ort each s tatutory ele ment of a v iola tion of one of the state or federal laws described in 18 U.S. C.§ 19 6 1(1). Raney v. Allstate In s. Co., 370 F.3d 1086, l 087 (11th C ir . 2004). The Court find s t he E leventh Circuit dec ision in Raney to be di spositive of the issu e 4 RAS00000345 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 5 of 9 before the Court. In Raney, the Court held that the filing of.a lawsuit, even if done malicious ly, cannot form a predicate act under RICO. In Raney, the RICO claim depend ed upon the Plaintiffs ability to show a violation of the Hobbs Act, which bars interference in interstate commerce by means of extortion. See 18 U .S.C. § 1951. The Eleventh Circuit noted that all of Raney's allegations of mai l fraud and extortion related to "the alleged conspiracy to extort money through the filing of malicious lawsuits." 370 F.3d at 1088. The Raney Court noted that this argument was foreclosed by the Eleventh Circuit 's decision in United States v. Pendergraft, 297 F .3d 1198 ( 1 )lh Cir. 2002), where the Court "held that neither the threat to litigate nor the fabrication of evidence behind the l awsuit made the action 'wrongful' within the meaning of 18 U.S.C. § 1951 and therefore could not be a predicate act under RICO." !d. The Raney Court mad e it clear that Pendergraft did not only apply to threats of litigation, but applied with equal force to actual litigation. We noted [in Pendergraft] that courts possess adequate procedures to distingui s h va lid claims from invalid claims and held that Congress did not intend to punish citizens merely for accessing the legal system ... We found ourselves "troub led by any u se of this federal criminal statute to punish civil litigants." ... We noted that "all owing l itigants to be charged with extortion would open yet another collateral way for litigants to attack one another." ... We also expressed concern about transforming every state-law malicious prosecution action into a fed eral crime .... A ll of these concerns apply to actual litigation with added force. 370 F.3d at 108 8 (citations omitted). The instant case is indistinguishab le from Raney. Plaintiffs' allegations that D efendants committed the "predicate crimes" of m ail fraud under 18 U.S.C. § 1341 , wire fraud under 18 5 RAS00000346 Case 9 :15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 6 of 9 U.S.C. § 1343, a nd extortion under 18 U.S.C. § 1951 , are ultimate ly dep endent upon th e threat of filing laws uits or the actual filing oflawsuits in order to extort preva ilin g party costs and attorneys' fee s. While the filing of allegedly fraudulent public re co rd s requ ests "was an essential first-s tep of the RIC O Enterprises' sc heme," "[i]t is th e threat of prevailing party attorney's fees that is the nucl eus around which the D e fendants created their scheme to defraud and exto rt, and organized th eir RI CO Enterprise to carry out that sc hem e ." [DE 1 at ~~37, 52]. Plaintiffs' attempts to distinguish Raney are un av ailing. They argue that courts have determined that w hen a RICO d efendant su es or threatens to sue as part of an ov erriding scheme or plan to ex tort money that it otherwise has no right to , and the suit threa tened or brought has no relation to the dispute in w hi ch the threat was made (i .e. resolution of the threatened litigation could not reso lve the di spute in which the threat is mad e), such a threat does constitu te the predi cate act of extortion for purposes of RICO. DE 34 at 8. T he cases cited by Plaintiffs, ho wever, are a ll fac tually inapposite a nd fro m other di stricts. This Court is bound to follow Raney. In their an alysi s, Plainti ffs ignore th at Raney spec ifica lly addressed m ali ciou s lawsuits, finding that th ey do no t constitute predicate acts. 2. T h e Filing of Public Record Requests Does Not Constitute a Predicate Act under RICO. To the extent Pl a intiffs m ay assert that they are relying on the filin g of public r ecord requ ests, in and of th emselves, as predicate acts to support their claims, th e Court rejects the legal v iability of that claim. Thi s assertion wou ld be co mpl e tely inco ns istent with Pl aint iffs' a ll egation that the publ ic r ecord s requests were mere ly "an essen tia l first-step" in th e scheme to defraud and ex tort money by threats of and the actual filin g of lawsuits. [DE 1 a t~~ 37, 38, 52]. Nevertheless , Plaintiffs allege that Defenda nts: used the m a il and the w ires to send out wh at is u sua lly an 6 RAS00000347 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 7 of 9 [DE 1 at ~37]. inconspicuous and frivolous public records request to the Class Members, often times under the guise of a false non-profit organization, and with a stated or implied purpose of advancing the public's interest in government transparency. Plaintiffs further allege that they were damaged due to "additional expenditures by the class members (i.e. hiring additional staff, paying overtime, etc.) to review and respond to the massive volume of bogus records requests". Id. at ~39. Section 1961 requires that a RICO plaintiff establish that a defendant could be convicted for violating any of its predicate statutes .... 18 U.S.C. § 1961 (defining racketeering activity to include conduct that is "chargeable" or "indictable" and "offenses" that are "punishable" under various criminal statutes). Therefore, in order to survive a motion to dismiss, a plaintiff must allege facts sufficient to support each of the statutory elements for at least two of the pleaded predicate acts. Republic of Panama v. BCCI Holdings, 119 F.3d 935, 948-49 (II th Cir. 1997). Defendants could not be convicted for filing the public record requests. Under Chapter 119 of the Florida Statutes, Defendants had the absolute right under current Florida law to file public record requests and then file lawsuits if the requests went unanswered. The motive for making a public record request is irrelevant under Florida law. See e.g., Microdecisions, Inc. v. Skinner, 889 So.2d 871, 875 (Fla. 2d DCA 2004). Furthermore, someone requesting access to or copies of public records may not be required to disclose background information such as a name or address unless the custodian is required by law to obtain the information. Chandler v. City of Greenacres, 140 So.3d 1080, 1084-85 (Fla. 4'h DCA 2014). The request can come from someone anonymously. I d. at 1085. The validity of the lawsuits Defendants brought is for the Florida state courts to 7 RAS00000348 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 8 of 9 determine. Essentially, Plaintiffs are complaining that Defendants are abusing the rights set forth in the Florida statutes. To the extent Defendants are abusing the ri ghts afforded them by the Florida public r ecord s laws , those abuses must be addressed in the individual lawsuits filed, or through a change in the laws by the Florida Legislature. Defendants' le gal use of these statutes does not constitute a predicate act under RICO. D. Conclusion Plaintiffs ' failure to plead a predicate act requires the dismissal of their Complaint. Because this is a fundamental prerequisite to a viable RICO claim, the Court does not need to address the other arguments raised by Defendants in support of their motions to dismiss. Accepting all of the facts set forth in the Complaint as true, the Court finds that it would be futile for Plaintiffs to try to amend their Complaint. The Complaint fails not due to a lack of finesse in pleading; rather, it fails because on the most fundamental level, the entire factual underpinning of Plaintiffs' case cannot, under a ny c ircumstan ces, constitute a RICO v iolation. Accordingly, it is h ereby ORDERED AND ADJUDGED: 1. Defendants Martin E. O'Boyle, Airline Highway, LLC, Commerce GP, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc ., Asset Enhancement, Inc., Commerce Realty Group, Inc., and Commerce Group, Inc.'s Motion to Dismiss C lass Action Complaint [DE 10] is GRANTED; 2. Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer's Motion to Dismiss Plaintiff s Class Action Compl a int [DE 9] is GRANTED; 3. Defendants Denise DeMartini, Citizens Awareness Foundation, Inc., Our Public Records, LLC, Stop Dirty Government, LLC, and Public Awareness Institute's 8 RAS00000349 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 9 of 9 Notice of Joinder in Motions to Dismiss Class Action Complaint [DE 12] is GRANTED; 4. Defendants William Ring, Jonathan O'Boyle, and The O'Boyle Law Firm, P.C., Inc.'s Notice of Joinder and Motion to Dismiss Class Action Complaint [DE 13] is GRANTED; 5. Defendant Christopher O'Hare's Notice of Joinder to Motions to Dismiss and Supplemental Motion to Dismiss Class Action Complaint [DE 17] is GRANTED. 6. This case is DISMISSED. Each party shall bear its own fees and costs. The Clerk of this Court shall CLOSE this Case. All pending motions are DENIED AS MOOT with each party to bear its own fees and costs. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 30"' day ofJune, 2015. 9 KENNETH A. MARRA United States District Judge RAS00000350 Cynthia Miller From: Sent: To: OConnor, Joanne M. <JOConnor@jonesfoster.com> Friday, September 9, 2016 9:17AM Robert Sweetapple; Cynthia Miller Subject: Fwd: PRR Bar Complaint and RICO Bill Sweetapple August 2014. Sweetapple Invoice 8-14.pdf; ATT00001.htm Attachments: Pis review for any attorney opinion work product Sent from my !Phone Begin forwarded message: From: Renee Basel <RBasel@gulf-stream.org> Date: September 9, 2016 at 8:50:35 AM EDT To: "OConnor, Joanne M." <JOConnor@jonesfoster.com> Subject: RE: PRR Bar Complaint and RICO Bill Sweetapple August 2014. This message originated from outside your organization Per your request, see attached. From: OConnor, Joanne M. [mailto:JOConnor@jonesfoster.com] Sent: Thursday, September 8, 2016 4:57PM , To: Renee Basel <RBasel@gulf-stream.org> / Cc: Robert A. Sweetapple (pleadlngs@sweetapplelaw.com) <rsweetapple@sweetapplelaw.com>; Cynthia Miller <cmiller@sweetapplelaw.corh> Subject: Fwd: PRR Bar Complaint and RICO Bill Sweetapple August 2014. Renee-can you find this bill and send to us for review? Thanks Sent from my !Phone Begin forwarded message: From: Jonathan O'Boyle <joboyle@oboylelawfirm.com> Date: September 8, 2016 at 4:41:16 PM EDT To: "OConnor, Joanne M." <JOConnor@jonesfoster.com>, Bill Thrasher <bthrasher@gulf-strea m .org>, Richard Conforti <rconforti@dld lawyers.com> Cc: Jonathan O'Boyle <joboyle@oboylelawfirm.com> Subject: PRR Bar Complaint and RICO Bill Sweetapple August 2014. This message originated from outside your organization I would like a copy of Sweetapple's August 2014 Bills in electronic format. Thank you. Jonathan O'Boyle, Esq., LLM. Licensed In Pennsylvania* 1 RAS00000351 Licensed In New Jersey* Licensed in Florida* The O'Boyle Law Firm, P.C. www.oboylelawfirm.com Pennsylvania Office 1001 Broad St. Johnstown, PA 15906 Tel: 814-535-5175 Fax: 215-893-3641 joboyle@oboylelawfirm.com New Jersey Office 10 Grove St. Haddonfield, NJ 08033 Tel: 814-535-5175 Fax: 215-893-3641 joboyle@oboylelawfirm.com Florida Office 1286 West Newport Center Drive Deerfield Beach, FL 33442 Office: 954-570-3533 Fax: 754-212-2444 joboyle@oboylelawfirm.com IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. =========================================================== NOTICE TO RECIPIENT THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION, AND MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION. 2 RAS00000352 Town of Gulf Stream 100 Sea Road Swectapplc, Broclcer, Varkns, P.L. 20 South East 3rd. Street Boca Raton, FL 33432 Telephone: (561 )392-1230 Fax: (561)394-6102 TOWN OF GULF STREAM I> PAYMENT APPROVED "'I Gulf Stream, FL 33483 .·Amow1(--2>~2L.. By, · ___ . ____ Date~ . ..._.,_ .. Check #_....lJ!.tJ::L,._Oale:ff./JJ I Client Number: 00949 Town ofOulfStrenm MaUer Number: 1679 O'Boyle vs. Town of Gulf Slrenm For Services Rendered Through 8/2212014. Fees Dnlc Tmknr OtScrintiOn 07/2612014 RS 07128/2014 RS 07129120 t 4 RS 07/30/20I4 RS 07/J0/20I4 RS 08/0I/20I4 AV 08/0II2014 JW 08104/20 I4 CB 08/04/2014 AV 08/04120I4 RS Meeting Rend treatise on-and cases. (Sundny). Workonl. Conference with opposing counsel. Receive and review motion nnd Conference with A. Vnrkns regarding Conference with Joanne; Review all ndditionnl PRRs cmnils; Conference with Hunnn; Meeting with A. Vorkns regardin!llil•l -Take notes. Draft nod 11nnlize letter to Smith and Tnylor enclosing Notice of Videotaped Deposition ofM. O'Boyle; Draft nnd finalize Notice of Videotaped Deposition of M. O'Boyle. Cou ferencc making notes. Review subpoenas and PRR; Couferencc. Continurd On Next l'agc August 22, 2014 Invoice No. l 0182 1.25 ARIOUflt $437.50 $437.50 J .00 $I ,050.00 !.60 $560.00 2.30 $805.00 !.75 $6I2.50 8.00 $I ,200.00 0.20 so.oo 2.00 $700.00 1.25 $437.50 RAS00000353 Client Nun~bor. 00949 08/2212014 Matter Numben 1679 Pngc: 2 OB/0412014 RS 8.50 $2,975.00 over 90 public records requests and nrticles; with Joanne; Set deposition and prepare letter. (Date 08103). 08/0412014 RS Continue work on (Evening). 2.00 $700.00 08/0512014 CB Updnt.-with R. Swcetnpple changes. 0.60 so.oo 08/0512014 AV 3.00 SI,050.00 08/0512014 RS 0.60 $210.00 08/0512014 RS Receive and review Motion for P.O.; Set hearing; Revise 2.40 $840.00 ~Review memos provided byO'Boylc g g . 08/0ii/2014 CB Draft and finalize Notice of Hearing on PlnintiiTMotion for 0.20 so.oo Protective Order; Emnil with <lpposlng counsel; Send hearing package to J udgc; Droll and finalize loNer to Judge Blanc. 08/0ii/20 I 4 RS Conference with Joanne; Conference in Richman otlice. 0.40 Sl40.00 08/0712014 RS Conference with Joanne; Conference 4.00 $1,400.00 Prepare spoliation letters; -lnw;Orull Receive and review 08/0712014 CB Droll and finalize spoilation letters; Email with opposing counsel; Update letter to -Letter to Richman; Email the spoilation 1.00 so.oo letters to: Commerce Group, J. O'Boyle, M. O'Boyle, D. Demartini, W. Ring, CAFI, R. Witmer, V. Taylor; Orall Amended Notice of Hearing for 8,12 file. 08/0812014 RS Outline-issues and dlclnte memo. 1.50 $525,00 08/08/2014 CB Prepare henrlng folder· forM. O'Boyle's Motion for Protective 0.50 $0.00 Order; Em ails with opposing counsel. 08/1 11201·1 RS 14.00 $4,900.00 with Joanne and Scott; Begin review and outline )Oates 08/09 and 0811 0). 0811212014 RS 3.50 $1,225.00 Condnucd On Nut Jlngc RAS00000354 Client Number: 00949 ~Inlier Numbm 1679 08/J2!2014 RS Conference with-Continue outline statement; Motion with Hanna regarding settlemcnl O'Hare. OBII412014 RS Conference wilh Joanne; Review filing by O'Hare nnd O'Boyle law firm. 0811412014 RS Conference with Geny regarding-Conference with Joanne; Conferencc- 08/JS/2014 RS Emnils to Hnnnn; Conference in Richman's office; Conference with Jo!111nc. (Dale 08114). 08118/2014 RS Prepare for hearing (evening); Review multiple emails with Hanna regarding O'Hare. 0811812014 RS Conference with Scott; Travel nnd attend meetings will1 Joanne, Scott and Richman; Work on- 0811812014 RS Conference with Scott and Delray's legal counsels. 08/1912014 RS Prepare travel nnd nttcnd hearing; Conference with Joanne nnd Richman; Meeting with city mnnager nnd conference with Scott; Receive nnd review cmnils. 0811912014 RS Review letter and motion; Prepare letter. 0812012014 RS Receive nnd review emnils from Taylor; Conference. 0812012014 RS Prepare Motion nnd email; Conference with Joanne. 08121/2014 RS Meeting with Scott; Conference with Joanne; Conference with witness; Conference with opposing counsel. 0812112014 RS Conference with Joanne nnd Scott 08121/2014 RS Review motions; Prepare letter, Blllnblc Hours I Fees: Cost Detail Dn!e Oescrlpllon 2.75 1 .. 00 0.80 0.40 L25 3,:!.5 0,50 350 0.50 0.30 0.60 2.20 0.20 0.50 -- 82.55 Amount 0712312014 Mileage at SO.S61mile S22l.20 0712812014 Postage ·July 2014 4.80 0712812014 Photocopy Charges -July 2014 283.75 0812212014 Photocopy Charges· August 2014 343.00 Total Costs $852,75 Continued On Next Pngc 08/2212014 Pugc; 3 $962.50 S350.00 $280.00 $140.00 $431.50 $1,137.50 $175 .. 00 $1,2:!.5.00 $175.00 $105.00 $210.00 $710.00 $70.00 Sl75.00 $26,417.511 Ch~t:& No. RAS00000355 Clicnl Number: 00949 Mollcr Number: 1679 0812212014 Pngc: 4 Prior Bnluncc: Payntonls Received: $17,902.50 ($17,902.50) S26,417.50 Lnsl l'nymenl: 07/31/20!4 Current fi'ecs: Advunccd Cosls: $852.75 TOTAL AMOUNT DUE: 527,270.25 PLEASE REMIT TO: SWEET APPLE. BROEKER & VARKAS. P.L. 20 S.E. Jrd. STREET. BOCA RATON. FL 33432 PLEASE INDICATE INVOICE NUMBER ON CHECK. THANK YOU! RAS00000356 RAS00000357 Cynthia Miller From: Sent: To: Chris O'Hare <chrisoharegulfstream@gmail.com> Saturday, August 13, 2016 12:03 PM bthrasher@gulf-stream.org; RTaylor@gulf-stream.org; Robert Sweetapple; Cynthia Miller Subject: Re: Public Record Request-sweetapple RICO evidence against O'Hare Dear Custodian of Records, On July 9, 2016 I wrote you and requested to inspect a public record (copied below for your reference). This was a singular request for specific records related to a specific party and a:· specific subject. Here again is tbe description of the record I requested to inspect: I request to inspect all records of evidence in the custody of Robert Sweetapple or Sweetapple, Broeker & Varkus that the Town and Wantman Group Intended to use specifically to prove Christopher O'Hare was guilty of RICO. On July II you responded: 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. Then on August 9 you again responded, this time as part of a ganged response: Your request fails to identify with reasonable specificity the public records that you seek. No decision was made by the Town regarding the records that it intended to use specifically to prove Christopher O'Hare was guilty of RICO. That case was never set for trial and was dismissed before discovery began. We consider these requests closed. I am writing you now regarding that portion of your ganged response that is specific to my original request. I offer, as clarification of my request, my response to each of your statements. You wrote: Your request fails to identify with reasonable specificity the public records that you seek. I reply: "all records of evidence in the custody of Robert Sweetapple ... that the Town and Wantman Group intended to use specifically to prove Christopher O'Hare was guilty of RICO" seems reasonably specific to me. Please tell me how much more specific you want me to be. For instance must I identify the date the record was made? Who made the record? What kind of evidence the record contained? Let me know what more information you need and I will try to accommodate you as best I can. You wrote: No decision was made by the Town regarding the records that it intended to use specifically to prove Christopher O'Hare was guilty of RICO. I reply: I did not ask you for information about these records. If the phrase "intended to use" is causing you some confusion then I ask tbat you delete the phrase "intended to use" from the request and replace it with tbe phrase "relied upon." Therefore the record I request to inspect is best described as: All records of evidence in the custody of Robert Sweetapple or Sweetapple, Broeker & Varkus that the Town and Wantman Group mteRde<l-to-ase relied upon specifically to prove Christopher O'Hare was guilty of RICO. 1 RAS00000358 You wrote: That case was never set for trial and was dismissed before discovery began. I reply: So what. Please refer to the terms conditions, admonitions and references contained in my original request when responding to this follow up clarification. Please respond to this singular request in a singular manner and do not gang your response collectively with any other responses you may have to other requests. As a continued courtesy to you and your contractors and to assist in expediting my access to records responsive to this request I am notifying persons that may have custody of these public records to this follow up clarification by copy of this email. May I hear from you soon? Sincerely, Chris O'Hare chrisoharegulfstream@gmail.com On Sat, Jul9, 2016 at 8:49AM, Chris O'Hare <chrisoharegulfstream@gmail.com> wrote: Dear Custodian of Records, I request to inspect certain public records 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 be material to current, anticipated or presently unforeseen legal action. In addition, inspection of these records is 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. Before making this public record request, I first searched online and in the public records portion of your agency's website hoping I could locate the public records I seek without having to write you directly. Unfortunately I cannot find the records 1 request to inspect. Therefore I am writing you now and requesting you make every effort as required by law to produce these public records without delay. I believe the records I seek to inspect may be in your custody AND/OR in the custody of entities under contract with your agency· namely Robert Sweetapple or Sweetapple, Broeker & Varkus. As a courtesy to you and your contractors and to assist in expediting my access to records responsive to this request I am notifying persons that may have custody of these public records at Robert Sweetapple or Sweetapple, Broeker & Varkus of this request by copy of this email. Do not assume my act of copying these contractors with this request relieves you of any of your duties under Florida Statute. 1 ask that you contact these entities yourself, inform them of their obligations under Florida Statute and produce any responsive records in their custody 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. hereby reserve all rights granted to me under the Florida Constitution and Florida Statutes. 1 ask that you take the following action: • Read this entire request carefully and respond accordingly. 2 RAS00000359 " 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. " 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). " Provide those records for inspection that do not require extensive use of information technologies or extensive staff time or both in excess of 15 minutes and along with the production of those records provide the cost for producing the balance of the responsive records. As background to this request I call to your attention the dismissal of the Town's RICO complaint by the Eleventh Circuit, filed 06/21-2016 in Case:15-13433. I also call to your attention a speech made by Mayor Scott Morgan during the Town of Gulf Stream public meeting held July 8, 2016 in Town Hall where Morgan stated: I want to just give you an update on the litigation status. The RICO action is finished, ... I understand the decision by the Eleventh Circuit concludes the litigation of the RICO persecution of Christopher O'Hare by the Town of Gulf Stream and that Mr. Morgans statement cited above, confirms such. Therefore records previously exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution are no longer exempt and must be produced for inspection. Here is that statute for your reference: 119.071 General exemptions from inspection or copying of public records.- (1) AGENCY ADMINISTRATION.-(d)1. A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or crimina/litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or crimina/litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. I request to inspect all records of evidence in the custody of Robert Sweetapple or Sweetapple, Broeker & Varkus that the Town and Wantman Group intended to use specifically to prove Christopher O'Hare was guilty of RICO. FIRST PRODUCE RECORDS THAT DO NOT REQUIRE EXTENSIVE USE OF INFORMATION TECHNOLOGIES OR EXTENSIVE STAFF TIME OR BOTH IN EXCESS OF 15 MINUTES AND ALONG WITH THOSE RECORDS PROVIDE THE COST FOR PRODUCING THE BALANCE OF THE RESPONSIVE RECORDS. 3 RAS00000360 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 1 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 l'ltigat'1on and is only exempt from disclosure until the conclusion of the litigation. I ask you to note that under §119.07(2)(al of the Florida Statutes that a person who has custody of a public record and who asserts that an exemption applies to a particular public record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validity applies, and such person shall produce the remainder of such record for inspection and examination. 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 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. 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. 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 §119.011(12lof the Florida Statutes. 4 RAS00000361 Please contact me at the email address shown below and request clarification if there is any part of this record request you do not understand. All responses to this public records request should be made in writing to the following email address: chrisoharegulfstream@gmail.com 5 RAS00000362 Cynthia Miller From: Sent: To: Cc: Subject: Attachments: All- OConnor, Joanne M. <JOConnor@jonesfoster.com> Wednesday, August 3, 2016 1:04 PM Gerald F. Richman; Jeff Hochman; Robert Sweetapple Cynthia Miller; Cindy Feld (cfeld@richmangreer.com); Macfarlane, Mary; Wid boom, Daniel R. Gulf Stream-Response to Motion for Sanctions (JMO) 1 Q14683-response motion sanctions.DOCX Attached is a draft response to O'Hare's motion for sanctions that I have prepared to be filed on my individual behalf. I have included a significant amount of ·Information relative to the allegations of the Complaint which, since I only appeared in this case after the appeal was filed, is likely more properly included in either Gerry's response or that filed by Jeff for the Town. The responses are due Monday, August 81h. Please review and let me know if you would like to discuss this Friday. Any communications regarding these responses not intended as public record communications should not copy Jeff, who will be responding as counsel for the Town. Thanks, Joanne JONESF·OSTER ""p~~~,.·--~, _ptJJi·N~;.'t(,l~ >\:':'ff1Jtue:, 1" •. 1\.. Joanne M. O'Connor Florida Bar Board Certified Business Litigation Attorney Telephone: .%1.650.0498 I Fax: 561.650.5300 I joconnor@jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Flot:ida 33401 561-659-3000 I www.jonesfoster com Incoming emails are ftltered which may delay receipt. This email is personal to the named redpient(s) and may be privileged and confidential. If you are not the intended .recipient, you received this in er.to.r. If so, any .review, dissemination, or copyi11g of this email is prohibited. Please immediately notify us by email and delete the original message. 1 RAS00000363 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO: 9:15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, v. MARTIN E. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOV ANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC. Defendants. ------------------------------------~/ CLASS ACTION RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO MOTION FOR SANCTIONS OF JOANNE M. O'CONNOR, ESO. Joanne M. O'Connor, Esq. ("Attorney O'Connor"), individually, responds to the Motion for Sanctions (DE 54) (the "Motion") filed by Defendant, Christopher F. O'Hare ("O'Hare"), which Motion purports to seek sanctions in the form of attorney's fees and costs in defending this action against attorneys Gerald Richman, Esq., Robert Sweetapple, Esq.1 and Attorney 1 Mr. Sweetapple is not a party, nor is he counsel ofrecord for any party. RAS00000364 O'Connor and, in the alternative against the attorneys and the Plaintiffs, Town of Gulfstream ("Town") and the Wantman Group, Inc., and states: SUMMARY OF ARGUMENT O'Hare offers this Court absolutely no basis to sanction Attorney O'Connor, a Florida attorney retained solely to represent the Town on appeal from this Court's Final Judgment. That appeal was prosecuted in the ordinary course and while the Eleventh Circuit affirmed, finding that the Plaintiffs' allegations failed to state a claim tmder RICO, it also took particular note of the "frustrating" and "distasteful" nature of the conduct alleged in the Complaint to have been engaged in by O'Hare, O'Boyle and others: The allegations in the plaintiffs' complaint present a frustrating picture. Accepting those allegations as true, the defendants have engaged in a concerted effort to capitalize on the relatively unfettered access to public records Florida has granted its citizens by bombarding small towns and municipalities with public records requests to which they cannot respond adequately. (Opinion dated 6/21116, attached as Exhibit "A", at 12-13). The Eleventh Circuit squarely rejected the joint motion of Appellees, including O'Hare, for sanctions pursuant to Federal Rule of Appellate Procedure 38. (See id. at 13 n.7). O'Hare now suggests that O'Connor should be personally sanctioned --not for any conduct associated with the appeal, 2 let alone any bad faith conduct associated with same --but because the Town filed the lawsuit against O'Hare in the first instance. O'Hare's Motion is nothing more than an attempt to circumvent Federal Rule of Civil Procedure 11 more than one year after this Court entered its Final Judgment and seek sanctions based on information that has been available to him since before suit was filed, without affording Plaintiffs or their counsel any 2 In fact, the entire background section of the Motion is captioned "INCLUDING O'HARE IN THE RICO CLASS ACTION COMPLAINT." (DE 54 at 3-8). 2 RAS00000365 of the protections of that rule. The Motion seeking sanctions pursuant to 28 U.S. C. § 1927 and the Court's inherent authority is procedurally barred and wholly without merit. BACKGROUND A. The Purported Basis for this Motion Has Been Available to O'Hare Since Before the Suit was Filed. The gist of O'Hare's claim is that prior to the filing of the Complaint, the Town Mayor, Scott Morgan, and outside counsel, Robert Sweetapple, made threats or otherwise intimidated him and that a whistleblower who had provided information used by the Town to prepare the lawsuit, Joel Chandler, expressed to Attorneys O'Connor and Sweetapple his "disappointment and concern" that O'Hare had been included in tl1is suit and his belief that the Town should cave in to O'Hare's demands. O'Hare does not claim that this information was withheld from him or the Town. Instead, he concedes just the opposite: O'Hare admits that months before the suit was filed in February 2015 (I) he advised the Town Commission at meetings on October 10, 2014 3 and November 14, 2014 that he had purportedly been told by Attorney Sweetapple that he would not be included in the RICO action if he dismissed his public records cases against the Town (DE 54 at 5, 7 & Exs. FIG, DE 54-1 at 52/57, 57/57); and (2) he "immediately shared" with the Town Commission an email his counsel received from Chandler on November 17, 2014 expressing Chandler's opinion that O'Hare had done nothing wrong. (DE 54 at 7 & Ex. C, DE 54-1 at 23/57). After hearing from O'Hare and its attorneys, the Town Commission still voted unanimously to retain Richman Greer, P .A. and, specifically, Attorney Richman to file the RICO action. (Motion Ex. F, DE 54-1 at 48-52). 3 As the Town Commission Minutes O'Hare attached as Exhibit G to his Motion reflect, O'Hare spoke at the October 10, 2014 meeting prior to the Town's vote to retain Richman Greer, P.A .and Attorney Richman and advised the Town "that 3 months ago Mr. Sweetapp1e said to his attorney that if he dismissed all of this charges Mr. O'Hare would not be included in the RICO action." [DE 54-1 at 52]. 3 RAS00000366 B. The District Court Proceedings. The Richman Greer firm filed this suit against O'Hare and others on behalf of the Town and the Wantman Group, Inc. on February 12, 2015. [DE 1]. Among the 140 paragraphs of the Complaint are detailed allegations of O'Hare's involvement in the underlying pattern of racketeering. [DE 1 at~~ 75-88, 105-108, 124(c), 129-133]. Other than the generalized opinion of non-attorney Chandler that O'Hare should not have been named, O'Hare does not assert that Plaintiffs or their counsel, Attorney Richman, ever had any reason to believe that the specific allegations of the Complaint were frivolous when made. More significantly, that Chandler may believe that O'Hare is a "good guy" fails to challenge the factual basis of any the Complaint's detailed allegations regarding O'Hare's involvement: • Chandler met with O'Hare in 2013 to discuss public records litigation. (Compl. ~75). Indeed, Chandler has now testified that after he first met with Martin O'Boyle in early 2013 and before he went to work for O'Boyle at the Citizens Awareness Foundation in early 2014, O'Hare's counsel, Lou Roeder, hired Chandler to talk to O'Hare and Roeder about public records issues. (Ex. A to Motion, Chandler 2/24/16 at 179). Chandler traveled to South Florida, where he provided Roeder and O'Hare with "a private Public Records Act 101 seminar." (See id. at 180). Chandler understood that either Martin O'Boyle or Jonathan O'Boyle had referred him to Roeder. (See id.). • O'Hare began making public records requests to the Town in July 2013 and, after he had made more than 500 public records requests to the tiny Town ofless than 1,000 residents (including 60 in a single day), began using fraudulent aliases in order to avoid the statutorily permitted special service charge that the Town would otherwise have imposed. (Compl. ~~ 79-81 ). • At the time the Complaint was filed, O'Hare had turned nearly 1,000 public records requests into more than two dozen lawsuits. (Compl. ~86). (Notably, Chandler testified that he has no lmowledge of the public records requests O'Hare has made to the Town or public records lawsuits brought against the Town, Ex. A to Motion, Chandler 2/24/16 at 160-61, 182). • O'Hare has been a client of the O'Boyle Law Firm and Jonathan O'Boyle since the Firm's inception in January 2014; the Firm represented him in 10 public records suits at the time suit was filed in February 2015, with the first suit filed on his behalf on January 22,2014. (Compl. ~ 87). 4 RAS00000367 o Martin O'Boyle and O'Hare joined forces to barrage the Town with public records requests in January 2014 (Compl. ~ 107) and thereafter jointly sued the Town in May 2014. (Compl. ~ 88). o In June 2014 alone, approximately 180 public records requests were made to the Town by O'Hare (using fictitious names), O'Boyle and other defendants. (Compl. ~107). O'Boyle and O'Hare thereafter appeared together at a July 2014 Town Commission overtly threatening to cause the Town to spend increased legal fees or settle at the risk of continued public records requests and lawsuits. (Com pl. ~1 08). Nor does O'Hare offer any evidence to suggest that Plaintiffs or their counsel acted in bad faith when they alleged that his role in the enterprise involved filing frivolous public records requests and suits solely to generate fees for himself, Martin O'Boyle, Jonathan O'Boyle and the O'Boyle Law Firm and to fraudulently induce violations of the Public Records Act by making public records requests using false aliases. (Compl. ~124(c)). The record of the proceedings before this Court reflects that certain defendants promptly filed motions to dismiss directed to the Complaint (DE 9, 10) and the remainder joined in those motions. O'Hare joined in the motions and notices of joinder. (DE 17). Of note, on March 18, 2015, O'Hare also served a "Supplemental Motion to Dismiss" outlining the very grounds for dismissing the claims against him that he now asserts constitute evidence bad faith: 7. In addition to the arguments raised in the joined Motions to Dismiss and Notices of Joinder, the Defendant CHRISTOPHER O'HARE offers the following supplemental grounds that the Class Action Complaint should be dismissed: (a) A review of tl1e allegations made in the Class Action Complaint [D.E.1] and the Exhibits [D.E. 4] clearly reflect that the Defendant CHRISTOPHER O'HARE has never made a public records complaint against any entity other than the Town of Gulf Stream. Accordingly is not a proper Defendant in this lawsuit;4 and 4 Compare Motion at~ 11: "A review of the omnibus allegations made by the Plaintiffs in the Class Action Complaint [D.E. 1] and the Exhibits [D.E. 4] clearly reflect that the Defendant O'Hare has never made a public records complaint against any entity other than the Town of Gulf Stream." 5 RAS00000368 (b) A review of the allegations made in the Class Action Complaint [D.E.l] and the Exhibits [D.E. 4] reflects Defendant CHRISTOPHER O'HARE has never been involved with any of the other Defendants in any public records complaints, except that he is a client of the O'Boyle Law Firm who are handling a portion of his public records lawsuits against the Plaintiff Town of Gulf Stream;5 and (c) Further, the Plaintiff Town of Gulf Stream, has made multiple threats against Defendant CHRISTOPHER O'HARE beginning in July 2014 where the Plaintiff Town of Gulf Stream demanded that Defendant CHRISTOPHER O'HARE dismiss ALL of his pending lawsuits against the Plaintiff Town of Gulf Stream, including complaints regarding Defendant CHRISTOPHER O'HARE'S federal civil rights and other state law violations having nothing to do with public records requests or the Plaintiff Town of Gulf Stream would include Defendant CHRISTOPHER O'HARE as a co-defendant in the filing of the Class Action Complaint [D.E. 1];6 and, (d) The threats by Plaintiff Town of Gulf Stream noted in 7(c), above regarding the inclusion of Defendant CHRISTOPHER O'HARE in the Class Action Complaint [D.E. 1], is yet the latest instance of retaliation by Plaintiff Town of Gulf Stream against Defendant CHRISTOPHER O'HARE for speaking out against the behavior and policies of the Town and its leaders and to chill Defendant CHRISTOPHER O'HARE'S right to free speech. (See id.). Notwithstanding that O'Hare had the information on which he now relies before the Complaint was filed and had outlined much of it in his supplemental motion to dismiss, he never argued to this Court that the Complaint lacked any factual basis, the allegations were frivolous, or the Plaintiffs or their attorneys had acted in bad faith or in contravention of Rule 11. 5 Compare Motion at~ II:" ... Additionally, no evidence of any involvement of O'Hare with any of the other Defendants was cited in the Class Action Complaint. Accordingly, he was not a proper Defendant in this lawsuit" and at~ 12: "A review of the omnibus allegations made by the Plaintiffs ... reflects Defendant O'Hare has never been involved with any of the other Defendants in any public records complaints." 6 Compare Motion at~ 13: "Plaintiff Gulf Stream, has made multiple threats against O'Hare all prior to the filing of the Complaint, where Plaintiff Gulf Stream, either through Robert Sweetapple, their attorney, or Scott Morgan, the Town Mayor, has demanded that Defendant O'Hare dismiss ALL of his pending lawsuits against Plaintiff Gulf Stream ... " 6 RAS00000369 After briefing related solely to the Motions to Dismiss and prior to any discovery or other motion practice, this Court dismissed the Complaint in June 2015. The Court held that filing public records requests, even when done by an enterprise established to make a large number of frivolous public records requests which would then be turned over to a captive law firm to file suit and seek statutory attorney's fees, did not constitute a statutory "predicate act" under RICO. (DE 47). In its order, the Court directed that "[ejach party shall bear its own fees and costs." (Id. at 9) (emphasis added). On July 1, 2015, the Court entered its Final Judgment. (DE 48).7 C. The Appellate Proceedings. The Towo of Gulf Stream, represented by Richman Greer, appealed this Court's dismissal to the Eleventh Circuit on July 29, 2015. (DE 49). Attorney O'Connor appeared before the appellate court on behalf of the Town on September 17, 2015. (A copy of the 9/17115 Appearance of Counsel form is attached as Exhibit "B"). The Town filed its Initial Brief and a Reply to the Answer Brief of the Appellees in the normal course. The only motion practice in the appellate court was the previously mentioned Joint Motion for Rule 38 Sanctions filed by Appellees. As noted, the Eleventh Circuit denied the motion for fees in its June 21, 2016 Opinion. On July 27, 2016, the appellate court issued its Mandate. D. O'Hare's Motion for Sanctions. O'Hare now asserts that he should not have been named in the lawsuit because Chandler did not think O'Hare was a "bad guy" and may have opined to Attorneys O'Connor and Sweetapple that the Town should give in to O'Hare's demands. (DE 54 at 5 & Ex. C). O'Hare 7 O'Hare did not move this Court within 28 days of entry of judgment to alter or amend under Rule 59( e), nor did he move for relief from that pati of the order directing each party to bear their own fees and costs under Rule 60(b ). Not surprisingly since this Court directed him to bear his owo fees, O'Hare likewise did not move for attorneys' fees and costs within 60 days of the Final Judgment as required by Local Rule 7.3(a)(l). 7 RAS00000370 asserts that these opinions of Chandler, a non-attorney with no knowledge of RICO let alone the thousands of public records requests made by O'Hare to the Town and dozens of resultant lawsuits, somehow should have "confirmed" to the Town that O'Hare was not involved in the alleged scheme. (DE 54 at 5). The totality of the "evidence" on which O'Hare relies in seeking sanctions are purported communications made by Chandler to Attorneys Sweetapple and O'Connor, and thereafter to O'Hare himself, by which Chandler purportedly expressed his "disallpointment and concern" that O'Hare was involved in this suit and his opinion that O'Hare had done nothing wrong and was not "the bad guy" and "that the Town should concede to [O'Hare's] demand and be done with it." O'Hare suggests that Chandler's opinions somehow constitute "evidence" that "show that O'Hare had no part in" the underlying conduct. Yet Joel Chandler readily admitted that when he spoke to Attorney Sweetapple prior to the Town's filing of the Complaint, he knows nothing about civil RICO: And frankly, at that point, I didn't know there was such a thing as a civil RICO. We were talking about stuff I don't know anything about. I just don't know. Like I said before. I watch the Sopranos, but other than that, I don't know anything about RICO. Ex. A to Motion, Chandler 2/24/16 at 251. See also Ex. A to Motion, Chandler 2/24/16 at 177-78 ("The totality of what I know about RICO is from watching the Sopranos. I don't understand the ins and outs of RICO."). Chandler further conceded that he had no knowledge of the number of public records requests O'Hare has made to the Town. See id. at 182. While Chandler was intimately familiar with the Public Records Act lawsuits brought by his former employer and co-Defendant, Citizens' Awareness Foundation, Inc. ("CAFI") because he had actually made the tmderlying public records requests on CAP I' s behalf, he had no particular knowledge regarding the public records suits otherwise brought against the Town. See id. at 160-61. 8 RAS00000371 MEMORANDUM OF LAW I. The Motion is Procedurally Barred. A. Sanctions Cannot Be Awarded Against Attorney O'Connor For the Filing of the Lawsuit. Attorney 0' Connor did not appear as counsel in this case until after the appeal was filed. O'Hare does not argue that Attorney O'Connor prosecuted the appeal in bad faith or multiplied the appellate proceedings unnecessarily. Nor could he. There is nothing in the record to suggest that the appeal was frivolous or prosecuted other than in a good faith and professional manner. The Eleventh Circuit agreed. Sanctions against Attorney O'Connor for any alleged conduct associated with the decision to file the Complaint would be improper. B. The Motion is Untimely. Brought more than one year after Final Judgment, the Motion must be denied as untimely because all of the sanctionable conduct alleged by O'Hare occurred and was discovered by him prior to the filing of the Complaint. In Cadle Co. of Conn. v. Benevento (In re Benevento), Judge Kimball denied a motion for sanctions pursuant to the court's inherent authority filed after the fmal judgment was entered. 2013 Bankr. LEXIS 1217 (Bankr. S.D. Fla. March 27, 2013). As does O'Hare, the defendant in Benevento asserted that prior to filing the complaint, the plaintiff had "completely failed to obtain evidentiary support for the material allegations advanced" therein. See id. at * 17 (internal citations omitted). The court held that the motion for sanctions pursuant to the court's inherent power was untimely and should be denied because "all of the sanctionable conduct alleged by the Defendant to have been committed by the Plaintiff ... and the Firm occurred, and was discovered by the defendant, prior to this Court's entry of its Final Judgment and Memorandum Opinion." Id. at *27. "[W]here sanctionable conduct occurs and is discovered before final judgment, a motion for sanctions pursuant to the court's inherent power 9 RAS00000372 must be filed before entry of the court's final order." Id. at *27-28 (quoting Peer v. Lewis, 606 F.3d 1306, 1315 n.lO (11th Cir. 2010)) (emphasis added). If O'Hare wanted this Court to reconsider its order directing him to bear his own fees and costs associated with the District Court proceedings, he should have timely moved to alter or amend the Court's judgment within 28 days pursuant to Rule 59( e). At a minimum, any motion for attorney's fees or costs had to be filed within sixty (60) days of the July 1, 2015 Final Judgment, regardless of the pendency of any appellate proceedings. S.D. Fla. L. R. 7.3(a)(l). Any argument by O'Hare that he can avoid the requirements of Local Rule 7.3 by styling his Motion as one for "sanctions" must be rejected where the only relief sought is attorneys' fees and costs. See Latele TV, CA. v. Telemundo Communs. Grp., LLC, 2015 U.S. Dist. LEXIS 38478, at *9 (S.D. Fla. March 26, 2015) (explaining that although Local Rule 7.3 does not expressly apply to sanctions motions, it may apply to a sanctions motion seeking only attorneys' fees based upon a final judgment). See also Miller v. Relationserve, Inc., 2006 U.S. Dist. LEXIS 87139, at *8-1 0 (S.D. Fla. Dec. 1, 2006) (finding motion for fees and sanctions untimely under S.D. Fla. L.R. 7.3 when it was filed 35 days after entry of the Court's final judgment; prior version of rule required motion be filed and served within 30 days). O'Hare's failure to timely move this Court to reconsider its decision on fee and costs is fatal. C. The Motion is a Belated and Improper Attempt to Circumvent Rule 11. At its core, the Motion is a belated and improper attempt to circumvent Federal Rule of Civil Procedure 11. O'Hare asserts that he should never have been named in the lawsuit and that the Town and its attorneys knew or should have known the suit was frivolous when filed. More significantly, O'Hare concedes that he was aware of the purported grounds for asserting the suit was frivolous on which he now relies before the Complaint was even filed. Under these circumstances, the proper course was not to ignore Rule II' s safe harbor requirements and sit 10 RAS00000373 back and wait to spring a belated claim for fees and costs until one year after this Court entered Final Judgment, but to alert Plaintiffs and their counsel to any perceived defect in the Complaint with a timely served motion that would have permitted them the opportunity to respond. Courts have uniformly denied Rule ll motions where, as here, a motion was not filed until after the case was dismissed. See Roth v. Green, 466 F.3d 1179, 1193 (lOti' Cir. 2006) ("service of a sanctions motion after the district court has dismissed the claim or entered judgment prevents giving effect to the safe harbor provision or the policies and procedural protections it provides, and it will be rejected.") (internal quotations and citation omitted); Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 389-90 (4tl' Cir. 2004) (reversing sanctions award where Rule 11 motion filed after sun1mary judgment granted); In re Pennie & Edmonds LLP, 323 F.3d 86, 89 (2d Cir. 2003) (Rule 11 's safe harbor provision "functions as a practical time limit" for the filing of a motion for sanctions, as such motions "have been disallowed as untimely when file dafter a point in the litigation when the lawyer sought to be sanctioned lacked an opportunity to correct or withdraw the challenged submission"); Tompkins v. Cyr, 202 F.3d 770, 788 (5th Cir. 2000) (holding sanctions properly denied where Rule 11 motion filed after trial's conclusion). These cases find strong support in the Advisory Committee Notes to Rule 11, which expressly reject the notion that parties can delay bringing a Rule 11 motion until the end of the case to deprive the non-movant of its safe harbor: Ordinarily the motion should be served promptly after the inappropriate paper is filed, and, if delayed too long, may viewed as untimely ... Given the "safe harbor" provisions [in Rule 11(c)(2)], a party cannot delay serving its Rule 11 motion until conclusion of the case (or judicial rejection of the offending contention). Fed. R. Civ. P. 11 Adv. Comm. Notes (1993 Amends., Subdivisions (b) and (c)). Where Rule 11 clearly would have been sufficient to address O'Hare's claim that "the factual contentions [against him lacked] evidentiary support", Fed. R. Civ. P. 11(b)(2), yet 11 RAS00000374 O'Hare failed to file a timely motion under that rule, this Court' inherent power is no longer available to him to remedy the perceived defect. See Benevento, 2013 Bankr. LEXIS 1217, at *39 (addressing the bankruptcy equivalent to rule 11, Fed. R. Bania. Pro. 9011). See also Chambers, 501 U.S. at 50 ("if appropriate sanctions can be imposed under provisions such as Rule 11, courts should not exercise their inherent power"); Peer, 606 F. 3d at 1315 ("Generally, if appropriate sanctions can be imposed under provisions such as Rule 11, courts should not exercise their inherent power."); Roy v. Board of Cnty. Comm 'rs, 2011 U.S. Dist. LEXIS 119260, at *10 (N.D. Fla. Sept. 27, 2011) (relying on Peer to deny a motion for sanctions pursuant to the court's inherent power that was filed after the entry of final judgment). Indeed, inherent power sanctions are generally considered a gap filler to be used "[w]hen rules alone do not provide courts with sufficient authority to protect their integrity and prevent abuses of the judicial process." Benevento, 2013 Bankr. LEXIS 1217, at *29 (citing Shepard v. Am. Broad Cos., 62 F.3d 1469, 1471 (D.C. Cir. 1995)). Here, Rule 11 was more than "up to the task" to protect the court's integrity and prevent abuses. O'Hare's belated attempt to enlist the Court's inherent power after deliberately ignoring its procedural rules must be rejected. II. The Motion is Meritless. A. No Grounds Exist for Section 1927 Sanctions. Sanctions under 28 U.S.C. § 1927 are not appropriate here, where O'Hare complains that he was improperly included as a defendant in the lawsuit when initially filed. To be sanctionable under Section 1927, an attorney's conduct must unreasonably and vexatiously multiply the proceedings. Section 1927, entitled "Counsel's liability for excessive costs," provides: [a]ny attorney ... admitted to conduct cases in any court of the United States ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927 (emphasis added). 12 RAS00000375 A court may not award sanctions under this section unless: (I) the attorney engaged in unreasonable and vexatious conduct; (2) that conduct multiplied the proceedings; and (3) the amount of the sanction relates directly to the excess proceedings. Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007). The Eleventh Circuit has "consistently held" this standard will be met "only when the attorney's conduct is sa egregious that it is 'tantamount to bad faith."' !d. (emphasis added) (citation omitted). The provisions of Section 1927 are penal and thus strictly construed. Peterson v. BMI Refractories, 124 F.3d 1386, 1395 (11th Cir. 1997). Section 1927 "is not a 'catch-all' provision for sanctioning objectionable conduct by counsel." !d. (citing McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001)). Rather it allows the court to sanction attorneys "who willfully abuse the judicial process by conduct tantamount to bad faith." Schwartz v. Million Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003).8 To warrant sanctions under Section 1927, "an attorney's conduct must be particularly egregious ... the attorney must knowingly or recklessly pursue a frivolous claim or needlessly obstruct the litigation of a non-frivolous claim." Amlong & Amlong, P.A., 500 F.3d at 1241-42. The inquiry focuses "primarily on the conduct and motive of a party, rather than on the validity of the case." Footman v. Cheung, 341 F.Supp.2d 1218, 1222 (M.D. Fla. 2004) (emphasis added). Furthermore, since an attorney's bad faith conduct must multiply the proceedings to be sanctionable, Section 1927 on its face "only applies to unnecessary filings after the lawsuit has begun." Macort v. Prem, Inc., 208 Fed. App'x 781, 786 (11th Cir. 2006) (emphasis added). "The filing of a complaint may be sanctioned pursuant to Rule II or a court's inherent power, but it 8 See also Roadway Express v. Piper, 447 U.S. 752, 762, 100 S.Ct. 2455, 2462 (1979) (Section 1927 is concerned "only with limiting the abuse of court processes"); Jerelds v. The City of Orlando, 194 F. Supp. 2d 1305, 1312 (M.D. Fla. 2002) ("the power to impose sanctions under§ 1927 should be exercised 'only in instances of a serious and studied disregard for the orderly processes of justice'") (quoting Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968)). 13 RAS00000376 may not be sanctioned pursuant to § 1927." Id (quoting In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996)) (emphasis added). See also Peterson, 124 F.3d at 1396 (lith Cir. 1997) (holding that to satisfy the multiplication-of-proceedings element, the attorney must have engaged in conduct that leads to proceedings that would not have otherwise been conducted). In smn, Section 1927 does not permit sanctions for the initial filing of a complaint, as O'Hare alleges. O'Hare does not assert that any counsel for the Town unreasonably multiplied the proceedings, nor could he. The district and appellate court records reflect that the case was litigated in the normal course, with timely motions to dismiss and appellate briefing and no extraneous motion practice by the Town. Certainly there is no allegation of any conduct by Attorney O'Connor that unnecessarily multiplied the appellate proceedings and the appellate court expressly rejected sanctions for a frivolous appeal. The Motion must be denied. B. No Grounds Exist for Inherent Power Sanctions For a court to impose sanctions under its inherent powers, a Court must make a finding, based on competent evidence, that the allegedly sanctionable conduct occurred and was done in "bad faith." See Roadway Express, 447 U.S. at 767 (noting that "[a] specific finding as to whether counsel's conduct in this case constituted or was tantamount to bad faith ... would have to precede any action under the court's inherent powers"); Barnes v. Dalton, 158 F.3d 1212, 1214 (11 111 Cir. 1998) ("The key to unlocking a court's inherent power is a finding of bad faith."). The Supreme Court has stated that "[b ]ecause of their very potency, inherent powers must be exercised with restraint and discretion." Chambers, 501 U.S. at 44. Sanctioning an attorney "act[s] as a symbolic statement about the quality and integrity of an attorney's work-a statement which may have a tangible effect upon the attorneys' career." Adams v. Ford Motor Co., 653 F.3d 299, 309 (3d Cir. 2011). Accordingly, "[i]nvocation of [the] sanctioning power is 14 RAS00000377 the exception rather than rule." Conner v. Travis Cnty., 209 F.3d 794, 799 (5th Cir. 2000). The "threshold finding required to justify sanctions under the inherent powers doctrine is extremely high. The court must find that the very temple of justice has been defiled by the sanctioned party's conduct." US. v. Seltzer, 227 F.3d 36, 41 n.2 (2d Cir. 2000) (internal quotations and citation omitted). Further, because "the threshold of bad faith conduct for purposes of sanctions under the court's inherent powers is at least as high as the threshold of bad faith conduct for sanctions under § 1927," "sanctions that are impermissible under§ 1927 are also impermissible under a district court's inherent powers." Amlong & Amlong, P.A., 500 F.3d at 1252 .. This is not a case where the court's inherent power to sanction is necessary to fill a gap left by the rules or statutes. As set forth in Section I( C) infra, Rule 11 would have been up to the task of addressing any argument that the Complaint's factual contentions against O'Hare lacked evidentiary support when made. O'Hare's decision to forego that procedural rule at a time when he had available to him all of the purported "evidence" on which he now relies is fatal. The prosecution of a non-frivolous appeal cannot give rise to liability absent proof of independent bad faith, which is wholly absent here. Sanctions are not proper under Section 1927 or the Court's inherent authority. The Motion must be denied CONCLUSION O'Hare's motion for sanctions under 28 U.S. C. § 1927 and the Court's inherent power is baseless and frivolous. In representing the Town on appeal, Attorney O'Connor in no way unreasonably and vexatiously multiplied the proceedings through conduct tantamount to bad faith, but at all times acted as a highly professional and reasonable advocate for her client. O'Hare's Motion should be denied and Plaintiffs and their counsel should be awarded the fees and costs incurred in responding to it. 15 RAS00000378 Respectfully submitted, JONES FOSTER JOHNSTON &STUBBS,PA Attorney for Appellant, Town of Gulf Stream 505 South Flagler Drive Suite llOO West Palm Beach, FL 33401 Telephone: 561-659-3000 Facsimile: 561-650-5300 Email: joconnor@jonesfoster.com By -:-:J-::cO--cA-::-N=-N=E::-cM:-::-. -=o-:-, c=-o-=-N::-c::-cN:-::0-::R:----- FLORIDA BAR NO: 498807 16 RAS00000379 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August _, 2016, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF, I also certify that the foregoing document is being served on this day to all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of a Notice of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. JOANNE M. O'CONNOR FLORIDA BAR NO: 498807 17 RAS00000380 SERVICE LIST Gerald F. Richman, Esquire grichman@richmangreer.com Florida Bar No: 066457 Leora B. Freire, Esquire lfreire@richmangreer.com Florida Bar No: 013488 RICHMAN GREER, P.A. 250 Australian Ave., South, Suite 1504 West Palm Beach, FL 33401 561-803-3500 Attorneys for Plaintiff, Town ofGulfStream and Wantman Group, Inc. Eric M. Sodhi, Esquire esodhi@richmangreer.com Florida Bar No: 0583871 RICHMAN GREER, P.A. 396 Alhambra Circle, North Tower, 14th Floor Miami, FL 33134 305-373-4099 Attorney for Plaintiff, Town ofGu!fStream and Wantman Group, Inc. Joanne M. O'Connor, Esquire joconnor@jonesfoster.com JONES FOSTER JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, FL 33401 561-659-3000 Attorney for Plaintiff, Town ofGulfStream Adam T. Rabin, Esquire arabin@mccaberabin.com Robert Glass, Esquire rglass@mccaberabin.com MCCABE RABIN, P.A. 1601 Forum Place, Suite 505 West Palm Beach, FL 33401 561-659-7878 Attorney for William Ring, Jonathan 0 'Boyle and The 0 'Boyle Law Firm, P. C., Inc. Daniel DeSouza, Esquire ddesouza@desouzalaw.com DESOUZA LAW, P.A. 18 RAS00000381 101 NE Third Avenue, Suite 1500 Fort Lauderdale, FL 33301 954-603-1340 Attorney for Denise DeMartini, Citizens Awareness Foundation, Inc., Our Public Records, LLC, StopDirtyGovernment, LLC and Public Awareness Institute, Inc. Mitchell W. Berger, Esquire mberger@bergersingerman.com Steven Weber, Esquire sweber@bergersingerman.com BERGER SINGERMAN, LLP 350 East Las Olas Blvd., Suite 1000 Fort Lauderdale, FL 33301 954-525-9900 Attorney for Martin E 0 'Boyle, Airline Highway, LLC, Commerce GP, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Asset Enhancement, Inc., Commerce Realty Group, Inc., and Commerce Group, Inc. Etan Mark, Esquire emark@bergersingerman.com BERGER SINGERMAN, LLP 1450 Brickell Avenue, Suite 1900 Miami, FL 3 3131 305-755-9500 Attorney for Martin E 0 'Boyle, Airline Highway, LLC, Commerce GP, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Asset Enhancement, Inc., Commerce Realty Group, Inc., and Commerce Group, Inc. Stuart R. Michelson, Esquire smichelson@smichelsonlaw.com LAW OFFICE OF STUART R. MICHELSON 800 S.E. Third Avenue, 4th Floor Fort Lauderdale, FL 33316 954-463-6100 Attorney for Appellees, Giovani Mesa, Nicklaus Taylor, Ryan Witmer, Jonathan R. 0 'Boyle, William Ring and The 0 'Boyle Law Firm, P.C., Inc. Louis Roeder, Esquire lou@louroeder.com 7414 Sparkling Lake Road 19 RAS00000382 Orlando, FL 32819 407-758-4194 Attorney for Christopher 0 'Hare p:\docs\13147\00086\p1d\1n56068.docx 20 RAS00000383 Re: Filing of RICO action this week· Robert Sweetapple https ://ms II -eden.e2engine.net/ owa!#viewmodel ~ReadMessageltem& ... I of2 Re: Filing of RICO action this week Robert Sweetapple <rsweetapple@sweetapplelaw.com> Mon 2/9/2015 5:14 PM To:Eric M. Sodhi <ESodhi@richmangreer.com>; Cc:Robert Sweetapple <rsweetapple@sweetapplelaw.com>; scottmorgan75@gmail.com <scottmorgan75@gmail.com>; Gerald F. Richman <GRichman@richmangreer.com>; Joanne O'Connor <joconnor@jonesfoster.com>; Thanks Regards, Bob Sweetapple On Feb 9, 2015, at 3:18PM, Eric M. Sodhi <ESodbj@rjchmangreercom> wrote: You have it-1 am waiting on some information to work into the next version but will have it done by Wed. morning so that we can meet a Thursday filing deadline. From: Robert Sweetapple [mailto:rsweetapple@sweetapplelaw.com] Sent: Monday, February 09, 2015 2:51 PM To: Eric M. Sodhi Cc: scottmorgan75@gmail.com; Gerald F. Richman; Robert Sweetapple; Joanne O'Connor Subject: Re: Filing of RICO action this week Eric Please email me the latest draft. Regards, Bob Sweetapple On Feb 9, 2015, at 10:56 AM, Eric M. Sodhi <ESodhi@richmangreer.com> wrote: Yes. Joanne, are you available for a short call around 11:30 re. filing? Please let me know. Thanks. ------------------------~----·--.. ------- <imageb0538d.GIF> Eric M. Sodhi I Shareholder Richman Greer P.A. 396 Alhambra Circle North Tower, 14 Floor Miami, Florida 3 3134 Office: 305.373.4000 Fax: 305.373.4099 5/19/2016 1:35PM RAS00000384 Re: Filing of RICO action this week-Robert Sweetapple https :/ /ms 11-eden.e2engine.net/ owa/#viewmodel~ReadMess age Item& ... 2 of2 Direct: 305.373.4018 Email: ESodhi@richmangreer.com V-card www.RichmanGreer.com U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message .. From: scottmorgan75@gmail.com [mailto:scottmorgan75@qmail.com] Sent: Monday, February 09, 2.015 10:43 AM To: Eric M. Sodhi; Gerald F. Richman; Robert Sweetapple; Joanne O'Connor Subject: Filing of RICO action this week Good morning Eric, Our next Gulf Stream Commission Meeting is this Friday. I would like to have the RICO action filed before then, as I want to be in a position to announce the RICO filing to the public and then to seek authority from the Commissioners to file a Complaint against CAFI next week with the Florida Office of Attorney General. Would you please confirm when the action gets filed? Scott W. Morgan (561) 752-1936 5/19/2016 1:35PM RAS00000385 RE: Gulf Stream legal action-Robert Sweetapple https :/ /ms !!-eden. e2engine.net/ ow a/#viewmodel ~ReadMessageltem& ... 1 of 1 RE: Gulf Stream legal action OConnor, Joanne M. <JOConnor@jonesfoster.com> Mon 10/27/2014 9:34AM To:Scott lv1organ <scottmorgan75@gmail.com>; grichman@richmangreer.com <grichman@richmangreer.com>; Robert Sweetapple < rsweetapple@sweetapplelaw.com >; 1 attachment 1KN9345-notice appearance. PDF; Fyi, notice of appearance by Mitch Berger and Steven Weber with Berger Singerman in our most active case before Judge Blanc brought by Marty O'Boyle. JONES FOSTER L---~'''"-.....-~~··-"··· f{j1'L'""H'N J';;:\.1 j •IUL~, f'.A, Joanne M. O'Connor Attorney Direct Dial: 561.650.0498 I Fax: 561.650.5300 I joconnor@jonesfoster.com Jones, Foster, Johnston & Stubbs, PA. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561-659-3000 I www.jonesfoster.com Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, auy review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original 1nessage. From: Scott Morgan [mailto:scottmorgan75@gmail.com] Sent: Saturday, October 25, 2014 12:08 PM To: grichman@richmangreer.com; OConnor, Joanne M.; rsweetapple@sweetapplelaw.com Subject: Gulf Stream legal action If the three of you are available on Tuesday or Wednesday, I think we should meet to discuss everyone's thoughts on the type of actions to be filed against O'Boyle and O'Hare. There are arguments to be made for federal vs. state court RICO as well as for a separate conspiracy to abuse process action. I would like to have a consensus on moving forward. Let me know if Tues or Wed works for you. Scott 5/19/2016 1:32PM RAS00000386 Re: 0'1-Iare/Town of Gulf Stream-Follow-up-Robert Sweetapple https :/ /ms 11-eden.e2engine.net/ ow a/#viewmodel ~ReadMessageltem& ... 1 of3 Re: O'Hare/Town of Gulf Stream -Follow-up Mark Hanna <mhanna@g3mlaw.com> Man 8/18/2014 8:09PM To:Robert Sweetapple < rsweetapple@sweetapplelaw.com >; cc:Mark Hanna <mhanna@g3mlaw.com>; Bob, I shared our discussions last week Chris O'Hare and he wanted me to send you the followin;J which was in response to your August 14, 2014 email to me. Let me know the status of any discussion you have had with Scott and perhaps we can get moving on this. Mark, I respect Mr. Sweetapple and believe he is looking out for his client but I think his client may be misleading him. Given the Town's history of "lip service" I have no reason to believe Mr. Morgan will be a sincere participant in any mediation. Please consider telling Mr. Sweetapple that I am open to mediation with him and Mr. Morgan but my experience discussing these issues with the Town has been frustrating at best. I have met Mr. Randolph and Mayor Orthwein multiple times in the past. They were pleasant and earnest. They asked lots of questions, promised to "look into it" and then NOTHING EVER HAPPENED. I understand Mr. Sweetapple when he writes, "/bel/eve mediation next week could prove productive," but I will only agree to participate in mediation if Mr. Morgan intends the mediation to be productive for me and not just the Town. If Mr. Sweetapple can not obtain assurance from Mr. Morgan that the Mayor has the where-with-all to reach a compromise than I don't see the point in showing up. Chris PS. You have my permission to share this email with anyone if you think that would help move this process along. MARKJ. HANNA 561-723-8284 mhanna@g3mlaw.com GMMIMADISONPA 401 South County Road #3272 Palm Beach, FL 33480-9991 Tel: 561-223-9990 NOTICE: This email is intended to be read or used by the person or entity to whom it is addressed. It is confidential and may contain attorney/client, work product or other legally privileged information. These privileges are not waived or lost by any mistaken or unintended disclosure. If you are not the person or entity that was supposed to receive this email (or the person responsible for delivery of this message/information to the intended person/entity), you cannot copy this message/information nor share this message/information with anyone else. There are potential criminal and/or civil penalties applicable to accessing or disclosing this message/information in certain situations. If you are not the intended recipient, you should delete the email or 5/23/2016 11:50 AM RAS00000387 Re: O'Hare/Town of Gulf Stream-Follow-up-Robert Sweetapple https ://ms ll-eden.e2engine.net/ owa/#viewmodel =ReadMessageltem& ... 2 of3 otherwise destroy this message. Please notify the sender that we have sent or are sending emails to the wrong person or entity so that you do not continue to receive messages. You can simply hit reply and say "Hey stupid this is not for me-so get your act together" or something to that effect. In accordance with Internal Revenue Service ("IRS") rules, any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, are not intended be used nor are they written to be used and they cannot be used by any person or entity to(1) avoid any tax penalties that may be imposed by the IRS or any other Federal, state, or local taxing authority or agency or (2) to promote, market or recommend this type of conduct to another. You should talk to a qualified tax advisor (such as a certified public accountant/CPA, regular accountant, H&R Block or tax lawyer) if you have any tax questions about this because we do not know enough about tax law to provide any advice. (rev'd 9/13) On Aug 14, 2014, at 1:28 PM, Robert Sweetapple wrote: Our discussions are confidential so I will not confirm, deny or argue about your characterizations. That being said I believe mediation next week could prove product·ve and would like to get Scott and Chris together. Regards, Bob Sweetapple On Aug 14, 2014, at 1:05PM, "Mark Hanna" <mhanna©g3mlaw.com> wrote: Bob, Thanks for meet'rng Tuesday. I briefly d'rscussed the details of our conversation with Chris and, as I expected, he is always open to mediation. He is, however, concerned a boLt it being a one-sided affair because you will not have authorization make any deals. When Joanne and I met July 24th, you said that Scott wanted a dismissal for not involving Chris in the forthcoming Civil RICO/Abuse of Process action against Marty O'Boyle and others. I told Chris yesterday about the possibility of some compensation, but again, that you needed to get some additional direction from Scott when he gets back from his trip. Let me know after you speak with Scott to make sure the Town is still amenable and I will start scheduling mediation MARKJ. HANNA 561-723-8284 mhanna@g3mlaw.com GMMIMADISONPA 401 South County Road #3272 Palm Beach, FL 33480-9991 Tel: 561-223-9990 NOTICE: This email is intended to be read or used by the person or entity to whom it is addressed. It is confidential and may contain attorney/client, work product or other legally privileged 5/23/2016 11:50 AM RAS00000388 Re: O'Hare/Town of Gulf Stream-Follow-up-Robert Sweetapple bttps ://ms ll-eden.e2engine.net/ owa/#viewmodei~ReadlY!essageltem& ... 3 of3 information. These privileges are not waived or lost by any mistaken or unintended disclosure. If you are not the person or entity that was supposed to receive this email (or the person responsible for delivery of this message/information to the intended person/entity), you cannot copy this message/information nor share this message/information with anyone else. There are potential criminal and/or civil penalties applicable to accessing or disclosing this message/information in certain situations. If you are not the intended recipient, you should delete the email or otherwise destroy this message. Please notify the sender that we have sent or are sending emails to the wrong person or entity so that you do not continue to receive messages. You can simply hit reply and say "Hey stupid this is not for me -so get your act together" or something to that effect. In accordance with Internal Revenue Service ("IRS") rules, any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, are not intended be used nor are they written to be used and they cannot be used by any person or entity to(l) avoid any tax penalties that may be imposed by the IRS or any other Federal, state, or local taxing authority or agency or (2) to promote, market or recommend this type of conduct to another. You should talk to a qualified tax advisor (such as a certified public accountant/CPA, regular accountant, H&R Block or tax lawyer) if you have any tax questions about this because we do not know enough about tax law to provide any advice. (rev'd 9/13) 5/23/2016 11:50 AM RAS00000389 RE: O'Hare/ Gulf Stream-Meeting-Robert Sweetapple https :1 /ms ll-eden.e2engine.net/ owa/#viewmodel ~ReadMessageltem& ... I of4 RE: O'Hare/Gulf Stream -Meeting Cynthia Bailey Man 8/11/2014 4:03 PM To:Robert Sweetapple < rsweetapple@sweetapplelaw.com >; CYNTHIA J. BAILEY Certified Paralegal I Florida Certified Paralegal I Florida Registered Paralegal Sweetapple, Broeker & Varkas, P.L. 20 SE 3rct Street Boca Raton, FL 33432 (561)392-1230 (~x. 305 (561) 394-6102 (!) CBailey@sweetapplelaw.com www.sweetarm.~broek~r~_com, Our address has changed. Please u.pdate your files to indicate our new address. Thank you. STATEMENT OF CONFIDENTIALITY The information in this e-mail is confidential and may be legally privileged. If you are not the named addressee, or if this message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate, maintain, save or otherwise use this email. Please contact the sender at the above number immediately. Delivery of this message to any person other than the intended recipient(s) is not intended in any way to waive privilege or confidentiality. From: Robert Sweetapple Sent: Monday, August 11, 2014 3:59PM To: Mark Hanna Cc: Cynthia Bailey Subject: Re: O'Hare( Gulf Stream-Meeting Perfect. 20 SE 3rd St Boca. Just me. Afternoon meeting is in WP. Regards, Bob Sweetapple On Aug 11, 2014, at 3:10PM, "Mark Hanna" <MHANNA@G3MLAW.COM> wrote: I can be there at 11 am if that works. I don't mind if Joanne, Skip, Gerry or Scott attend if you 5/23/2016 11:50 AM RAS00000390 RE: O'Har e/GulfStream-Meeting-Rob er t Sweetappl e https://ms ll -eden.e2engine.net/owa/#view mod ei =ReadMessageltem& ... 2 of4 want to mo ve t o afternoon. MARK J. HANNA 561-72 3 -8284 mh anna@ g3mlaw .com GMMIMADISON .. 401 South County Road #3272 Pa lm Beach, FL 33480 -9991 Tel : 561-223-9990 NOTICE: This email is intended to be read or u sed by t he per son or entit y to whom it is a ddressed . It is confident ial and may contain attorney/clien t, work produc t or other legally priv ileged inform a ti on. These privileges are not \va ived or lost by any mistaken or unintended disclosure. If you are not t h e person or entity tha l was supposed t o receive this email (or th e person responsibl e for delivery of this m essage/inform a li on to the intended per son/entity), you ca nnot copy this m essage/informat ion n or sh are t his message/information wit h anyone else. T here are poten t ial criminal and/or ci vil penalties applica ble to accessing or disclosing this message/information in ce rta in si tu a lions. If you a r e not the intended r ecipient, you should delete the email or other wise dest r oy this m essage. Please notify t he sender that we have sent or are sending em a ils to the wr ong per son or entit y so that you do not continue to r ece iv e messages. Yo u ca n simply hit r eply a n d say ''H ey stupid this is not for me -so get your acttoget her"or somet hin g to that effect. In accordance with Int ernal Revenue Serv ice ( .. IRS") r ules, any fed era 1 t ax advice con tained in t his written or e lectronic comm unica tion . including a ny a ttachments or enclosures, are not intended be used nor are t hey written to be u sed and they cannot be u sed by any person or entity to(t ) avoid a ny t ax penalties th at may be im posed by the IRS or any other Federal, state, or loca l taxing authori ty or agency or (2 ) to promote, market or recom mend this type of conduct io another . You should talk t o a qualified tax advisor (su ch as a cer tified public accountan t /CPA, regular accou ntant, H&R Block or t ax lawyer) if you have any tax quest ions a bou t t his bcca usc we do not kn ow enough a bout tax law to pr ovide any advice. ("v"d 9/•Jl On Aug 11 ,2014 , at 12:54 PM, Robert Sweet a pp le wrote: I am meeting with Gerry and Jo a nne in the a fternoon tomorrow.lt would be best if we .met before that Can yo u meet at my office in Boca in the AM ? Re gard s, Robert A. Sweetapple On Aug 8, 20 14, at 5:10PM, "Mark Ha nna" <MHANNA@G3 MLAW.COM> wrote : What time do you want to meet? MARK J. HANNA 561-723-8284 mh an na@g 3 m law .co m GMMIMADISON .. 401 South County Road #3272 5/23/2016 11:5 0 AM RAS00000391 RE: O'Hare/GulfStre a m-Me eting-Robert Sweetapple http s:/ /ms ll-eden.e2engine.net/owa/#v iewmodel =ReadMessageltem& ... 3 of4 Pa lm Bea ch, FL 33480-9991 Te l: 561 -223-9990 NOTICE: This email is intended to be read or used by the person or entity to whom it is addressed. It is confiden tial and may con t ain attorney/client , work prod u ct or ot h er legally privileged information. These privileges are not wa ived or lost by any mistaken or unintended di sclosure. If you are not the per son or entity that wa s supposed to receive this email (or t he person r esponsi ble for delivery of this message/information t o t he intended person/entity), you cannot COPY this message/information nor share this m essage/information with anyone else. There are potential cri minal and/or civil penalties applicable to accessing or disclosing this message/information in certain situation s. If you a r e n ot the intended recipient, you sh ould delete th e email or ot h erwise dest r oy this message. Please notify the se nder that we h ave sen t or are sending em ails to the wrong person or entity so th a t you do not continue to receive messages. You can simply hit repl y and say "Hey stupid this is not for m e -so get your act together"or somet hing to that effect. In accordance wit h Internal Revenue Ser vice (•IRS") r ul es, any federal tax advice contained in th is written or elect ronic communication, including any attachm ents or enclosu r es. are not intended be used nor are they wri tten to be used and they cannot be used by any person or entity to( I) avoid any tax penalties that may be imposed by the IRS or any ot h er Federa l, state, or loca l taxing authorit y or agency or (2) to promote, market or recomm end this type of conduct t o anoth er. You shoul d talk to a qua lified tax advisor (suc h a s a ce rt ifi ed public account a nt /CPA , r egular accountant, H&R Block or tax lawyer) if you have any t ax questions about this because we do not know enough about tax law to provide any advice. (rc,·'d9/•3l On Aug 8, 20 14 , at 5 :0 2 PM, Rob ert Sweetapple wrote: Tuesday I am meeting with Gerry Richman to finalize the lawsuit. I could meet late afternoon. Right now Mr. O'Hare i s a name d Defenda nt. Regard s, Bob Sweetapp le On Aug 8, 20 14, at 2:52PM , "Ma rk Hanna" <MHANNA@G3MLAW.COM> wrote: Bob, I got tied up thi s week so I couldn't fo ll ow-up on your c a ll. Are you available next Tuesday or Wednesday to meet. I w ill be in Boca and come came to yo ur office anytime afte r 11 :00 . MARK J . HANNA 5 6 1-723-8284 mhanna@g3 mlaw.com GMMIMADISON .. 401 South County Roa d #3272 Palm Beach, FL 3 3480-9991 Te l: 561-223-9990 5/23/201 6 II :5 0 AM RAS00000392 RE: O'Hare/ Gulf Stream-Meeting -Robert Sweetapple https :/ /ms ll-eden.e2engine.net/ owa/#viewmodel ~ReadMessageltem& ... 4 of4 NOTICE1 This email is intended to be read or used by the person or entity to whom it's addressed. It is confidential and may contain attorney /client, work product or other legally privileged informatim. These privileges are not waived or lost by any mistaken cr unintended disclosure. If you are not the person ot· entity that was supposed to receive this email (ot' the person responsible for delivery of this m essagejinforma lion to the intended person/entity), you cannot copy this message/inform a lion nor share this message/information with anyone else. There are potential criminal and/or civil penalties applicable to accessing or disclosing this message/information in certain situations. If you are not the intended recipient, you should delete the email or otherv.ise destroy this message. Please notify the sender that we have sent or are sending em ails to the wrong person or entity so that you do not continue to receive messages. You can simply hit reply and say "Hey stupid this is not for me -so get your act together" or something to that effect. In accordance with Internal Revenue Service ("IRS") rules, any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, are not intended be used nor are they written to be used and they cannot be used by any per sen or entity to(1) avoid any tax penalties that may be imposed by the IRS or any other Federal, state, or local taxh:g authority or agency or (2) to promote, market or recommeJJd this type of conduct to another. You should talk to a qualified tax advisor (such as a certified public accountan !/CPA, regular accountant, H&R Block or tax lawyer) if you have any tax questions about this because we do not ]mow enough about tax law to provide any advice. (rev'd9/13) 5/23/2016 11:50 AM RAS00000393 O'Hare/ Gulf Stream-Follow-up Meeting-Robert Sweetapple https :/ /ms !!-eden. e2engine.net/ owa/#viewmodel ~ReadMessageltem& ... 1 of! O'Hare/Gulf Stream-Follow-up Meeting Mark Hanna <mhanna@g3mlaw.com> Tue 7/29/20141:36 PM To:Robert Sweetapple <rsweetapple@sweetapplelaw.com>; cc:Mark Hanna <mhanna@g3mlaw.com>; Are you available for a follow-up meeting on Thursday or Friday? MARK J. HANNA 561-723-8284 mhanna@g3mlaw com GMM[MADISONPA 401 South County Road #3272 Palm Beach, FL 33480-9991 Tel: 561-223-9990 NOTICE: This email is intended to be read or used by the person or entity to whom it is addressed. It is confidential and may contain attorney/client, work product or other legally privileged information. These privileges are not waived or lost by any mistaken or unintended disclosure. If you are not the person or entity that was supposed to receive this email (or the person responsible for delivery of this message/information to the intended person/entity), you cannot copy this message/information nor share this message/information with anyone else. There are potential criminal and/or civil penalties applicable to accessing or disclosing this message/information in cer:ain situations. If you are not the intended recipient, you should delete the email or otherwise destroy this message. Please notify the sender that we have sent or are sending emails to the wrong person or entity so that you do not continue to receive messages. You can simply hit reply and say "Hey stupid this is not for me-so get your act together" or something to that effect. In accordance with Internal Revenue Service ("IRS") rules, any federal tax advice contained in this wr'1tten or electronic communication, including any attachments or enclosures, are not intended be used nor are they written to be used and they cannot be used by any person or entity to(1) avoid any tax penalties that may be imposed by the IRS or any other Federal, state, or local taxing authority or agency or (2) to promote, market or recommend :his type of conduct to another. You should talk to a qualified tax advisor (such as a certified public accountant/CPA, regular accountant, H&R Block or tax lawyer) if you have any tax questions about this because we do not know enough about tax law to provide any advice. (rev'd 9/13) 5/23/2016 11:51 AM RAS00000394 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.: ________ _ TOWN OF GULF STREAM, a municipality organized and existing under the l aws of Florida on its own behalf and on behalf of tho se municipalities simi larly situated, and ________ , a domestic company on its own behalf and on behalf of those companies s imilarly situated, Plaintiffs, vs. JRONA THAN R. O'BOYLE, an individual , MARTIN E. O 'BOYLE, and individual , CHRISTOPHER O 'HARE, and individual, WILLIAM RING , an CLASS ACTION individual, J.GJRONATHAN R. O 'BOYLE, an individual , DENIS E 1 RAS00000395 DEMARTINI, and individual , PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS , LLC, STOPDIRTYGOVERNMENT, LLC , and CO MMERCE GROUP, IN C. and THE O 'BOYLE LAW FIRM, P.C., INC., Defendants. __________________________________________ / CLASS ACTION COMPLAINT I. Introduction. 1. The TOWN OF GULF STREAM ("Gulf Stream") brings thi s lawsuit as a class action by and on behalf of municipalities, municipal agencies, and other local and state government entities located in the state of F lorida that have been victimized by a fraudulent scheme being carried outperpetrated by a RICO enterprise created and carried out by the Defendants, and-through their RICO enterprise, the Defendant s have associated with the sole purpos e of unlawfully and illegally extracting settlement payments from the class members by first u sing the mails and the wires to deliver and advance a frivolous public records request that 2 RAS00000396 1s intentionally inconspicuous.-Then, the Defendants, through their RICO enterprise, immediately use the mails and the wires to demand that these municipal entities and agencies immediately settle with it and pay its allegedly incurred attorneys ' fees and costs as provided for in the public records statute or face protracted liti gation and a flurry of additional frivolous public records request.-The amount demanded by the Defendants to reimburse it for its attorneys ' fees and costs is fraudulent-far exceeding the actual costs and fees in curred in the frivolous public records request, resulting in an illegal profit windfall for the Defendants. 2. The Defendants are prolific in their efforts-from March 5, 2013 through July 17 , 2013, they filed over 400 public records request wi th Gulf Stream alone.-From August of 2013 through April of 2014, the RICO enterprise filed at l east another 600 public records request. For purposes of context-Gulf Stream is a small community, having a population of 928 residents and only 16 full time emplo yees w ith a land mass of less than one square mile. 3. The Defendants also target private entities that have contracted with municipalities and are therefore subject to the public records laws of Florida. , brings this lawsuit as a class action on behalf of itself and other private -------- entities that have been victimi zed by Defendants' scheme to defraud. 4. [in sert paragraph on engineering firm] II. Jurisdictional Allegations. 3 RAS00000397 5. As thi s is an action brought under 18 U.S.C. §§ 1961 , 1962 and 1964, thi s Court has original jurisdiction over the subject matter of thi s action pursuant to 28 U.S.C. §§ 13 3 1. Additionally, this Court has original jurisdicti o n over the su bject matter of thi s action pursuant to 18 U .S .C. §§ 1964 (a)-(c). -This Court has supp lemental subject matter jurisdiction over Plaintiffs' state l aw claims und er 28 U.S.C. § 1367(a) because they are so related to the RI CO claims as to form part of the same case and controversy. -Finally, thi s Court has personal jurisdiction over the Defendants pursuant to 18 U.S .C. § 1965. 6. Venue is appropriate in thi s district pursuant to 18 U.S.C. § 1965(a) as well as 28 U.S.C. § 1391(b)(1) and (2), as the Defendants reside in thi s district and a substantial part of the events or omissio ns giving ri se to Plaintiffs' claims occurred in this di strict. III. Parties. 7. Plaintiff, TOWN OF GULF STREAM, i s a municipality organi zed and existing under the laws of the &tate-state of Florida. 8. Plaintiff, Wantman Group, Inc. is a Florida corporation, which maintains its principal place of business in Palm Beach County, Florida. 9. Defendant JGJRONATHAN R. O 'BOYLE ("JRO") is a resident of Florida, residing in Palm Beach County, and is an attorney that is not li censed to practice law in Florida. Notwithstanding thi s fact, JRO; however, is the founding principal of Defendant The O 'Boyle 4 RAS00000398 Law Firm, P.C ., Inc. and cutTently its President, sole director and manager.-JRO is the son of Defendant MO, and is also a director of Defendant Public Awareness Institute, Incorporated . 10. Defendant MARTIN E. O'BOYLE, ("MO") i s a resident of Florida, residing in Palm Beach County. MO i s also: (i) the President and owner of Defendant Commerce Group, Inc.; (ii) the sole member of STOPDIRTYGOVERNMENT, LLC, ("Stopdirtvgovenunent")Defendant Stopdirtygovernment, LLC ; (iii) the sole member of Defendant Our Public Records, LLC ; and (iv) a director o f Defendant Public Awareness Institute, Incorporated. 11. Defendant WILLIAM F. RING ("Ring") is an attorney licensed to practice law in the state of Florida, and upon information and belief, is practicing with, and is a partner or shareholder of, Defendant The O 'Boyle Law Firm, P.C., Inc., as well as its registered agent. Ring is also: (i) Vice-president of Defendant Commerce Group, Inc.; (ii) the founding President of Defendant Citizens Awareness Foundation , Inc., (iii) and the registered agent for Defendants Our Public Records, LLC, and Stopdirtygovemment, LLC. 12 . Defendant CHRISTOPHER O'HARE ("O'Hare") is a resident of Florida, residing in Palm Beach County. O'Hare is also a client of Defendant The O'Boyle Law Firm, P.C., In c .. 13 . Defendant JOJRONATHAN R. O 'BOYLE ("JOJRO") is a resident of Florida, residing in Palm Beach County, and is an attorney that is not licensed to practice law in Florida; hov1ever, is the founding principal of Defendant The O 'Boyle Law Finn, P .C ., Inc. and currently 5 RAS00000399 its President, sole director and manager. JRO is the son of Defendant MO , and is also a director of Defendant Pub lie Awareness Institute, Incorporated . 14. Defendant DENISE DEMARTINI ("DemartiniDeMartini") is a resident of Florida, residing in Palm Beach County. Demartini DeMartini is also; (i) an employee of Defendant Commerce Group, Inc.; and (ii) the current President and director of Defendant Citizens Awareness Foundation, Inc.!. 15. Defendant COMMERCE GROUP , INC. ("Commerce Group") is a Florida Corporation with it~ principal place of business located at 1280 W Newport Center Dr., Deerfield Beach, Florida 33442. Commerce Group is run by MO. 16. Defendant CITIZENS AWARENESS FOUNDATION, INC . ("CAFI"), purports to be a Florida non-profit corporation, with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 17. Defendant STOPDIRTYGOV ERNMEll>H , LLC , ("Stopdirtygovernment?2)-is a Florida limited liability company with its sole member being MO, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 18. Defendant OUR PUBLIC RECORDS , LLC , ("OPR") is a Florida limited liability company with its sole member being MO, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 19. Defendant PUBLIC AWARENESS INSTITUTE, INCORPORATED ("PAl") 6 RAS00000400 purports to be a Florida non-profit corporation with its principal place ofbusiness located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442.-Defendants MO and JR O, along with their family member Sheila O'Boyle (wife ofMO and mother of JGJRO) are the directors of PAL 20. Defendant, THE O 'BOYLE LAW FIRM, P.C., INC., ("O'Boyle Firm"), is a foreign corporation, a law firm , having its principal address located at 1001 Broad Street, Johnstown, Pennsylvania. Defendant JGJRO is the sole officer and director of the O 'Boyle Firm, but, is not licensed to practice law in the state of Florida. IV. Appropriateness of Class Action Treatment. 21. Plaintiffs bring thi s action on behalf of themselves and all others similarly situated pursuant to Fed. R. Civ. P. 23(b)(3). This action satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of Rule 23. 22. T he proposed Class is defined as: All municipalities, municipal agencies, or private contractors in the State of Florida who have been served with a public records request by any of the Defendants and which paid a settlement amount in conjunction with, or to resolve, the public records request [need to discuss] or which incurred attorneys' fees and costs to reso lve public r ecord s requests from any of the defendants. 23. Excluded from the Class are the Defendants, their parents, subsidiaries, affi liates, officers and directors, any entity in which any of the Defendants ha s a controlling int erest, all 7 RAS00000401 municipalities, municipal agencies, or private municipal contractors, who make a timely selection to be excluded, all judges assigned to hear any aspect of this litigation, as well as their immediate family members, and any of the foregoing's legal heirs and assigns. 24. Plaintiffs reserve the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 25. Plaintiffs do not currently know the exact number of Class Members or their identities. However, Plaintiffs believe that Class Members number in the hundreds, and are thus sufficiently numerous and geographically dispersed so that joinder of all Class Members is impracticable. -Attached hereto as part of Exhibit "A" is a chart listing the current known potential class members. -Plaintiffs further believe that each Class Member, including themselves, have-has claims with a common origin and share a common basis.-The claims of all Class Members, as well as the Plaintiffs, originate from the Defendants' pattern of racketeering and use of an enterprise to carry out such conduct. 26. The claims of the Plaintiffs are typical of the Class, in that Plaintiffs, like all Class Members, were injured in their business or property by reason of the Defendants' pattern of racketeering activity carried out by the RICO Enterprise, including the predicate acts of mail and wire fraud.-When the RICO Enterprise created by the Defendants used the mail and the wires to: (i) send out an inconspicuous and frivolous public records request to the Class Members; (ii) then used the mail and the wires to demand a settlement of the records request in excess of the actual attorneys' fees and costs incurred by the Defendants, the Class Members, all of whom were injured in having to pay or defend against exorbitant and fraudulent settlement amounts, or risk being bombarded with additional frivolous public records requests and more fraudulent settlement demands. 8 RAS00000402 27. Pursuant to Rul e 23(b)(3), there are numerous question s of law and fact common to the Class and those common questions predominate over any questions affecting only individual Class Members, including whether Defendants: a. are-Are associated, organized and acting as an enterprise with th e purpose of carrying out a scheme to defraud; b. devisedDevi s ed , followed, and actively pursued a scheme to defraud and what the scheme to defraud consisted of, including; i. manipulation Manipu lation of the public records laws of Florida for financial gain, including the filing of frivolous, meaningless, and inconspicuous public records request with no real need or intention to ever review or obtain the public records, but rather, simply set the stage for the next step in the fraudulent scheme; 11. advance Ad v ance fraudulent and inflated settlement demands as a matter of practice, policy, and pattern, which include a substantial profit margin for the so-ca lled "non-profits;" m . as A s a matter of practice, policy, and pattern, extort compliance with the fraudulent and inflated settlement demands by threatening scores of additional frivolous public records requests to be followed by scores of additional fraudulent and inflated settlem ent demands; 9 RAS00000403 IV . set Set up false and fraudulent companies, both non-profit and profit, in furtherance of the scheme to defraud, and using the mails and wires to incorporate, indoctrinate, or otherwise create these bogus companies in the State-state of Florida; c. have Have engaged in conduct that constitutes a pattern of racketeering activity in furtherance of their scheme to defraud ; d. eommitted Committed the predicate criminal acts of mail and wire fraud in furth erance of their scheme to defraud; e. [add state law claims] 28. Additiona ll y, another common question of law and fact is the appropriate mea sure of damages sustained by Plaintiffs and other Class Members. 29. A class action is superior to other methods for the fair and efficient adjudication of this controversy. -Treatment as a class action will permit a large number of simi larly situated persons to adjudicate their common claims in a single forum simultaneously, effectively, and without the duplication of effort and expense, and ri sk of inconsistent rulings that numerou s individual action s wou ld cause .-C lass treatment will also permit the adjudication of relatively sma ll claims by C lass Members who otherwise might not be able to afford to litigate their claims individually. -This class action present s no difficulties in management that would preclude maintenance as a class action. 30. Thi s forum is particularly desirable for the prosecution of this class action beca use Defendants all are res idents in , or maintain a principal place of business in , this district,-and presumably 10 RAS00000404 maintain many of those corporate records which are particularly germane to this action here.-As a result of the foregoing, litigating on a class action basis in this forum will likely decrease the cost of discovery and prosecution, generally. 31. Plaintiffs have suffered the harm alleged on behalf of the Class, and have no interests antagonistic to the interests of any other Class Members. -They are committed to the prosecution of this action and have retained counsel experienced in the prosecution of class actions, and in complex commercial actions in particular. -Accordingly, Plaintiffs are adequate representatives and will fairly and adequately protect the interests of the Class.-Plaintiffs are not aware of any other pending litigation concerning this controversy that involves Class Members, other than the individual cases brought by Defendants to enforce the frivolous and fraudulent public records requests. 32. Finally, the Class is readily definable. V. General Allegations. a. Florida Public Records Law 33. Pursuant to Chapter 119, Florida Statutes, commonly referred to as the Sunshine law, the Florida legislature has determined that: "It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person.-Providing 11 RAS00000405 access to public records is a duty of each agency." 34. Florida prides itself on the transparency required of its elected officials, and its elected officials often pride themselves on providing such transparency to those that-who have elected them to serve. 35. Accordingly, pursuant to section 119.07, all qualifying entities : "shall permit the record(s) to be inspected and copied by an person desiring to do so , at any reasonable time, under reasonable conditions .... "-In furtherance ofthis transparency , "a custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. -A good:-faith response includes making reasonable efforts to determine from other officers or employees whether such a record exists and, if so, the location at which the record can be accessed ." 36. Chapter 119 also extends the transparency requirement, as well as obligation to re spond to public records request, to a "contractor," defined as "an individual , partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency .... " S ee section .§_119.0701. 3 7. In addition to criminal penalties, public officers (or "contractors") are subject to prevailing party attorneys ' fees in civil court upon a showing of "unlawful refus[al] to permit a public record to be inspected or copied ... " 38 . It is this threat of prevailing party attorneys ' fees that is the nucleus around which 12 RAS00000406 the Defendants created their scheme to defraud and organized their RICO enterprise to carry out that scheme. a. The Scheme to Defraud Originates. 39. Before and during January 2014, Martin O'Boyle and his son, Jonathan O 'Boyle, met for the purposes of developing a scheme to defraud whereby they would form one or more contrived not-for-profit corporations. The purpose of the not-for-profit corporations would be to file thousands of public records request with municipalities, government entities and state contractors throughout the State of Florida. Of course, MO and JGJRO could care less about the documents that were or would be requested-these documents were probably never read but rather simply tossed into the garbage.-What MO and JGJRO were really interested in was trying to cause the recipient of the public records request to overlook the request and then slap the recipient with a lawsuit or pre-suit settlement demand for an amount far in excess of their costs and fees and from which they would pocket a generous profit. 40. Prior to tffisdeveloping this fraudulent scheme, MO already had an extensive history filing public requests in New Jersey, Florida and elsewhere. MO previously us ed the public record s request process in abusive fashion to file thousands of requests and to file vexatious and frivolous lawsuits in order to cripple local governments into granting his development plans and other demands. 41. In the case of Martin E . 0 'Boyle v. Peter I sen, 2014 WL 3401 04 13 RAS00000407 (N.J.Super.A.D.), issued by the Superior Court of New Jersey, Appellate Division, on appeal from case no. L-2341-08 is attached hereto as Exhibit "1". The Court noted, From September 2007 through early July 2008, plaintiff and members of his family filed multiple requests pursuant to the Open Public Records Act (OPRA), N.J.S .A. 47:1A-1 to -13. Longport's only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, the clerk went to the emergency room because of the stress she attributed to the flood of OPRA requests. And, in February 2008, the Borough 's solicitor notified plaintiff that it would not accept any additional OPRA requests he filed, explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Longport had received 190 requests on October 16 and 17 and thirty filed October 31, 2007. In the !sen case, MO sued a resident of Longport for claiming MO was "the enemy of Longport.:.''-:-The suit for defamation was dismissed by summary judgment and affirmed by the appellate court. 42. Similarly, when hi s daughter was being prosecuted for driving under the influence m Palm Beach County, Florida, Martin O 'Boyle inundated the Palm Beach County State Attorney's Office both individually and through companies he controls with over 1,300 requests for public records . (Attached hereto as Exhibit "2"). 43. However, in January of 2014 , both MO and .J.GJRO reali z ed that they could use the Sunshine Act, not just to frustrate the workings of city governments, but also to generate an ill-gained profit for themselves .-Thus, no longer was MO's purpose to torment local governments, bullying them into caving to his demands , but now. Instead , the purpose was to make mon ey . 14 RAS00000408 44. Accordingly, and despite the fact that J.GJRO was not a Florida lawyer, he opened and ran the O'Boyle Law Firm, as a foreign profit corporation on February 10, 2014 . This law firm was opened and operated from his father 's corporate offices of the Commerce Group Inc., (hereinafter refened to as "Commerce Group ") located in Deerfield Beach Florida. Both MO and Commerce Group financed all activities of the O'Boyle Firm. 45. Now that they had the law firm in place, MO, J.GJRO , and the O 'Boyle firm required "clients" -pre-textual plaintiffs that they could use in sending out frivolous and fraudulent public records requests and accompanying lawsuits.-Accordingly, MO and J.GJRO decided to form several not-for-profit entities as a front to make public records requests and create litigation for the O'Boyle Law Firm which then could be used to defraud defendants into paying inflated settlement amounts and line their pockets with the proceeds therefrom. 46. But, MO and J.GJRO knew that they could not, on its face , own and control the non-profit they now intended to create .. as well as the law firm to which all of the so-called "clients" would be referred.-So, to further wrap their scheme to defraud in a shroud of legitimacy, they needed someone who is-was familiar with government transparency-someone that truly believes believ ed in the cause, and is not in it for the money. They found that someone in Joel Chandler. I 47. In January 2014 Martin O 'Boyle and Jonathan O 'Boyle contacted Joel Chandler (hereinafter refened to as "Chandler"). At the time Chandler had been working as a self- employed civil rights and public information activist. Chandler had considerable experience in 15 RAS00000409 making public records requests and in publi c record s reque st litigation throughout the State-state of Florida,_ and had garnered an excell ent reputation as being a legitimate government transparency advocate. Chandler was invited to the O 'Boyle home in Gulf Stream , Florid a, where both Martin and Jonathan O 'Boyle resided. At the initial meetings~ Chandler and the O 'Boyles discus sed the soon to be created Florida O 'Boyle Law Firm 's capacity for handling public records request litigation throughout the state. 48. As a result of the meetings, Martin O'Boyle incorporated an alleged not-for-profit entity by the name of Citi zen s Awareness Foundation, Inc., (hereinafter referred to as "CAFI"). Now, MO was funding not only the O 'Boyle Law Firm, but also a feeder organiz ation-CAP!. 49. Martin O'Boyle then provided actual cash to CAFI and the O 'Boyle Law Firm as well as other consideration such as free rent , use of employees , and vehicles. To do this , -Martin O 'Boyle used both his own personal assets, and the assets ofhis business, Commerce Group. 50. Martin O'Boyle caused the entity, CAFI, to be incorporated in Florida and directed that his three close business associates, William Ring, Denise DeMartini, and Brenda Russell ~ be named as the board of directors. 51. Martin O 'Boyle also agreed with Chandler that he would hire Chand ler to serve as the Executive Director of CAFI.-As an unwitting participant, Chandler was excited to now be able to advance his cause ,-~overnment transparency. Chandler's actual duty was to travel the state making hundred s of public records request s to public entities and state contractors. 16 RAS00000410 Thereafter, any evidence that would serve as a pretext for a lawsuit was to be forwarded immediately to Jonathan O 'Boyle for the filing of litigation. Both CAFI and the O 'Boyle Law Firm were operating from a room located in Martin O 'Boyle's Commerce Group offices. 52. Prior to meeting the O 'Boyle.:.s, Chand ler had earned approximately $5,000.00 during the year 2013. Upon opening the alleged foundation, Martin O 'Boyle agreed to pay Chandler $120 ,000.00 per year and to provide him with a car to drive around the state to make public records requests. Martin O 'Boyle advised Chandler that he would entirely fund the foundation and law firm on an unlimited basis including the payment of all court filing fees.-Of course, unbeknownst to Chandler, both MO and J.QJRO were also going to require that all of CAFI's clients be represented by the O'Boyle Law Firm , that Chandler would not have exclusive contro l over whether a claim is settled and for how much, and that through the O 'Boyle Law Firm and CAFI, MO and J.QJRO intended to obtain fraudulent settlements from unwitting defendants by claiming their fee s and costs are an amount far in excess of what they actually were . 53. On January 27, 2014 , Chand ler was hired to act as Executive Director and CAFI was incorporated. No board meetings were called or occurred. Instead, Martin O 'Boyle undertook to direct the foundation , through his operatives that he placed on the board. Martin O 'Boyle threatened to stop the flow of money when his orders were not followed by CAFI. 54. A s instructed, Chandler began creating public record s requests and legal claims and referred these to the alleged O 'Boyle law firm . By February 24 , 2014 the flow of litigation 17 RAS00000411 caused Chandler to expresses concern that the O 'Boyle Law Firm was not adequately prepared for upcoming hearings. 55. In March 2014, Chandler suggested that one lawsuit, CAFI v. Barnes & Noble College Bookstore, be referred to the Thomas & LoCicero law firm in Tampa for filing. Chandler was directed by Martin O 'Boyle's operatives that all public record request lawsuits by the foundation must be referred to the O'Boyle Law Firm for filing. 56. From January to at least July of2014 Jonathan O'Boyle resided permanently at his parents ' home in Gulf Stream, Florida. During that time Jonathan O'Boyle directed the O 'Boyle Law Firm from his father's offices at Commerce Group, including removing attorneys who were handling CAFI cases. At no time did Chandler direct that specific attorneys be removed from CAFI cases or authorize such personnel change. These decisions were made and directed by Jonathan O'Boyle, even though he was not licensed to practice law in the state of Florida. a. Chandler Realizes He is Being Duped: 57 . At the end of March and in early April 2014, Chandler learned that William Ring and Martin O'Boyle were making unauthorized public records requests directed to the Town Of Gulf Stream , allegedly at the behest of CAFI. 58. In April 2014 Defendant Deni s e DeMartini (hereinafter referred to as "DeMartini") explained to Chandler that she was Martin O'Boyle's key employee and the director 18 RAS00000412 on the board of CAFI, to whom Chandler was to report. DeMartini further exp lained that she would be directing the flo w of litigation to the O 'Boyle Law Firm . DeMartini is not licensed to practice law in the state of Florida. 59 . Also during April , DeMartini advised Chandler that Martin O'Boyle had approved the CAFI mission statement. DeMartini , a non-lawyer, -attended law firm meetings with Chandler and participated in reviews of all client matters, not just CAFI cases . She made personnel decisions for the O 'Boyle Law Firm and managed the alleged law firm 's finances while claiming to be a board member of CAFI. 60 . During April 2014~ DeMartini demanded that Chandler produce a minimum of25 new lawsuits a week for the alleged O 'Boyle law-Law fum-Firm to file. 61. During this time Chandler also learned from an attorney at the O'Boyle Law Firm that Jonathan O'Boyle had been drafting lawsuits and filing them under the attorney's name without the attorney's knowledge or consent. (Attached hereto as Exhibit "5"). Chandler was informed that this was done on more than one occasion and that Jonathan O 'Boyle directed lawyers in the firm on settlement strategies . 62. In May 2014~ DeMartini notified Chandler that she had full access to all of the O'Boyle Law Firm's internal records and client files. She shared all client reports with Chandler, not just reports concerning CAFI. 63. Based upon Chandler's learni ng that public records requests were being filed in 19 RAS00000413 the name of the foundation without his approval, Chandler again directed that all public records requests on behalf of CAFI be made by Chandler and Chandler alone. 64. On May 16, 2014, DeMartini asked Chandler for a recap of the number of cases that were referred by the foundation to the O'Boyle Law Firm during January through May. DeMartini expressed her frustration to Chandler that he has only generated 211 cases in the 12 weeks since CAFI was created. 65. On May 19, 2014 Chandler met with Ring and DeMartini and again demanded that public records requests and lawsuits cease being filed without his knowledge or approval. After consulting with Martin O'Boyle, Ring and DeMartini agreed that this would no longer occur and confirmed that Chandler had the sole authority to make public records requests as well as to commence or to settle public record request lawsuits. Despite this, the O'Boyle Law Firm again filed another lawsuit against the town of Gulf Stream allegedly on behalf of CAFI without Executive Director Chandler's knowledge or approval. 66. During May 2014, Chandler learned that the O'Boyle Law Firm in violation of ____ had no written fee agreements or engagement letters between the O'Boyle Law Firm andCAFL 67. At the end of May 2014, DeMartini repeatedly requested that Chandler prepare verified complaints to be used by the O'Boyle Law Firm in public records request litigation. She specifically requested a template that could be used by the O'Boyle Law Firm. Chandler refused 20 RAS00000414 to comply with this demand and explained that his independent attorney had expressed concern that such action might constitute the unauthori zed practice of law. Despite this , DeMartini continued to attempt to coax Chandler to draft lawsu its for the O 'Boyle Law Firm . 68. By the end of May, DeMartini and Jonathan O'Boyle continued to express their frustration to Chandler. Chandler insisted on reviewing and verifying all lawsuits to be filed by the foundation. DeMartini and O 'Boyle JRO expressed concern that Chandler's review was slowing down the flow oflitigation generated by the firm. 69. By this point it had become abundantly clear to Chand ler that DeMartini, Ring and O 'Boyle JRO were only concerned w ith th e volume of cases that could be generated , and~ of course, the profits that could be had in such cases by way of fraudulent settlement demands, rather than any public service. Chandler's repeated attempts to inform Ring and DeMartini of opportunities to work w ith civil right s groups, public agencies, student groups and journalists on open government issues were completely ignored. 70 . On May 28 20 14 , DeMartini emailed Chandler demanding that more cases be filed. 7 1. On June 2, 2014 William Ring denied Chandler's reque st for authorization to refer cases to other law firms besides the O 'Boyle Law Firm. 72. On June 11 , 2014 Chandler met with his private attorneys concerning what he perceived as serious ethical issues regarding CAFI and the O'Boyle Law Firm. His attorneys 21 RAS00000415 unanimou sly recommended to Chandler that he resign from the alleged foundation. 73. On June 12 , 2014, Chandler met with Barbara Peterson of the Florida First Amendment Foundation to seek her counsel on hi s concerns about the alleged foundation and the O 'Boyle Law Firm. Barbara Peterson advised Chandler to resign and that his resignation should be made publicly. 74. On or about June 16, Chandler learned that Martin O 'Boyle's Commerce Group receptionist Mohler had been directed by Martin O'Boyle to file lawsuits against the Town of Gulf Stream naming CAFI as plaintiff. Mohler also disclosed that she had been u sing the CAFI email address without Chandler's knowledge or consent at the direction of Martin O'Boyle and Commerce Group in order to serve public records requests on behalf of CAFI. 75. In June 2014, it-everything came full circle. Chandler learned that MO, J..QJRO , the O'Boyle Firm , Commerce Group, CAFI, Ring , and DeMartini were operating an enterprise that was engaged in a scheme to defraud not only him, but also the defendants in the hundred s, if not thousands, of public records requests that were made. 76. The scheme involved the firm demanding monetary settlements on behalf of CAFI far beyond the actual attorneys' fees and expenses incurred and contemplated in F.S. § 119.12 and to keep all of the proceeds including the "windfall". 77. Ring, Jonathan O'Boyle and DeMartini requested that Chandler approve the scheme. Thereafter Chandler learned that Ring, DeMartini and Jonathan O 'Boyle actually 22 RAS00000416 represented to otheresthat Chandler had approved the scheme, even though he had vehemently objected to it. (Attached hereto as Exhibit "6"). 78. On June 19 , Ring and DeMartini advised they were resigning from the board of CAFI and that Chandler would become a board member and president. Chandler responded by calling Ring and inquiring "Do I have any say in this?" Ring responded by saying that the decision had been made and that he and DeMartini would be working more closely with the O 'Boyle Law Firmlavl firm .. and that Ring would become a partner in the law firm. 79. At the same time Chandler learned that Mohler was continuing to make public records requests, on behalf of CAFI, at Martin O'Boyle's direction to the town of Gulf Stream. These were made to appear as if they were being made on behalf of the Citizens Awareness Foundation,_ even though Chandler was unaware of the requests and never consented to these being made by CAFI. 80. On June 23, 2014 amended articles were filed on behalf of CAFI with the Florida Secretary of State. These dropped removed Ring and DeMartini as board members. Peter DiLeo, Kathleen Laca and Joel Chandler were listed as new members of the board along with Brenda Russell. Chandler was named as the president. Chandler was never consulted nor did he authorize such change. 81. In late June 2014 Chandler learned that the lav1 firmO 'Boyle Law Firm was still engaging in the "windfall" scheme by demanding and collecting for more in legal fees than was 23 RAS00000417 actually earned in filed cases. (Attached hereto as Exhibit "7"). 82. When Chandler expressed his outrage he was advised that the "windfall" settlements were in accordance with the O'Boyle Law Firm policy. Chandler decided at that time that was "the final straw" and drafted his letter of resignation. 83. On June 27, 2014 Ring advised Chandler not to direct his concerns about the firm's "windfall" scheme to attomeys at the O'Boyle Law Firm, but instead to deal with Ring. 84. On June 30, 2014 Chandler arrived at the Commerce Group/CAFI/O'Boyle Law Firm office and presented his letter of resignation to Ring. Immediately thereafter Martin O'Boyle demanded that Chandler retract his email confirming Jonathan O'Boyle's complicity in the "windfall" scheme. (Attached hereto as Exhibit "8"). Martin O'Boyle threatened Chandler that if he did not retract his email conceming Jonathan O'Boyle's involvement in the "windfall" scheme, Chandler would "force us to respond by making your life very unpleasant", Thereafter Chandler refused to retract the emails and Martin O'Boyle repeated his threats several times. 85. Upon Chandler's resignation, DeMartini continued to seek Chandler's help in accessing data so that more lawsuits could be filed, allegedly on behalf of CAFI. Ring echoed the request seeking assistance from Chandler to locate data to allow additional lawsuits to be filed by the alleged O'Boyle Law Firm. 86. As part of the scheme the O'Boyle Law Firm has now filed hundreds of spurious lawsuits on behalf of the CAFI and other pretextual entities and individuals. These defendants 24 RAS00000418 have become engaged in a massive scheme to generate and collect attorneys' fees from Florida agencies and state contractors beyond any fees actually earned. 87. [insert facts on other defendants] 88. This fraudulent scheme has directly injured the Class members as well as the Plaintiffs. To date, it is believed that the following putative members have been injured in the following amounts: Municpality/Contractor Settlement Paid Date Settlement Paid 89. Based on the foregoing, Plaintiffs and Class Members were induced to pay $ based on Defendants' fraudulent claims for attorneys fees and costs. Asd VI. COUNT !-Violation of 18 U.S.C. § 1964(a) and (c). 90. Plaintiffs' adopt and incorporate by reference paragraphs I through 88 above as though fully set forth herein. 91. Plaintiffs' seek relief under 18 U.S.C. § 1964(a) of RICO to prevent and restrain Defendants from committing future violations of section 1962, including, but not limited to, ordering the Defendants to divest themselves of their interest in the illegal enterprise; impose reasonable restrictions on the future activities or investments of the Defendants to ensure 25 RAS00000419 engagement in a sim ilar endeavor as described herein; and order di sso lution of all corporate defendants. 92. Plaintiffs also seek reliefunder 18 U.S .C . § 1964(c) of RICO , and seek threefo ld the damages sustained by the Plaintiffs and the Class Members, along with costs of this suit, including a rea sonable attorney fee. 93. The Plaintiffs, and each Class Member that Plaintiffs represent are persons within the meaning of 18 U.S.C. § 1964(c) and § 1961(3). 94. 18 U.S.C. § 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in , or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." Through § 1964( c), "any p erson injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States District Court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee .... " Because the Plaintiffs, along with the Class Members were injured in their business or property by Defendants violation of 1962, they are entitled to threefold their damage s, attorneys ' fees and costs. a. The Enterprise. 95. The Defendants, through themselve s and through their employees and agents , formed a union and associ ation-in-fact entrerpriseenterprise that engages in, and the activities of 26 RAS00000420 which affect, interstate commerce. This enterprise ha s as its goal , a scheme to defrau d municipalities, municipal agencies, priv ate contractors of municipalities and anyone else subject to the Sunshine Law , into payi ng inflated and fraudulent settlement amounts so as to increa se profits to the enterprise. 96 . Every Defendant had a rol e or po si tion in the enterprise, all of which worked together towards the common goal of defrauding municipalities, municipal agencies, private contractors of municipalities and anyone else subject to the Sunshine Law. The Defendants' role and its importance to the enterprise, as well as how it advanced the interest of the enterprise is as follows : a. Jonathan O'Boyle. Jonathan O'Boyle is one of the engineers of the enterprise's scheme to defraud , along with his father Martin O'Boyle. To advance the interest of the enterprise, Jonathan O 'Boyle ha s taken the following actions: i. Created, and sustained the O'Boyle Law Firm, a necessary element of the enterprise; 11 . Filed spurious, frivolous, and baseless public records requ est as well as resulting law suits ; 111. Ordered that complaints for public records suits be filed on behalf of plaintiffs, such as Chandler, without knowledge or consent of the Plaintiffs; 27 RAS00000421 1v. Ordered, that as a pattern and practice, a ll public records suits would be settl ed for an amount in excess of the actua l fees and costs incurred to generate a profit for the enterpri se; v . [additional facts] b. Martin O'Boyle: Martin O 'Boyle is one of the engineers of the enterprise 's scheme to defraud, as well as its principal financier through his various business entities.-Martin O'Boyle directs the enterprise, and is responsible for the following actions taken to advance the goal of the enterprise: i. Financing the opening and continued existence of the O'Boyle Law Firm, along with his son, Jonathon O 'Boyle; 11. Financing the opening and continued existence of CAFI; 111. Directing the operations of CAFI through his appointed directors and key employees of his other business entities such as Commerce Group~-:- 1v. Mandating, under threat of no funding, that: 1. CAFI file no less than 25 cases per week; 2. That all cases filed by CAFI be referred to the O 'Boyle law firm ; 28 RAS00000422 3. That all cases be settled for an amount in excess of the fees and costs incurred in the case. v . [additional facts] o. Jeaothoa O'Beyle . Jonathan O 'Boyle is one of the engineers of the enterprise 's scheme to defraud, along with his father Martin O 'Boyle. To advance the interest of the enterprise, Jonathan O 'Boyle has taken the following actions: i. Created , and sustained the O 'Boyle Law Firm , a necessary element of the enterprise; i . Filed spurious, frivolous , and baseless public records request as '.vell as resulting lawsuits ; i. Ordered, that complaints for public records suits be filed on behalf of plaintiffs, such as Chandler, without knowledge or consent of the Plaintiffs; i. Ordered, that as a pattern and practice, all public records suits would be settled for an amount in excess of the actual fees and costs incurred to generate a profit for the enterprise; i . [additional fact s] c . Christopher O 'Hare. [I have no facts on him-more facts] 29 RAS00000423 d. William Ring. e. Denise DeMartini. f. The O'Boyle Law Firm. g. Citizens Awareness Foundation, Inc. h. Commerce Group. i. Public Awareness Institute, Inc. j. Citizens Awareness Foundation, Inc., k. Our Public Records, LLC; I. Stopdirtygovemment, LLC. 97. The members of the enterprise set forth above function in a fashion so as to become a continuing unit which furnishes a vehicle for the commission of the racketeering activity set forth below. The continuity of the enterprises' actions will be repeated in the future if it is allowed to continue. a. Pattern of Racketeering. 98. Pursuant to 18 U.S.C. § 1961(1), "racketeering activity" includes the predicate crimes of mail fraud (18 U.S.C. § 1341) and wire fraud (18 U.S.C. § 1343). Under to 18 U.S.C. 30 RAS00000424 § 1341 , "whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do " and uses the mails or other commercial carrier to do so, commits mail fraud. Similarly, under 18 U.S.C. § 1343 , "Whoever, having devised or intending to devise any scheme or artifice to defraud , or for obtaining money or property by means of false or fraudulent pretenses, representations , or promises, transmits or causes to be transmitted by means of wire ," commits wire fraud. 99. All members of the enterprise have committed at least one predicate act of mail or wire fraud which when combined constitutes a pattern of racketeering undertaken by the enterprise to accomplish the goals of the enterprise. Examp les of predicate acts by each member ofthe enterprise is as follows: a. Jonathan O'Boyle. b. Martin O'Boyle: i. By using the mai l and the wires to incorporate CAFI on , 2014, etc.[ need concrete examples of using the mails and wires to advance the fraudulent scheme-documents attached would be beneficial]. e. Jenathao O'Beyle. d. Christopher O'Hare. [I have no facts on him-more facts] 31 RAS00000425 e. William Ring. f. Denise DeMartini. g. The O'Boyle Law Firm. [this should list a chart of all public records request sent, lawsuits filed, and most importantly, settlement demands made] h. Citizens Awareness Foundation, Inc. i. Commerce Group. j. Public Awareness Institute, Inc. k. Citizens Awareness Foundation, Inc., I. Our Public Records, LLC; m. Stopdirtygovernment, LLC. 100. Each of these actions is a regular way of doing business for the enterprise's members and threaten repetition in the future. b. Reliance. 101. The frivolous and often inconspicuous public records request, as well as the false and fraudulent settlement demands that were sent by the mails and the wires were justifiably relied upon by Plaintiffs and Class Members when they paid the fraudulent and inflated 32 RAS00000426 settlement demands. c. Proximate Cause and Damages. 1 02. The wrongful conduct of the enterprise set forth above, including the acts of mail fraud and wire fraud, have directly harmed the Plaintiffs and the Class Members. The Plaintiffs and the Class members paid inflated and fraudulent settlement demands based on the frivolous and often inconspicuous public records requests made by the enterprise , amounts they would not otherwise have paid. [need to include a chart listing some of these if possible] 103. In addition, when the volume of the frivolous public records request began to increase exponentionallyexponentially as the scheme to defraud progressed, the Plaintiffs and Class Members were forced to incur additional internal costs associated with having to try and respond to the same. [need to include a chart listing some of these if possible] 104. There is no person who has more directly sustained these injuries than the Plaintiffs and Class Members, and the injuries are a direct and intended result of the enterprise's scheme to defraud the Plaintiffs, as well as the mail and wire fraud acts undertaken as part of the scheme to defraud the Plaintiffs and Class Members. 105. Pursuant to 18 U.S.C. § 1964(c), Counter-Plaintiffrequests an award of attorneys ' fees and costs for having to bring the instant suit. WHEREFORE, PlaintifPlaintiff VII. COUNT II 33 RAS00000427 VIII. COUNT III IX. COUNT IV X. COUNTY XI. JURY DEMAND 1. Plaintiffs demand a trial by jury on all issues so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of all other similarly situated, pray for re lief and judgment as follows: A. Certifying the proposed Class and approving Plaintiffs Town of Gulf Stream and _____ as class representatives ; B. Appointing Richman Greer, P.A. ______ as class counsel; C. Awarding Plaintiffs and the Class damages in an amount to be proven at trial, along with costs, interest, an attorneys' fees; and D. Entering whatever orders the Court deem s necessary to divesting the Defendants from their interest in the enterprise and imposing reasonable restrictions on the future aetivitesactivities or investments of the Defendants to prohibit them from engaging in a sim ilar type endeavor; E. Awarding any further relief the Court deems just and proper. 34 RAS00000428 Case: 15-13433 Date Filed: 06/21/2016 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 15-13433 Non-Argument Calendar D.C. Docket No. 9:15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, MARTINE. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOV ANI MESA, an individual, eta!., Plaintiffs -Appellants, versus RAS00000429 Case: 15-13433 Date Filed: 06/21/2016 Page: 2 of 13 Defendants -Appellees. Appeal from the United States District Court for the Southern District of Florida (June 21, 2016) Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges. PER CURIAM: The Town of Gulf Stream, Florida ("Gulf Stream" or the "town") and its contractor Wantman Group, Inc. ("Wantman") (collectively the "plaintiffs") appeal the dismissal of their class action complaint 1 under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c), 1964(c). The plaintiffs' complaint was premised on, among other actions, the defendants' alleged efforts to inundate the town with public records requests in an attempt to cause a violation of Florida's Public Records Act, Fla. Stat.§ 119.07 (the "Act"), and then to threaten litigation and the possibility of liability for attorneys' fees to 1 The plaintiffs defined the proposed class to include the following: All state or local municipalities, municipal agencies, or private contractors in the State of Florida, who have been served with a public records request by any of the Defendants and who either (a) paid a settlement amount in conjunction witl1, or to resolve the public records request; or (b) incurred attorneys' fees and costs to respond to or litigate against public records requests from any of the Defendants. Com pl.~ 31, Doc. 1. Citations to "Doc." refer to docket entries in the district court record in this case. 2 RAS00000430 Case: 15-13433 Date Filed: 06/21/2016 Page: 3 of 13 extort an unreasonable settlement. The district court recognized the "very difficult situation" the plaintiffs allegedly found themselves in, Doc. 4 7 at 4, but nevertheless held that the plaintiffs failed to allege at least two predicate acts in support of their RICO claim. After careful review, we agree that the plaintiffs' allegations, although troubling, fail to state a claim under RICO. Therefore, we affirm. I. Gulf Stream is a tiny town of under 1,000 residents and just 17 full time employees.2 The defendants-Martin E. O'Boyle, William F. Ring, Christopher O'Hare, Jonathan R. O'Boyle, Denise DeMartini, and their associated companies-pummeled the town with nearly 2,000 public records requests, many of them frivolous, with no intention of actually reviewing the results. Examples of such requests included • "All email addresses created or received by the Town of Gulf Stream," Compl. Ex. B, Doc. 4-2 at 2 (No. 1); • "All phone numbers in the town's records," id. (No.3); and • "Any and all records containing a social security number," id. at 10, No. 322. 2 We derive these facts from the complaint's well-pled allegations, which we accept as true for purposes of the motions to dismiss. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). 3 RAS00000431 Case: 15-13433 Date Filed: 06/21/2016 Page: 4 of 13 These and other bogus requests were "an essential first-step" in a "scheme to defraud and extort money from the class members." Compl. ~ 37, Doc. 1. The purpose ofthis onslaught of records requests was to induce a violation of the Act and then threaten a lawsuit, or actually file one, which could entitle the defendants to prevailing party attorneys' fees under Fla. Stat.§ 119.12.3 "It is this threat of prevailing party attorneys' fees," the plaintiffs alleged, "that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme." Compl. ~52, Doc. 1. The defendants then demanded unreasonable settlements and threatened to file more frivolous records requests if the town did not settle the claims. Since 2013, the defendants have filed 43 public records suits against the town.4 3 Florida Statutes§ 119.12 provides: If 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. Fla. Stat.§ 119.12. 4 In addition to the public records disputes litigated in state court, Martin O'Boyle and the town have had other disagreements, some of which have been litigated in federal court. See, e.g., O'Boyle v. Thrasher, Ward, & Town of Gulf Stream, No. 15-10997, _F. App'x _, 2016 WL 158757 (lith Cir. Jan. 14, 2016) (affirming the district court's dismissal ofO'Boyle's claims against the town under 42 U.S.C. § 1983); O'Boyle v. Town of Gulf Stream, eta!., No. 9:14-cv- 80317-DMM (S.D. Fla. Mar. 30, 2015) (granting the defendants' motion for summary judgment and dismissing a First Amendment challenge to the town's sign ordinance), appeal docketed, No. 15-13964 (lith Cir. Sept. 3, 2015). We recently affirmed the award of attorneys' fees in the 4 RAS00000432 Case: 15-13433 Date Filed: 06/21/2016 Page: 5 of 13 In addition, defendant O'Hare employed aliases when making public records requests to avoid incurring a special service charge the town would have otherwise imposed. Florida authorizes the town to condition public records production on the payment of certain costs and expenses, but only "[i]fthe nature or volume of public records requested to be inspected or copied ... is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both." Fla. Stat. § 119.07(4)(d). When the town began to assess special service charges against O'Hare for his voluminous requests, he started using fake names to hide his identity. The defendants also lodged a bogus public records request with Wantman, a government contractor also covered by the Act. See Fla. Stat. § 119.0701.5 When the defendants did not receive the document requested, they filed suit and promptly demanded nearly $4,000 to settle the claim. § 1983 action. O'Boyle v. Thrasher, Ward & Town of Gulf Stream, No. 15-10997, _F. App'x , 2016 WL 1426013 (lith Cir. Apr. 12, 2016). 5 During the relevant time, Fla. Stat.§ 119.0701(2) (2003) provided that "each public agency contract for services must include a provision that requires the contractor to comply with public records laws." Florida recently amended this statute to specify precisely when a public records requester may bring suit against a contractor. See 2016 Fla. Law Serv. ch. 2016-20 (CS/HB 273) (codified at Fla. Stat.§ 119.0701(3)-(4) (2016)). 5 RAS00000433 Case: 15-13433 Date Filed: 06/21/2016 Page: 6 of113 Based on these and similar allegations, the plaintiffs filed a class action complaint on their own behalf and on behalf of other similarly situated state or local municipalities, municipal agencies, or private contractors. They alleged that each defendant committed at least one predicate act of mail fraud, wire fraud, or extortion, constituting a pattern of racketeering activity in violation of RICO, 18 U.S.C. §§ 1962(c), 1964(c). The defendants moved to dismiss arguing, among other points, that neither filing frivolous public records requests nor threatening to file or actually filing a lawsuit is a predicate act under RICO. The district court agreed, granted the defendants' motions to dismiss, and dismissed the case with prejudice. This appeal followed. II. "We review de novo the district court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the complaint's allegations as true and construing them in the light most favorable to the plaintiff." Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (internal quotation marks and citation omitted). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). A complaint is insufficient if it "tenders naked assertions devoid of further factual enhancement." !d. (internal quotations marks and citation 6 RAS00000434 Case: 15-13433 Date Filed: 06/21/2016 Page: 7 of 13 omitted). To survive a motion to dismiss, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." !d. III. To establish a federal civil RICO violation under§§ 1962(c) and 1964(c), the plaintiffs must prove the conduct of an enterprise through a pattern of racketeering activity and an injury to business or property by reason of the RICO enterprise. See Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282-83 (11th Cir. 2006). The district court dismissed the plaintiffs' RICO claim on the ground that the plaintiffs failed to allege a pattern of racketeering activity. We therefore focus on this element of the claim. A RICO "pattern of racketeering activity" requires at least two "qualifying predicate acts," each of which constitutes "a violation of one of the state or federal laws described in 18 U.S.C. § 1961 (1 )." Raney v. Allstate Ins. Co., 370 F .3d 1086, 1087 (11th Cir. 2004). The plaintiffs argue that they have adequately pled two types of predicate acts: (1) extortion under the Hobbs Act, 18 U.S.C. § 1951, and (2) mail and wire fraud under 18 U.S.C. §§ 1341, 1343. See 18 U.S.C. § 1961(1) (listing violations of the Hobbs Act and the mail and wire fraud statutes). We consider each type of predicate act in turn. 7 RAS00000435 Case: 15-13433 Date Filed: 06/21/2016 Page: 8 of 13 A. The Hobbs Act prohibits extortion, defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2). The plaintiffs contend that the defendants' "systematic use of unjustified lawsuits as part of a more extensive extortion scheme to obtain money" supports a claim of extortion under the Hobbs Act. Appellants' Br. at 18. Our precedent commands otherwise. We held in United States v. Pendergraft that a "threat to file litigation against [the government], even if made in bad faith and supported by false affidavits, [was] not 'wrongful' within the meaning of the Hobbs Act." 297 F.3d 1198, 1208 (11th Cir. 2002). The issue was whether a threat to add a bogus claim in a federal lawsuit against a county government in an effort to force a large settlement could support a Hobbs Act violation. "[U]nder our system," we explained, "parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights." Id. at 1206. Thus, "litigants may be sanctioned for only the most frivolous of actions." !d. And even then, such sanctions~through tort actions for malicious prosecution, for example~"are heavily disfavored." Id. We also expressed confidence in the "time-tested procedures" of the courts to resolve disputes in litigation by "separating validity from invalidity, honesty from 8 RAS00000436 Case: 15-13433 Date Filed: 06/21/2.016 Page: 9 of 13 dishonesty." Id. Moreover, citizens have a constitutional right to petition the government for redress under the First Amendment. Id. at 1207. For these reasons, we rejected the contention that a threat to file litigation against the government can trigger Hobbs Act liability. Id. at 1206-1207. We clarified in Raney, a civil RICO case, that Pendergraft applies both to threats of litigation and actual litigation. Raney, 370 F.3d at 1088. In Raney, the plaintiff alleged that the defendants filed frivolous lawsuits in an effort to extort money from him. !d. at 1087. We held unequivocally that "the filing of a lawsuit may not state a claim for extortion under the federal RICO statutes." !d. The material difference between this case and Pendergraft or Raney is the number oftimes the defendants allegedly threatened to file a lawsuit or actually sued in an effort to extort money. Indeed, assuming the allegations in the complaint are true, as we must, the defendants have engaged in a pattern of frivolous litigation activity while abusing, on a grand scale, their statutory right to request public documents from the government. Nonetheless, the same concerns driving our decisions in Pendergraft and Raney are equally present here. Our judicial system, and the Act in particular, encourages citizens to use the courts to resolve public records disputes. Moreover, citizens have a constitutional right to petition the government for redress. We believe that regardless of the scope and scale of the litigation, the courts are amply equipped to deal with frivolous 9 RAS00000437 Case: 15-13433 Date Filed: 06/21/2016 Page: 10 of 13 litigation. See, e.g., The Florida Bar v. Committe, 916 So. 2d 741, 749 (Fla. 2005) (sanctioning an attorney for, among other things, "repeatedly attempt[ing] to relitigate the same nonmeritorious issue in an attempt to frustrate the legal process and to harass [an] attorney debt-collector"). Thus, Pendergraft and Raney control, and the alleged misconduct cannot as a matter of law constitute the predicate act of extortion for purposes of the plaintiffs' civil RICO claim. The plaintiffs also alleged that the defendants abused their right to request public records; they argue on appeal that this abuse amounted to a RICO predicate act. As alleged in the complaint, the defendants intentionally set the town up to violate the Act. Whether it was a setup or not, the town may be on the hook for attorneys' fees if it failed to respond timely to the requests. See Bd. a/Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 124-25 (Fla. 2016) (holding that once the court determines that the defendant "unlawfully refused" to permit a public record to be inspected or copied, the court must assess reasonable attorneys' fees, whether or not the defendant acted in good faith (citing Fla. Stat. § 119.12)); Promenade D'Iberville, LLC v. Sundy, 145 So. 3d 980, 983 (Fla. 1st DCA 2014) (holding that a delay in producing non-exempt public records for no legally sufficient reason constitutes a violation of the Public Records Act). We nevertheless agree with the district court that the alleged abuse of the Act "must be addressed in the individual lawsuits filed, or through a change in the laws 10 RAS00000438 Case: 15-13433 Date Filed: 06/21/2016 Page: 11 of 13 by the Florida Legislature." Doc. 47 at 8. RICO and the Hobbs Act in particular do not provide the remedy the plaintiffs seek. B. The plaintiffs next contend that mail and wire fraud constitute the predicate acts necessary to support their RICO claim. Specifically, they argue that O'Hare's use of aliases to avoid incurring a special service charge when lodging public records requests amounted to fraud. We are unpersauded. "The elements of mail and wire fraud are: (1) intentional participation in a scheme to defraud, and, (2) the use of the interstate mails or wires in furtherance of that scheme." United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). "Nondisclosure of material information can constitute a violation ofthe mail and wire fraud statutes where a defendant has a duty to disclose, either by statute or otherwise." McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1225 (11th Cir. 2002); accord Am. United Life Ins. Co. v. Martinez, 480 F .3d 1043, 1065 (11th Cir. 2007) (holding that the failure to allege a duty to disclose is fatal to a RICO claim premised on mail fraud arising out of alleged nondisclosure of material information). Although the plaintiffs argue that O'Hare's concealment of his true identity to avoid incurring a special service charge constituted fraud, they alleged no facts to plausibly suggest that O'Hare had any duty to disclose that information. To the 11 RAS00000439 Case: 15-13433 Date Filed: 06/21/2016 Page: 12 of 13 contrary, Florida law recognizes a person's right to request public records anonymously. See Chandler v. City of Greenacres, 140 So. 3d 1080, 1084-85 (Fla. 4th DCA 2014) (holding that a city cannot require a public records requester to provide identifying information, which "could have a chilling effect on access to public records and is not required by the Public Records Act"). Accordingly, the plaintiffs failed to allege the predicate acts of mail and wire fraud to support their RICO claim. Because we conclude that the plaintiffs' mail and wire fraud allegations fail on this basis, 6 we do not consider the defendants' alternative reasons for rejecting it. IV. The allegations in the plaintiffs' complaint paint a frustrating picture. Accepting those allegations as true, the defendants have engaged in a concerted effort to capitalize on the relatively unfettered access to public records Florida has granted its citizens by bombarding small towns and municipalities with public records requests to which they cannot respond adequately. As distasteful as this 6 See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (lith Cir. 2007) ("We may affirm the district court's judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below."). 12 RAS00000440 Case: 15-13433 Date Filed: 06/21/2016 Page: 13 of 13 conduct may be, the allegations do not support a RICO claim under our precedent. We therefore affirm the dismissal of the plaintiffs' complaint.7 AFFIRMED. 7 Some of the defendants have also filed a motion for sanctions under Federal Rule of Appellate Procedure 38. We DENY that motion. 13 RAS00000441 Case: 15-13433 Date Filed: 06/21/2016 Page: 1 of 1 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT David J, Smith Clerk of Comi ELBERT PARR TUTTLE COURT OF APPEALS BUILDINC· 56 Forsyth Street, N.W Atl~nta, Georgia 30303 June 21,2016 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 15-13433-DD Case Style: Town of Gulf Stream, et al v. Martin O'Boyle, et al District Court Docket No: 9:15-cv-80182-KAM For rules end forms visit WWW C!J] I .tiSCOUI'IS goy This Court requires all counsel to file documents electronically using the Electronic Case Files (''ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41 (b). The time for filing a petition for rehearing is governed by II th Cir. R. 40-3, and the time for filing a petition for rehearing en bane is governed by lith Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en bane is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and lith Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3. Please note that a petition for rehearing en bane must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any pa1iy in the appeal. See II th Cir. R. 26.1- 1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en bane. See 11th Cir. R. 35-5(k) and 40-1 . Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later). Pursuant to Fed.R.App.P. 39, costs taxed against appellants. The Bill of Costs form is available on the internet at www.call.uscourts.gov For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Elora Jackson, DD at (404) 335-6173. Sincere! y, DAVID J. SMITH, Clerk of Court Reply to: JeffR. Patch Phone#: 404-335-6161 OPIN-IA Issuance of Opinion With Costs RAS00000442 LAW OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. DOUGLAS C. BROEKER, P.A. 44 West Flagler Street, Ste. 1500 Miami, Florida 33130~6817 Telephone: (305) 374-5623 Facsimile: (305) 358~1023 ROBERT A SWEET APPLE*,*' DOUGLAS C. BROEKER KADISHA D. PHELPS ALEXANDER D. V ARKAS, Ill ASHLEIGH M. GREENE BERKLEY S. VITALE • BOARD CERTIFIED BUSll'<'ESS LIT!GATION ATrOR."ffiY •~ BOARD CERT!FJED ClVlL TRIAL ATTOR..'JEY Scott W. Morgan, Mayor William Thrasher, Town Manager Gulf Stream Town Commission 100 Sea Road Gulf Stream, Florida 33483 August 18,2016 SWEET APPLE & V ARKAS, P.A. 20 S.E. 3rd Street Boca Raton, Florida 33432-4914 Telephone: (561) 392-1230 Facsimile: (561) 394~6102 Please Reply To: Boca Raton rsweetapple@sweetapplelaw.com ajvarkas@sweetapplelaw.com bvitale@sweetapplelaw.com cbailcy@sweetapplelaw.com dsmith@sweetapplelaw.com Re: Report on the Alleged Systematic Abuse of Public Records Laws by Martin O'Boyle, Jonathan O'Boyle, Christopher O'Hare, Citizen's Awareness Foundation, Inc., and The O'Boyle Law Firm Dear Mayor Morgan and Commission Members: It is well known that for about the last three (3) years the Town of Gulf Stream has endured and defended what it believes to be systematic abuse of the Florida Public Records laws by Martin O'Boyle, Christopher O'Hare, Citizen's Awareness Foundation, Inc., The O'Boyle Law Finn and others. These abuses include, but are not limited to, receiving in excess of ;2,280 public records requests by the above named and their affiliates. In addition, the group has filed more than 37 public records request lawsuits, and more than 18 other lawsuits directed against the Town, its employees or agents. These actions follow a long history of documented public records abuse by Martin O'Boyle both in the Town of Longport, New Jersey and with the State Attorney of Florida's Fifteen Judicial Circuit, as discussed in my earlier report (Exhibit A), as a means to bully and intimidate the Town into settling with him for money damages and other non-monetary demands. This particular pattern of abuse started in January 2014, when Martin O'Boyle orchestrated and launched a scheme in conjunction with his son Jonathan O'Boyle, The O'Boyle Law Firm, and others, to abuse the liberality of Florida's public records laws in a plan designed to create significant money profits. As part of the plan, O'Boyle formed an entity called Citizen's Awareness Foundation. Inc., (CAFI), and alleged it to be a not-for-profit Florida corporation. Details of the scheme have recently been revealed in extensive documentation produced to the Town through litigation discovery, including a memorandum from Martin O'Boyle to attorney Robert G. Tweel, Esquire, dated January 28, 2014, which was copied to Joel Chandler. (Exhibit B). In that memorandum, Martin O'Boyle states that he has established Citizen's Awareness Foundation, RAS00000443 Mayor Scott Morgan Gulf Stream Town Commission August 18, 2016 Page 12 Inc. and named three of his long-time employees as directors: Denise DeMartini 1, William F. Ring, Jr., and Brenda Russell. Martin O'Boyle also seeks advice from Attorney Tweel as to what his title should be and what specific job descriptions and duties should be designated for all of the employees, including Mr. Joel Chandler. Martin O'Boyle states that he wants to form the corporation as a 50l(c)(3), i.e., a federal not-for-profit that will: (Exhibit B). (t)ravel the State to make public records requests; and to either obtain the public records or if the governmental body does not provide the records (e.g.: they play "hide the ball") that the Corporation will obtain counsel (likely on a contingency basis) to take legal action. In that connection, the Corporation will have offices at 1280 West Newport Center Drive, Deerfield Beach, FL 33442. The law firm that will be used almost exclusively (they are a firm that specializes in public records litigation) will be the O'Boyle Law Firm (lead by my son) and his offices will be at the same address. Martin O'Boyle further reveals in the memorandum that his new "not-for-profit" and the new law firm will both be operating from his offices in Deerfield Beach, FL. Martin O'Boyle further proposes in his memorandum to use his company, Commerce Group, Inc., to pay the payroll of this purported not-for-profit CAFI corporation. These payments would be treated as deductible donations, once CAFI's tax free status is secured from the Internal Revenue Service. Mr. O'Boyle proposes to secure a line of credit at the bank, and after the 50l(c)(3) non-profit status comes through, to give a lump-sum "donation" to the corporation. We have reviewed the IRS database for not-for-profit charities/entities but found no record of Citizens Awareness Foundation, Inc., as a charity/entity that has either applied for, obtained, or had 50l(c)(3) status revoked so it is uncertain whether CAFI ever obtained its 50 I ( c )(3) status. When the Town attempted to ascertain the details concerning Citizens Awareness Foundation, Inc., and Martin O'Boyle's involvement in same, he testified under oath that he has had absolutely no involvement with the Foundation. Specifically, Mr. O'Boyle testified that: Q. So in this lawsuit, can you tell me if-if there is any legal counsel that has been approved by CAFI other than the O'Boyle Law Firm? A. I have nothing to do with CAFI. I'll say it again and I'm saying it the last time. If you ask me again, I won't answer. M. O'Boyle Dep. Vol. II, 174:1-7, Sept. 15,2014 I According to a recent lawsuit filed against Gulf Stream by Ms. DeMartini, she no longer works for Martin O'Boyle or his companies. LAW OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. RAS00000444 Mayor Scott Morgan Gulf Stream Town Commission Q. On January 27th, CAFI was incorporated, and the board was designated to be William Ring, Denise De martini and Brenda Russell, correct? A. I have nothing to do with CAFI, and I'm not going to--that's the last question I'm answering. M. O'Boyle Dep. VoL II, 174:20-24 Q. CAFI's address, sir, is listed as the same address as Commerce Group; are you aware of that? A. I know nothing about CAFI. M. O'BoyleDep. Vol. II, 175:6-8 Q. So Brenda Russell is your secretary, and she is one of the directors of CAFI? A. I don't know if she is a director of CAFI. Q. I told you who the three directors are. A. That's what you told me. I don't believe you. Q. So you don't know who they are? A. I just told you I know nothing about CAFI. M. O'Boyle Dep. Vol. II, 178:21-179:2 THE WITNESS: I know nothing about CAFI. And let me say it 100 times in a row and that way we can save you all this time. M. O'Boyle Dep. VoL II, 199:9-11 Q. Who else has funded CAFI, Mr. O'Boyle? A. I don't know. Q. Are you aware of anyone besides you that has provided funds to that entity? A. I know nothing about CAFI. M. O'Boy1e Dep. VoL II, 208:4-8 August IS, 2016 Page j3 Mr. O'Boyle's testimony, which is clearly contradicted by the documentary evidence, appears to be designed attempt to deflect discovery and investigation into O'Boyle's activities, and is being brought to the Court's attention by Motion. In furtherance of this records-for-profit scheme, O'Boyle's son, Jonathan O'Boyle, registered The O'Boyle Law Firm P.C., Inc., as a Florida law firm, with the law firm's main client to be Citizens Awareness Foundation, Inc., which was being formed at the same time by or through the direction of Martin O'Boyle. Quite clearly, the documents and information obtained indicate that a central LAw OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. RAS00000445 Mayor Scott Morgan Gulf Stream Town Commission August 18, 2016 Page 14 component of O'Boyle's business strategy was for O'Boyle to pay agents to make hundreds of public records requests throughout the State of Florida for the purpose of generating public records lawsuits for his son's law firm (Exhibit C). Curiously, at the time The O'Boyle Law Firm was opened in Florida, Jonathan O'Boyle was not a member of The Florida Bar, yet the documents reflect that he assumed a central role in running the law firm and overseeing all of the public records litigation. (Exhibit D). These public records lawsuits by statute can only seek attorneys' fees and costs, not damages. Therefore, CAFI and the O'Boyle Law Firm designed their public record requests with the specific intent to make "kill-shots"-that is, they would create a public record situation that guaranteed "non-compliance" by m1suspecting governmental agencies, contractors and not-for-profit charities throughout the State of Florida. (Exhibit E). Then they would sue these entities for their "non- compliance", and attempt to quickly settle the matters, in most if not all instances for amonnts well in excess of the minimal amount of legal time or expenses involved. (Exhibit E). According to its Executive Director, Joel Chandler, the "kill-shot" technique was a central pmi of CAFI's overall windfall profits strategy (Exhibit F), whereby its lawyers at The O'Boyle Law Firm demanded fees in excess of the actual amount of attorney's hourly time incurred 2 This "windfall profits scheme" formed the basis of Martin O'Boyle's overall business plan, as is evidenced by the memorandum referring to a contingency fee basis--a likely reference to the lode star concept, which, following an appropriate and binding agreement with a client, allows attorneys to obtain multiples of their fees if they are taking work on a contingency rather than a per hour payment basis. (Exhibit B). This plan was approved by Jonathan 0' Boyle as evidenced by Joel Chandler's testimony and evidence provided. This plan was also approved by Jonathan O'Boyle, as evidenced by Joel Chandler's testimony a11d by Jonathan O'Boyle's own exchange with Kevin Tynan, Esq. Until the time Gulf Stream filed its RICO lawsuit against them and exposed these actions, The O'Boyle Law Firm had filed in excess of 100 lawsuits aronnd the State of Florida, including claims against the following private charities and public agencies: " Area Agency on Aging of Central Florida, Inc. • Catholic Charities Diocese of Venice, Inc. e Epilepsy Foundation • Florida Council Against Sexual Abuse • Florida Healthy Kids Corporation • Homeless Coalition of Palm Beach County " Lutheran Services Florida, Inc. • Mascotte Elementary School, Inc. • Northwest Behavioral Health Services, Inc. • South Florida Behavioral Health, and • The Hope Foundation for Autism. A schedule of lawsuits filed by CAFI is attached hereto as (Exhibit G). 2 According to Mr. Chandler, this plan continued despite his protest and is one of the many reasons for his eventual resignation. LAW OFFICES OF SWEETAPPL£, BROEKER & VARKAS, P.L. RAS00000446 Mayor Scott Morgan Gulf Stream Town Commission August 18, 2016 Page 15 The O'Boyle Law Firm also employed a man named Jeffrey Gray3 to act as a Plaintiff in their cases and the firm filed in excess of30 cases on his behalf. Mr. Gray, who is not a lawyer, has admitted under oath that he was paid money from the attorney's fees collected by The O'Boyle Law Firm in his public records cases. Since no damages are recoverable in public records litigation other than attorney's fees, Mr. Gray testified that The O'Boyle Law Firm paid him a portion of the attorney's fees generated upon successful completion of the case (Exhibit H). See also Affidavit of Joel Chandler dated October 27,2014 (Exhibit I). Mr. Chandler has testified that no contingency agreements were prepared between Citizens Awareness Foundation, Inc., and The O'Boyle Law Firm, and he has further testified that cases were settled by The O'Boyle Law Firm without his knowledge or without written closing statements. (As director of CAFI, Chandler was the representative "client" and should have been consulted by its attorneys for approval of CAFI settlements and should have received a written document summarizing each settlement). Mr. Chandler also testified that when he protested the manner in which CAFI lawsuits and settlements were being made without his consent, he was advised that all offers for settlement were made pursuant to the policies of the O'Boyle Law Firm (as opposed to the direction and best interests of the client). (See Exhibit F). Mr. Chandler also stated that he was paid to train Mr. Christopher O'Hare regarding public records requests and lawsuits. Mr. O'Hare, who filed in excess of 1,000 public records requests targeting the Town of Gulf Stream, has been largely represented by The O'Boyle Law Firm in lawsuits stemming from many of those requests. In this regard, Mr. O'Hare has filed at least 26 public records lawsuits and 5 non-public records request lawsuits against the Town, its employees or agents. Mr. Chandler expressly advised that "targeting" of municipalities should not be undertaken, yet Mr. O'Hare and Mr. O'Boyle continue to make public records requests of the Town and its agents at the approximate rate of30 per week. In my opinion, the purpose of this "targeting" conduct of Gulf Stream is to send a message to other governmental entities, contractors and charities throughout the State that any resistance or defense of public records requests and/or lawsuits brought by Citizens Awareness Foundation, Inc., Mr. O'Hare, Mr. O'Boyle and The O'Boyle Law Fim1 will result in similar treatment and abuse. In essence, the aforementioned group has attempted to make Gulf Stream the poster child of its profit-making public records scheme. The current State ofFlorida law appears to allow continued broad and unbridled public records requests to be directed at State agencies and contractors, including charities and not-for-profits. If these requests are not fully or timely responded to, the requestor may file suit, which includes a unilateral fee entitlement to the plaintiff. As a result, skilled and knowledgeable plaintiffs can creatively fashion "kill-shots" or requests that are so complicated, intricate or difficult that a complete response is often impossible. This is made even more likely when dozens or hundreds of requests are filed at or near the same time, making it nearly impossible to timely respond to every request. In order to prevail on a claim for attorney's fees, the defendant's response to the public records request must be deemed "unreasonable". In light of the conduct described above and the inordinate burdens placed 3 Jeffrey Gray was also at one point an employee of Citizens Awareness Foundation, Inc. LAw OFFICES OF SWEET APPLE. BROEKER & V ARKAS, P.L. RAS00000447 Mayor Scott Morgan Gulf Stream Town Commission August 18, 2016 Page 16 by these plaintiffs against the Town of Gulf Stream, it is my position that the Town has acted reasonably under what can only be described as extremely difficult circumstances. Although, the public's right to obtain and access public records is an important right which should not be eliminated, there must be balance. It is imperative that the Florida legislature review ongoing abuses and schemes arising from public records legislation. Measures to prevent and curtail these abusive activities must be enacted, including, but not limited to, a bad faith exception and reciprocal attorneys' fee provision. However, in the interim, the best and only solution for the Town appears to be to expose these activities and to refuse to succumb to lawsuits that are filed to intimidate, bully, or shakedown the municipality. Settlement of any such lawsuit will only result in additional filings. All municipalities and government contractors must be made fully aware of the nature of these activities and work diligently to combat ongoing and expanding abuses. RAS:cjm Encls. Regards, LAW OFFICES OF SWEET APPLE, BROEKER & V ARK AS, P.L. RAS00000448 LAW OffiCES OF SWEET APPLE, BRORKER & VARKAS, P.L. DOUGLAS C. BROEKER, P A. 44 WestflagkrStrtct,Stc. 1.500 Miami, Florida 33i3o-6&17 Telephone: (305) 374-5623 l'acsimilc: {305)358~1023 ROBERT A. SWEET APPLE •," DOUGLAS C. BROEKER ALEXA.'>:DER D. VARKAS, JR. KADISH A D. PHELPS ALEXA~DER D. VARKAS, Ill ASIILF.JGH M. GRRENE OERKLEY SWEET APPLE VITALE • nQ,o;)(J) t'WI.TJ<ll:J;J U\..11."1:~ L!1lOA1lO:>A"n0Kl".'EY •• 001\W CE!\TlflED (:iYn. 11\:hl. ll.TTOflt-.1W VIA EMAIL Scott W. Morgan, Mayor Town of Gulf Stream Commission 100 Sea Road Gulf Stream, Florida 3 348 3 Febmary 12,2016 SWEETAPI'l,E & VARKAS, P.A 20 S X Tct Street Docn Raton, Florirta 334324914 Telephone: (561) 392-1230 Faesimik: (561) 394-6102 Please Rtply To: Boca R~tton rswectapp!c@sv.eetapple!aw.eom avarkas@swcetappleJaw.c:om 1\jv nrkas(a)swe.etap.plclaw .~;om bv it.1le@;swee:tupp l elaw .com cbailey@Jswcct!lpp!cluw.com d.:.;mith@swccmpp!e!aw .com Re: Martin O'Boyle, Jonath11n O'Boyle and Christopher O'Hue Dear Mayor Morgan and Commission Members: I have been asked to provide a report regarding the ongoing litigation and activities involving Martin O'Boyle, Jonathan 0' Boyle and his law firm, The O'I3oylc Law Firm, and Christopher O'Hare. PAST CO:-IDUCT I. Longport, N.J. I believe it is important for you to understand that the Town's current disputes are not atypical for Martin O'Boyle. A N<::w Jer&y Law Joum;1l reports that Mr. O'Boyle entered into a conflict with the Town of Longport, New Jersey in 2007, when he was cited for a zoning violation. Mr. O'Boyle is reported to have Jlled numerous lawsuits individually, through his corporation, Commerce Group Construction, Inc., and his organization, Citizens for Open Government, LLC. These were lodged against various individuals, the Town and the press. In the case of MartinE. O'Boyle v. Peter !sen, 2014 WL 340104 (N.J. Super. A.D.) (a defamation case that Mr. O'Boyle brought and lost) the Superior Court ofNew Jersey, Appellate Division, noted: From September 2007 through early July 2008, plaintiff[Martin O'Boy!e] and members of his family filed multiple requests pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47: lA-1 to 13. Longport's only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, the clerk went to the emergency room because of the stress she attributed to the flood of OPRA requests. And, in February 2008, the RAS00000449 Mayor Scon Morgan Tovm ofGulfStream Commission February 18,2016 Page! 2 Borough's solicitor notified plaintiff that it would not accept any additional OPRA requests he filed, explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Longport had received 190 requests on October 16 and 17 and thirty filed October 31, 2007. The Longport dispute included published reports of the flying of planes and banners trailing messages calling the Mayor a "puppet'' and other more cryptic enunciations. Il. Tennessee In state court litigation in Tennessee, in the case or New Midland Plaza Associates, et. a/. v. Wachovia, et. al., Case Number E-18053 in the Blount County Circuit Court, Fifth Judicial District, Judge W, Dale Young found that: O'Boylc's intent, purpose and strategy in pursuing his claims was to conduct this litigation in a manner which had the maximum financial iffiJ*!ct on the defendants .... The purpose and strategy manifested itself in O'Boyle's repeatedly making arguments and taking positions--irrespective of their merits-that would maximize the inconvenience and costs to defendants. More than seven years of [iivolous litigation, litigation spawned by the zealous temperament of O'Boyle, has placed an extreme burden on the clerk of this court over and above the everyday course of business Judge Young also found that Mr. O'Boyle had filed "serial motions" denying he had given inconsistent testimony, which motions "served dual improper purposes of attempting tore-litigate issues upon which the Court had previously ruled and unnecessalily increasing the Defendants' costs." 'I11e Court found this conduct sanctionable. An affidavit filed by the trial court noted that it had previously sanctioned [the l'laintitl:S] on two occasions in an amount totaling a quarter of a million dollars and twice held them in contempt. Til. The Palm Beach County State Attorney The Palm Beach Post reports that in one month, O'Boyle's company, Sweet A ron Boy Blimp Co., LLC, submitted 1,328 request to A ron berg and the Office of the l9'h Judicial Circuit State Attomey Bruce Colton ... that included 87 4 requests to Bruce Colton, State Attorney on the Treasure Coast, and 454 requests to Dave Aronberg, Palm Beach Counry State Attorney. More than 1,000 requests were sent over three days, February 25 through 27. IV. Gulf Stream Mr. O'Boylc commenced his assault of public records requests on the Town ofGulfStream in the spring of20JJ, after he was denied certain varianL'C requests lor work on his home. Some 400 Requests were followed by approximately 16 lawsuits. Ultimately, in an attempt to put an end to his LAW 0FFIG$ OF Swrrr,~l 11lLC:. Bk:OI?Kcrt & VArU:.IIS, P.L. RAS00000450 Mayor Scott Morgan Town of Gulf Stream Commission February 18, 2016 Page 13 conduct, the Town settled with Mr. O'Boyle in July 20 I 3, permitting the improvements he sought and paying him $ l 80,000.00. The current onslaughi or Public Records Requests and Lawsuits began shortly after the Town settled with Mr. O'Hoyle in July 2013. SpccificaHy, just one month aller the settlement, Mr. Christopher O'Hare began inundating the Town with public records requests. From late August 2013, when the Town began keeping detailed logs tmtil the end of the year, Mr. O'Hare averaged in excess of 100 requests per month. By October 2013,just three months after the Tuv.n settled with Mr. O'Boylc, Mr. 0' Hare had filed his first public records suit. More than one dozen lawsuits had been served on the Town by January 2014. The O'Boyle Law Firm, which had been formed by Jona1han O'Boyle in PcnllSylvania in )Jovcmber 2013, began operating in Florida in mid-January 2014 and immediately began filing public records suits against the Town on behalf of both Mr. O'Hare, Mr. O'Hoyle and Citizens Awareness Foundation, Inc. With dozens of lawsuits pending, Martin O'Boyle, Christopher O'Hare and various individuals or entities affiliated with them continued to make hundreds of public records requests to the Town over the past 2 •;, years. Utinnttely, they have made approximately 2,000 public records requests. These have included numerous requests by Mr. O'Hare using pseudonyms mocking Town officials such as: Gonna White, Groan Orthwein, Billy I rasher and Bobby Gangrene. Requests have also been routinely made by email in high volumes and outside of regular business hours, makingitnearlyimpossiblcforTownstaff to keep up. '!his includes 40 requests made in a 4 hour period on a Sunday. V, Citizens Awareness FQundation, Inc. During July of2014l received an unsolicited email from Joel Chandler, a former Director of Citizens Awareness Foundation, Inc, ("CAFr'), an alleged Florida not-for-profit Company. Mr. Chandler advised and swore in an affidavit that CAFI aml The O'Boyle Law Finn were established and funded by Martin O'Boyle. Both were located in the O'Boyle offices and run by O'Boylc, his employees, and designees. 111c ultimate goal of the enterprise was to iile at least one hundred public records lawsuits per month against public entities and State contractors throughout Florida. All litigation would then be fed to The O'Boylc Law Firm. The law firm would then demand and collect more in fees than it had expended in billable time in what Mr. Chandler described as the "windfall scheme." Defimdants would find it less expensive to settle than to engage counsel or litigate. (See Chandler Affidavit and exchange of cmails attached as composite Exhibit "A"). As a result of these alleged activities, Mr. Chandler quit his job and stated that he was notit)'ing victims of this conduct. llc further indicated that Mr. O'Boyle personally caused hundreds of public records requests and two lawsuits to be filed against the Town of Gulf Stream on behalf of CAFI without Mr. Chandler's knowledge or approval. Public records reveal that on behalf ofCAFI as of one year ago, the O'Boyle Law Firm, has filed more than 100 lawsuits against various government entities, govcrruncnt contractors and not-for-profit :.AW0FFICESOF SWl·:l, r.wru:. BHOtKER & V ARKAS, P. L. RAS00000451 Mayor Scott Morgan Town of Gulf Stream Commission February IS, 2016 Page j4 entities (including the Area Agency on Aging of Palm Beach Treasure Coal;t, Homeless Coalition of Palm Beach County and the Hope Foundation tor Autism). The Florida Bar News and other publications have now extensively reported this conduct as a scam and the legislature is discussing proposed changes to the Florida Statutes. VI. Pending Litigation Currently pending against the To•-.'!1 are nearly 40 public records cases which have been filed by Mr. O'Hare, Mr. O'Boyle or entities ovmed or controlled by O'Boyle. These lawsuits are largely being advanced by The O'Boyle Law Firm. In essence, Mr. O'Hare and Mr. O'Boylehavc filed thousands of Public Records Requests inundating the Clerk of the Tmvn to frustrate her ability to comply with the requests. Thereafter suits arc brought complaining about the speed and accuracy of the responses and seeking attorney's fees and costs that the current version of the Public Records Act only permits a plaintiff to recover. The plaintiffs have not succeeded on any of their public records claims and have dismissed several of them after motions for sanctions were filed. The only case to have gone to conclusion was won by the Town and has been appealed by Mr. O'Boylc. We intend to notice the remainder of the cases for trial as soon as possible. Various additional claims have been brought by Mr. O'Hare and Mr. O'Boyle against the Town and its elected officials, employees and contractors including Mayor Morgan, Bill Thrasher, Special Magistrate Lara Donlon, Chief Ward and Marty Minor with Urban Design Kilday for alleged Federal and State civil rights violations. These claims are being handled by insurance counsel. The Town has obtained favorable dismissals of several of these suits, one of which was just affirmed on appeal by the Federal Appeals Court and resulted in a favorable fcc award against Mr. O'Boyle for his frivolous filing. ~one of these claims have been decided in favor of Mr. O'Hare or Mr. O'Boyle. Lawsuits have been filed against the Town's attorneys, including three suits against my lirm or me personally and a lawsuit against Joanne O'Connor and Skip Randolph. Particularly ffustrating is the fact that one of these lawsuits arose after Mayor Morgan, Ms. O'Connor and I met to confidentially discuss a potential settlement with Mr. O'Hare and his counsel, Louis Roeder and Mark Hanna. Mr. 0' Boyle has sued complaining that this settlement conference violated the Sunshine Law even though Mayor Morgan was the only city government representative in attendance. Ethics Complaints have been brought against me, Mr. Randolph and Mayor Morgan. These have all been dismissed. Mr. O'Boyle has repeatedly flown planes towing banners over West Palm Beach and Gulf Stream denigrating the Town's attorneys and officials. More recently, the attempts to particularly target the attorneys defending the public records ca~es has intensifled as some 200 records requests were sent to ulrnost every attorney at Mr. Randolph's law firm in late November and December apparently by Mr. O'Hare. VII. Conclusion In 35 years of practicing law and litigating cases throughout the State of Florida and the United States I have never encountered this type of a concerted pattern of abusive conduct directed at a local Lr.won~c~or SwJ:r I Arf"L,C. 8RO£K£R & VARKA.S, P,:., RAS00000452 Mayor Scott Morgan Town of Gulf Stream Commission February 18, 2016 Page 15 government. It is clear to me that the O'Boyles and /vir. O'Hare engage in this conduct to cause the Tovm to accede to their demands. 1 hope that my report has helped you understand the rwture and scope of the litigation and actions that the To\vn has been defending. RAS:cjb Enclosures Regards, J?~&~/~ ROBERT A. SWEET APPLE LAw Orne~ OF SWEf.TAPPL€, l:lROEKF.R & VARKA~, P.L RAS00000453 AFFIDAVIT OF JOEL EDWARD CHANDLER BEFORE ME, the undersigned authority, personally appeared JOEL CHANDLER, who after being duly sworn, deposes and says that: I. My name is JOEL CHANDLER. 2. I am over eighteen ( 18) years of age. 3. I am a resident of Polk County, Florida. 4. I have personal knowledge of every assertion made in this affidavit. · 5. Citizens Awareness Foundation, Inc., (herein "CAFI"), was formed as a Florida not-for-profit corporation by Martin O'Boyle in concert with his son, Jonathan O'Boyle. 6. Jonathan O'Boyle is an attorney admitted in Pennsylvania and New Jersey, but not admitted to practice in Florida. 7. In January 2014, I was solicited by Martin O'Boyle to lead a not-for-profit corporation that was, he said, intended to promote open government. That not-for-profit corporation was created at Martin O'Boyle's direction and became known as the "Citizens Awareness Foundation, Inc." or"CAFI." 8. During my discussions with Martin O'Boyle, wherein he sought to hire me to serve as the leader of CAP!, we explicitly agreed that CAFI would have an independent Board of Directors; that the Board of Directors would be entirely free from the influence of Martin O'Boyle or the O'Boyle Law Firm; that I would have absolute and sole discretion regarding the commencement and resolution of open goverrunent litigation on behalf of CAFI, and; subject only to the independent Board of Directors, I would have the authority to select and retain law firms for the purpose of engaging in open government litigation. EXHIBIT I .A RAS00000454 9. During January or February of2014, I participated in a telephone conversation with Martin O'Boyle and Robert "Bob" Tweel, a tax attomey from West Virginia. Martin O'Boyle and I discussed with Mr. Tweel the absolute necessity that CAFI be a legitimate not-for-profit entity. This included, but was not limited to, the requirement that CAF! use a variety of law flnns to represent it so as to avoid the appearance of self-dealing. 10. Martin O'Boyle indicated to Mr. Tweel and to me that he was going to loan all necessary monies to fund CAF[ and, after 501(c)(3) status was acquired, write off as a charitable donation all of the monies he had loaned to CAFI. After leaving this meeting I was particularly encouraged that Martin O'Boyle was genuine in his interest to establish a bona fide not-for-profit entity of which I would serve as the Executive Director and that CAFI would afford me the opportunity to more effectively continue my work as a civil rights activist and advocate for open government. I I. Martin O'Boyle appointed Brenda Russell, William Ring and Denise DeMartini to the CAFI Board. 12. Brenda Russell is Martin O'Boyle's long time secretary. She was never present for meetings. In fact, no fonnal meetings of the Board were ever called or held. For a brief time, Brenda Russell collected my travel and business receipts, all of which were subject to the approval of Martin O'Boyle. 13. William Ring is Martin O'Boyle's longtime business associate and corporate attorney. 14. Denise DeMartini is the long-time employee of Martin O'Boyle or entities that he controls. 15. All of my negotiations for employment by CAFI were with Martin O'Boyle. At no 2 RAS00000455 time did I engage in any negotiations regarding the details of my employment, including my compensations, with anyone other than Martin O'Boyle. 16. At Martin O'Boyle's direction I drafted and signed a proposed memorandum of understanding regarding my employment by CAFI. I have never received a copy of the proposed memorandum of understanding signed or approved by the board of CAFI. 17.1 served as the Executive Director ofCAFI for approximately five (5) months, through the end of June 2014. !8. I resigned because of repeated instances of conduct perpetuated by Martin O'Boyle, Jonathan O'Boyle, William Ring, Denise DeMartini, and some of the attorneys at the O'Boyle Law Firm, P.C.,Inc., (herein the "O'Boyle Law Firm"), as set forth herein, which I believe may be criminal, fraudulent and unethical. 19. My relationship with the O'Boyle Law Firm was not limited to my capacity as the Executive Director of CAFI. As the individual plaintiff in several open government lawsuits, I had retained the O'Boyle Law Firm as my personal legal counsel. 20. My communications with the attorneys of the O'Boyle Law Firm, including Jonathan O'Boyle, affected both CAP! and me, as an individual client. 21. Martin O'Boyle and Jonathan O'Boyle told me that Martin O'Boyle was funding the O'Boyle Law Firm. 22. Martin O'Boyle told me that he was also funding CAFI. 23. The Martin O'Boyle business entities, including Commerce Group, Inc., CAFI, and the O'Boyle Law Firm operated from the same physical location and were controlled by Martin O'Boyle. 24. Despite assurances that CAFI would be independent and not-for-profit, Martin 3 RAS00000456 O'Boyle and the O'Boyle Law Finn used CAFI for the sole purpose of generating attorney's fees for the O'Boy!e Law Finn. 25. Throughout my tenure with CAFI, I repeatedly demanded that lawsuits not be filed or settled without my direct authorization. 26. In spite of Martin O'Boyle's initial assurances to the contrary, I was not permitted to retain legal counsel on behalf of CAFI, other than the O'Boyle Law Finn. William Ring, CAFI's President and Martin O'Boyle's proxy, communicated this to me. 27. On numerous occasions, !learned that the O'Boyie Law Finn, on behalf of CAFI, had filed lawsuits, without my knowledge or authorization. 28. The O'Boyle Law Finn routinely settled cases without written fee agreements, contingency agreements or closing statements. No accountings ofthe monies received were provided to me despite my repeated requests for that documentation. 29. Repeatedly, I advised Martin O'Boyle, William Ring and Jonathan O'Boyle that my other personal attorneys had advised it was a serious Bar violation to disburse settlement funds without client approval or closing statements. 30. Despite my protests, the O'Boyle Law Finn continued to file and settle lawsuits on behalfofCAF! and to collect and keep settlement payments. At no time was I ever presented with any fonn of accounting for legal fees or the disbursement of settlement payments. 31. During the O'Boyle Law Firm's representation ofCAFI and me, I was personally present, or present by telephone, at numerous O'Boyle Law Finn meetings. Denise DeMartini, Martin O'Boyle's executive assistant and Director of CAFI, conducted these aw finn meetings. During these meetings, and in my presence, many pending 4 RAS00000457 cases were discussed. These discussions included the details of cases to which neither CAFI nor I were parties. Denise DeMartini is not a member of the Florida Bar. 32. It became commonplace for Martin O'Boyle to express his opinions and to offer his advice with respect to litigation strategies and on the conduct of CAFI lawsuits as well as the cases of other firm clients. Jonathan O'Boyle actively participated in these discussions and, in my presence, directed the work ofO'Boyle Law Firm attorneys and made litigation decisions. 33. During the course of my employment I learned that Martin O'Boyle directed his secretary to file in excess of 100 public records requests to the Town of Gulf Stream, under the pretense that these were being filed on behalf of CAFl. He also ordered that lawsuits be filed by CAFI against the Town of Gulf Stream. This was done without my authority and litigation was filed over my objection. 34. When I complained about the fact that Martin and Jonathan O'Boyle were not honoring the commitment that I would have scle authority to make public records requests and conduct litigation, I was told by William Ring that this was "the way Big Daddy wants it", i.e., Martin O'Boyle. Otherwise, "Big Daddy will turn-off the spigot of money". 35. Jonathan O'Boyle advised me that he was not a member of the Florida Bar but would be become a member within days. During the five months that I worked with CAFI, Jonathan O'Boyle worked full-time at the O'Boyle Law Firm providing legal advice, directing the administration of cases, and assuming responsibility for cases. 36. The O'Boyle Law Firm and Jonathan O'Boyle prosecuted and filed some cases without my permission and settled some cases without my knowledge or consent. 5 RAS00000458 37. No retainer agreements were ever entered into with me on behalf of CAFI. No contingency agreements were entered into with me on behalf of CAFI. No closing statements were ever presented to me and it appears that all monies that were solicited from defendants were paid directly to the O'Boyle Law Firm. 38. Martin O'Boyle, through his entities, funded all ofthe filing fees and expenses of CAFI as well as the expenses of the O'Boyle Law Firm. CAFI has now filed scores, if not hundreds, of cases against state and local agencies throughout Florida as well as various state contractors. 39. The employees of all of Martin O'Boyle's entities, including The Commerce Group, Inc., CAFI and the O'Boyle Law Firm were shared. Denise DeMartini and William Ring worked for Martin O'Boyle, CAFI and the O'Boyle Law Firm. 40. Although Martin O'Boyle named Denise DeMartini a director of CAFI, she also directed the operations ofthe O'Boyle Law Firm and conducted law firm meetings. 4 I. Denise DeMartini repeatedly stated that CAFI was required to file at least one hundred lawsuits a month; that all lawsuits had to be directed to the O'Boyle Law Firm for prosecution, and; that as my direct supervisor, she would evaluate my performance based upon my ability to deliver a minimum of twenty-five case per week to the O'Boyle Law Finn. 42. Through William Ring, Martin O'Boyle insisted that the O'Boyle Law Firm handle all litigation. 43. Martin 0' Boyle told me he had unlimited money to pay filing fees for CAFI cases and I was to file as many cases as possible. 44. When I asked Martin O'Boyle to quantifY how many cases he was willing to finance 6 RAS00000459 he said it was virtually unlimited. When I again tried to clarizy by asking him if he was willing to finance three thousand (3,000) cases in a single year, he said "sure." 45. When I learned it was the policy and practice of the O'Boyle Law Firm to demand settlement of cases against government entities and state contractors for attorney's fees in excess of the fees actually earned I was livid. In fuel, I confronted William Ring, Denise DeMartini and Jonathan O'Boyle in May of2014 and stated in unequivocal terms that I would resign if it didn't stop, 46. In one telephone conversation with Jonathan O'Boyle I warned him at least six times that! was going to resign and that l objected to Denise DeMartini's demands that l produce I 00 cases per month, her control of the O'Boyle Law Firm and the windfall scheme of collecting more monies in attorney's fees from defendants, than had actually been earned. 4 7. Despite these complaints, William Ring, Denise DeMartini and Jonathan O'Boyle told members of the firm that I had authorized the windfall scheme. When I learned of this I confronted those involved. Nick Taylor, Esquire confirmed that despite my objection, the windfall scheme would continue as firm policy. Shortly thereafter, I announced my resignation. 48. Ryan Witmer and Giovanni Mesa announced they were also going to resign. 49. William Ring announced he was going to become a member of the O'Boyle Law Firm at about that time. 50. After I resigned, Martin 0 'Boyle contacted me by telephone and demanded that I withdraw an email I had sent to Nick Taylor regarding Jonathan O'Boyle's unlicensed practice of law and Jonathan O'Boyle's authorship of the windfall scheme. During that 7 RAS00000460 call, which was my last conversation with Martin O'Boyle, he repeatedly threatened to bring great "unpleasantness" to my life if! failed to renounce my email to Nick Taylor. 51. Thereafter, Martin O'Boyle repeatedly attempted to contact me by telephone and email seeking my assistance to facilitate CAFI in filing additional lawsuits. 52. After resigning from CAFI I sent an email to numerous newspaper and television news reporters announcing my resignation. I copied that announcement to dozens of individuals, including Robert Sweetapple, Esquire, to notify them of my disassociation and disapproval of the O'Boy!es and their activities. 53. Within a few days of my resignation from CAFI, I granted an interview with a reporter from the Lakeland Ledger and provided many of the details contained within this affidavit. 54. Prior to em ailing Robert Sweetapple, I had never met him, spoken to him, nor had he or any members of his finn contacted me. 55. Prior to my emailing the law firm of Jones Foster, I had never bad any contact with Joanne O'Connor, Esquire, or any member of that Jaw firm. 56. My subsequent contact with Robert Sweetapple and Joanne O'Conner was entirely the result of own initiative. 57. l sent my email to Robert Sweetapple because I knew he represented the Town of Gulf Stream, which I believed was being victimized by Martin O'Boyle and the O'Boyle Law Firm and I was concerned that the conduct of Martin O'Boyle and the O'Boyle Law Firm might be illegal and fraudulent. 58. I believed that I had a duty to make all victims, including the Town of Gulf Stream, aware of what I learned during my association with Martin and Jonathan O'Boyle. For 8 RAS00000461 example, Martin O'Boyle's orchestration of more than one hundred public records requests being served upon the Town of Gulf Stream, allegedly under the name of CAFI, but without my authorization; Martin O'Boyle's direction that lawsuits be filed by the O'Boyle Law Firm in the name ofCAFI against the Town of Gulf Stream but without my authorization, and; in spite of my objections, Martin O'Boyle's use of CAFI as a weapon in his personal vendetta against the Town. 59. Prior to contacting Robert Sweetapple to make him aware of my concerns regarding Martin and Jonathan O'Boyle's conduct, I met with numerous private attorneys. As a result of those meetings I concluded that J had a duty to disassociate myself from the 0' Boyles and to make full disclosure of any illegal and fraudulent activities. I have also contacted numerous other victims and their attorneys to advise them of the conduct of the 0' Boyles and to provide them with evidence of such conduct 60. Before speaking with Robert Sweetapple on the phone I spoke with Joanne O'Connor by telephone and made her aware of the misconduct. 61. I then provided to Robert Sweetapple evidence of what ! believe may be fraudulent and criminal conduct as well as a detailed chronology of events. 62. Thereafter, I spoke with Robert Sweetapple and gave him permission to meet with me and to take a voluntary sworn video statement concerning my involvement with Martin O'Boyle, Jonathan O'Boyle, CAFI and the O'Boyle Law Firm. 63. At all times Robert Sweetapple made me aware of the application of the lawyer-client privilege, both as it pertained to CAFI and to me personally. I determined, based upon independent legal advice, that I was fully permitted and had a duty to disclose what I believe to be the criminal and fraudulent conduct of Martin O'Boyle, Jonathan 9 RAS00000462 O'Boyle, CAP! and the O'Boyle Law Finn. I also voluntarily waived privileged matters that arose from the joint representation by the O'Boyle Law Finn. 64. In spite of the many contrary assurances made by Martin O'Boyle to me, including the exercise of my independent judgment and meaningful economic resources to be used to promote the public's right to access government records and meeting, in reality CAFI's sole purpose is to serve as an exclusive in-house mechanism whereby the O'Boyle Law Firm can generate legal fees by filing hundreds of open government lawsuits. 65. The egregiousness of the scheme was exacerbated by the O'Boyle Law Firm's policy of demanding excessive and unearned legal fees from defendants as a condition of settlement. 66. Simply put, CAP! is a profit-generating scheme funded by Martin O'Boyle to produce fees for his son's legal practice. 67. Allegations that Joanne O'Conner, Robert Sweetapple or their firms purposely solicited and obtained confidential information from me is false. The allegation that this was done to gain an unfair advantage in litigation is further false. 68. The information that I provided to Robert Sweetapple and Joanne O'Connor was not intended to provide an unfair advantage to the Town of Gulf Stream, but to make the Town and all other victims aware of what I believe to be the fraudulent, criminal and professionally unethical conduct of Martin O'Boyle,Jonathan O'Boyle, CAFI and the O'Boyle Law Firm. 69. Robert Sweetapple and Joanne O'Connor did not solicit privileged infortnation from me. l voluntarily contacted them and made my own detertnination, after meetings with 10 RAS00000463 independent counsel, as to what information and documents to provide to victims. 70. My sole motivation for contacting the media, victims and their attorneys, proving evidence, inviting the taking of my sworn statements and authoring this affidavit is to protect the essential civil right of all Floridians to know what their government is doing in their name and at their expense. It is my considered opinion that the unconscionable conduct of Martin O'Boyle, Jonathan O'Boyle, CAF! and the O'Boyle Law Firm serves as an example of the abuse of our legal system and will be used by opponents of open government as an excuse to limit the public's right to know. FURTHER AFFIANT SA YETI-I NAUGH . SWORN TO AND SUBSCRIBED before me this,;/J day of October, 2014. AMBER COLSOII KELLY Nohlty Public .. Stahl or Flotida My Comm. Expires May 31, ZOI5 Commission# EE 165909 Personally known I Produced Identification Identification produced:......,f\-"""<-"'Dl"-""------- 11 OvvJ~C.~ NOTARY PUBLIC P~~eof~~~ My Commissions Expires: (Y\~ 3\ ,7_0 \ S RAS00000464 From: Pate: To: Subject: HRyan Witmer" <rwitmer@commcrcc .. group.com> Tuesday, JanllllT)' 14,2014 6:27PM "Joel Chandl<:r" <joel.chll.Ildlcr@fogwatch.org> RE: New case Page 1 of 1 Joel -regarding your second question below, " how many cases are your guys able to take where you're paying the filing fees?" -what do you have in mind? Ryan L. Witmer, Esq. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Office: 954-574-6885 Cell: 717-201-3097 Fax:954-360-0807 RWitmer@commerce-group.com -----Original Message----- From: Joel Chandler [mailto;joel.chandler@fogwatch.org] Sent Sunday, January 12, 2014 4:08 PM To: Ryan Witmer Subject: New case 1 have been having technical issues with Drop Box and was just now able to send you a like to the records and videos we discussed yesterday. Please confirm your access to those files. At some point I'd like to talk again with you about our work. One obvious question that comes to mind is how many cases are your guys able to take where you're paying the filing fees? Joel Chandler (863) 660-4244 joel.chandler@fogwatch.org www.FogWatch.org 7/11)1?014 RAS00000465 From: Date: To: Subject: "Ryan Witmer" <rwitmer@conunerceMgroup.com> Wednesday, January 15,2014 9:59AM "Joel Chandler" <joel.chandlcr@fogwatch.org> RE: New case Joel -is there a good time to chat this afternoon? Ryan L Witmer, Esq. 1280 West Newport Center Drive Deerfield Beach, Fl 33442 Office: 954-574-6885 Cell: 717-201-3097 Fax:954-360-0807 RWitmer@commerce-group.com -----Original Message----- From: Joel Chandler [mailto:joel.chand!er@fogwatch.org) Sent: Tuesday, January 14, 2014 8;14 PM To: Ryan Witmer Subject: Re: New case Page J of3 Well, that's an interesting question. In the Fall of 2012 an attorney asked me to come up with public records cases with a very specific set of facts and I was able to bring him 101 cases in the space of about six weeks. Each case had nearly perfect facts and was what I refer to as a "triple A" or a "kill-shot." What I'm trying to gauge is how many cases you guys are comfortable doing on a contingency basis if 1.) you are fronting the filing fees; 2.)the cases have perfect facts; 3.) the denials are either clearly stated in writing or video records if they are in person; 4). the plaintiff is ideal (willing to settle or go as far as the attorneys want-no media issues, etc.). We need to figure out the economics of this -who gets paid and how-and then how many cases we want to do and roll with it. The alternative to filing fees may be creating a state not-for-profit with no assets, income or bank account and filing for indigent status. I am confident that we would have to litigate that issue and it would go up on appeal. Once the establishment figured out what we are trying to do they would expend enormous resources to stop us. But if we puled it off there would be no limit to the number of cases that we could file. The less conspicuous method is just to pay the filing fees and go for the throat and get paid 7/1 (;/?I'll"'- RAS00000466 quickly. Joel Chandler (863) 660-4244 joel.chandler@fogwatch.org www.FogWatch.org On Jan 14, 2014, at 6:27PM, Ryan Witmer <rwitmer@commerce-group.com> wrote: Pagc2of3 > Joel -regarding your second question below, " how many cases are your guys able to take where you're paying the filing fees?" -what do you have in mind? > > Ryan L. Witmer, Esq. > 1280 West Newport Center Drive > Deerfield Beach, FL 33442 > Office: 954-574-6885 > Cell: 717-201-3097 > Fax:954-360-0807 > RWitmer@commerce-group.com > > > -----Original Message----- > From: Joel Chandler [mailtojoel.chandler@fogwatch.org] > Sent Sunday, January 12, 2014 4:08PM > To: Ryan Witmer > Subject New case > > I have been having technical issues with DropBox and was just now able to send you a like to the records and videos we discussed yesterday. Please confirm your access to those files. > > At some point I'd like to talk again with you about our work. One obvious question that comes to mind is how many cases are your guys able to take where you're paying the filing fees? > > Joel Chandler > (863) 660-4244 > joel.chandler@fogwatch.org > www.FogWatch.org > > 7/11)/?f\ 1 t1 RAS00000467 Page 3 of3 > 7/16/2014 RAS00000468 MEMORANDUM [ME01863.DS2J TO: Robert G. Tweel, Esquire -E-Mail FROM: Martin E. O'Boyle DATE: January 28, 2014 RE: Citizens Awareness Foundation, Inc. 1. With regard to the caption, on January 20, 2014 we set up a corporation1• The name and address of the corporation is as follows: Citizens Awareness Foundation, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 2. The Directors of the Corporation are as follows: Denise DeMartini, William F. Ring, Jr. and Brenda Russell. Note; Joel Chandler who is an employee of the Corporation would like to use the name Executive Director on his business cards and he would like to hold hilnself out as Executive Director. Please let me know if there are any reasons why we should not allow him to use that title. 3. The undersigned does not have a title as of yet. Will I need to have a specific title? If so, what should it be? 4. Should there be specific job descriptions/ duties for all employees, Mr. Chandler, myself and any others which we may hire (and I understand that we are in the process of hiring at least one more)? 1 TlUs was set up electronically on the evening of January 24, 2014 by Marrett Hanna. RAS00000469 Memorandum to Robert G. Tweel, Esquire January 28, 2014 Page2 7. This Corporation is intended to be a 501c3 that will have employees that will travel the State to make public records requests; and to either obtain the public records or if the governmental body does not provide the records (e.g.: they play "hide the ball") that the Corporation will obtain counsel (likely on a contingency basis) to take legal action. In that connection, the Corporation will have as its offices 1280 West Newport Center Drive, Deerfield Beach, FL 33442. 8. The law firm that will be used almost exclusively (they are a firm that specializes in public records litigation} will be the O'Boyle Law Firm (lead by my son) and his offices will be at the same address. Please let me know if you see this as problematic in any respect. 9. We need to determine how we will pay payroll. I query whether we could have payroll made from the Commerce Group Account or whether there will have to be separate accounts. My concern here is comingling, although it does not seem that it should be problematic since essentially if all payroll was paid from the Commerce Group Account and the Corporation reimbursed Commerce, it would be akin to the Corporation renting the employees from Commerce. These same questions would apply to workmen's compensation insurance and to health insurance. !¥Qlltlli'ih£i~~tM:~:~!iW~ig8J.w9t~L<::ti~~~§:9!&l:'!P!o:J?li)f,J.h~::R4}ii;~!ttjj:~~ ~lii:ii~!J:i>!l;Ji<i'li~ wJ1!fr.h~~~:ri~i4J9:M'i~-ii!~!i~~t~P:~ttQ11~~.!?1#f}i.:fu'i&l~ ~~L~~~~~Ji~:i~?.~~~~~,Qi~li~~~:WeWi.tlM#~1ca~::~~ ~~~ijii1i~~~:k~hl~~4¢.~~t 11. Attorney Marrett Hanna has performed the work on this Corporation thus far. In that connection, she has generated the following documentation: A. Articles of Incorporation2 -filed -confirmation not yet received B. By Laws - a draft is attached. 'Attorney William Ring is the incorporator. P/NPR/L/ A/CAFI bar RAS00000470 Memorandum to Robert G. Tweel, Esquire January 28, 2014 Page3 12. Further to the above, I need to know what additionally needs to be filed at all levels. As an example, are there additional filings that have to be made with the State at this time? What filings have to be made with the Federal Government, including the IRS? Will you be handling those filings? 13. I have never operated a 501c3 Corporation. Could you provide me with a list of the" dos and don'ts" for the Corporation? In that regard, I would also like to know what the absolute have tos are and the absolute don't dos are. My goal is to make sure that we operate in the most proper of manners. 14. My understanding is it takes several months to obtain the tax free status from the Internal Revenue Service. If that is not true, please explain. H that is true, please explain how this corporation will be funded if the money is not tax exempt. I was told (by a layman) that once the application is made with the IRS that the tax free status is retroactive to the application. Of course, I cannot confirm or deny the validity of that statement. Also, I assume that once we obtain the 501c3 status that all monies coming in from all sources in all amounts will be deductible to the person making the donation. Please confirm the correctness there. 15. Although I touched on it lightly above, can you tell me what the timing is tn obtaining the tax free status from the Internal Revenue Service. 16. With regard to getting money into the Corporation until it becomes a 501c3, assuming there is not a simple way to do it, what I thought of doing is having the 501c3 get a line of credit at the bank (I would secure it with my funds) whereupon they can borrow money to operate. When the 501c3 came through, I could then give a donation to the Corporation which would be used to pay off the debt and perhaps have additional funds available to it as part of that donation. Please give me your thoughts in that regard. 17. With regard to health insurance, I touched on that above. ~ti§a:g~!!:!il~(W~ P /NPR/L/ A/CAF! bar RAS00000471 Memorandum to Robert G. Tweel, Esquire January 28, 2014 Page4 18. The registered agent is Christine Defilippis3-Marrett says there are no officers. 19. We are hoping this Corporation will be a 501c3 Corporation, please let me know if the Corporation needs to be capitalized; and how that should be done. 20. With regard to our many corporations, we are very "loose" as applies to corporate governance, annual meetings, etc. With a tax free, could you tell me the strictness in those areas? Also, can you let me know what filings (beyond those of a typical corporation) are required? Again, I do not want to operate the Corporation improperly and run the risk of losing its charter or tax exempt status. 21. I believe I asked this question earlier, but are there any limitations on donations? If so, are there any limitations on who the donations may come from? 22. We need to adopt an Employee Handbook. ~i#.i~Ji~~~!'ill\!1 Note: When doing so, we should prepare a "cheat sheet" explaining the salient points including payroll. As you can see, I have multiple questions and I have probably missed several questions which I will need your input on. Some questions that I have are: (a) when can we get started; and (b) what is the approximate cost to get us to where we need to go? P.S. Please disregard the highlighted areas. 'We will likely change the Registered Agent P/NPR/L/ A/CAFI bar RAS00000472 CITIZENS AWARENESS FOUNDATION. INC. Name: CITIZENS AWARENESS FOUNDATION, INC. ARTICLE 1. OFFICES Principal Office. Citizens Awareness Foundation, Inc. ("Corporation") may have offices, either within or without the State of Florida, as the Board of Directors ("Board") may designate or as the affairs of the Corporation may require from time to time. ARTICLE 2. MISSION STATEMENT AND SPECIFIC PURPOSE. 2.1 Mission Statement. Citizens Awareness Foundation, Inc. is a nonprofit, nonpartisan enterprise whose mission is to help the public understand how to effectively deal with the multitude of government entities, government officials and bureaucratic red tape. Our goal is to educate and empower members of the public so that they can meaningfully inform themselves and better participate in the democratic governments in the United States. 2.2 Specific Pw:pose. The Corporation's specific purpose is organized as follows: I) to provide programs and information, which seek to meet the educational needs of those individuals who engage or are involved with government and its officials; and 2) to encourage. citizens to monitor and to participate in the process of government. ARTICLE 3. BOARD OF DIRECTORS 3.1 General Powers. The affairs of the Corporation shall be managed by the Board. Directors need not be residents of the State of Florida. 3.2 Number and Tenure. The Board shall be composed of no fewer than three (3) Directors. The number of Directors may be changed from time to time by amendment to these Bylaws but no decrease in the number of Directors shall have the effect of shortening the term of any incumbent Director. A Director shall hold office for a term of one (I) year, or until he or she dies, resigns or is removed by a majority vote of the Directors under Section 2.10 of this Article. 3.3 Regular Meetings. By resolution, the Board may specify the time and place either within or without the State of Florida for holding regular meetings without other notice than such resolution. 3.4 Special Meetings. Special Board meetings may be called by or at the request of the President, the Secretary, or any two (2) Directors. The person or persons authorized to call special meetings may fix any place either within or without the State of Florida as the place for holding any special Board meeting called by them. 3.5 Notice of Special Meetings. Written notice stating the place, day, and hour of each special Board meeting shall be delivered personally or by mail, facsimile, electronic mail or telegraph to each Director at his/her address shown on the records of the Corporation at least two (2) 1 RAS00000473 days before the meeting. Notice shall be effective upon delivery at such address, provided that notice by mail shall also be deemed effective if deposited in the United States mail properly addressed with postage prepaid at least five (5) days before the meeting, notice by facsimile or electronic mail shall be deemed effective when transmitted, and notice by telegraph shall also be deemed effective if the content thereof is delivered to the telegraph company at least three (3) days before the meetings. Neither the business to be transacted at, nor the purpose of any special meeting, need be specified in the notice of such meetings. 3.6 WaiverofNotice. 3.6.1 Whenever any notice is required to be given to any Director under the provisions of these Bylaws, the Articles of Incorporation, or the State of Florida Not for Profit Corporation Act, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the waiver of notice of such meeting. 3.6.2 The attendance of a Director at a meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.7 Quorum. A ml\iority of the total number of Directors shall constitute a quorum for the transaction of business at any Board meeting but, if less than a majority is present at a meeting, a majority of the Directors present may adjourn the meeting from time to time without further notice. 3.8 Manner of Acting. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board, unless the act of a greater number is required by law or by these Bylaws. 3.9 Resignation. Any Director may resign at any time by delivering written notice to the President or the Secretary, or to the registered office of the Corporation. 3.10 Removal. A Director may be removed from office upon the vote of a majority of the remaining Directors. 3.11 Vacancies. Any vacancy occurring on the Board may be filled by the vote of a majority of the remaining Directors. Unless he/she dies, resigns, or is removed, a Director so elected shall hold office until his/her successor is elected. 3.12 Presumption of Assent. A Director of the Corporation present at a Board meeting at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his/her dissent is entered in the minutes of the meeting, or unless he/she files his/her written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof, or unless he/she forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. A Director who voted in favor of such action may not dissent. 3.13 Compensation. Directors shall not receive any stated salaries for their services, but by Board resolution, Directors may be paid their expenses, if any, of attendance at each Board or committee meeting, or a fixed sum for attendance at each Board or committee meeting; but nothing herein shall be construed to preclude any Director from receiving compensation for services rendered to the Corporation. 3.14 Loans. No loans shall be made by the Corporation to any of its Directors. 2 RAS00000474 3.15 Meeting by Conference Telephone. Members of the Board may participate in a meeting by means of conference telephone or similar communications equipment provided all persons participating in the meeting can hear each other and such participation shall constitute presence in person at the meeting. 3.16 Action by Board without a Meeting. Any action which could be taken at a meeting of the Board may be taken without a meeting if a written consent setting forth the action so taken is signed by each of the Directors. Any such written consent shall be inserted in the minute book as if it were the minutes of a Board meeting. 3.17 Committees. The Board, by resolution, adopted by a majority of the Board, may designate and appoint one (I) or more committees to advise the Board. If the committee shall have and exercise the authority of the Board in the management of the Corporation, it shall consist of no fewer than two (2) Directors. ARTICLE 4. OFFICERS. 4.1 Number. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board. A Chair of the Board, one (I) or more Vice Chairs, and such assistant officers as may be deemed necessary may be elected or appointed by the Board; such officers and assistant officers to hold office for such period have such authority and perform such duties as may be provided by resolutions of the Board. The Board may delegate to any officer or agent the power to appoint any such subordinate officers, or agents, and to prescribe their respective terms of office, authority, and duties. Any two (2) or more offices may be held by the same person, except the offices of President and Secretary. 4.2 Election and Term of Office. The officers of the Corporation shall be elected annually by the Board. Unless he/she dies, resigns, or is removed, each officer shall hold office until his/her successor is elected. 4.3 Resigpation. Any officer may resign at any time by delivering written notice to the President, the Secretary, or the Board. 4.4 Removal. Any office or agent elected or appointed by the Board may be removed by the Board whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4.5 Vacancies. A vacancy in any Office because of death, resignation, removal, disqualification, or any other cause may be filled by the Board for the unexpired portion of the term. 4.6 President. The President shall be chief executive officer of the Corporation and, subject to the Board's approval, shall supervise and control all of the assets, business, and affairs of the Corporation. The President shall preside over all Board meetings unless the Chair, if any, is present. The President may sign deeds, mortgages, bonds, contracts, or other instruments, except when the signing and execution thereof have been expressly delegated by the Board or by these Bylaws to some other officer or agent of the Corporation or are required by law to be otherwise signed or executed by some other officer in some other manner. The President may appoint or remove any staff or consultants for the Corporation and establish the rate of compensation for any such staff person or consultant. In general, he/she shall perform all duties incident to the office of President and such other duties prescribed by the Board from time to time. 4.7 Secretarv. The Secretary shall: (a) keep the minutes of meetings of the Board in one (1) or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records; (d) keep registers ofthe post office address of each Director; (e) sign with the 3 RAS00000475 President, or other officer authorized by the President or the Board, deeds, mortgages, bonds, contracts, or other instruments, except when the signing and execution thereof have been expressly delegated by the Board or by these Bylaws to some other officer or agent of the Corporation; (f) prepare and submit an annual report as required by the State of Florida Not for Profit Corporation Act, and (g) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him/her by the President or by the Board. In the absence of the Secretary, an Assistant Secretary may perform his/her duties. 4.8 Treasurer. If required by the Board, the Treasurer shall give bond for the faithful discharge of his/her duties in such sum and with such surety or sureties as the Board shall determine. He/she shall have charge and custody of and be responsible for all funds and securities of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any source whatsoever, and deposit all such moneys in the name of the Corporation in banks, trust companies or other depositories selected in accordance with the revisions of these Bylaws; and in general perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him/her by the Chair or by the Board. In the absence of the Treasurer, an Assistant Treasurer may perform his/her duties. 4.9 Chair of the Board. The Chair of the Board (if the Board of Directors so deems advisable and selects one) shall be an officer of the Corporation and, subject to the direction of the Board of Directors, shall perform such executive, supervisory, and management functions and duties as may be assigned to him/her from time to time by the Board. He/she shall, if present, preside at all meetings of the Board of Directors. 4.10 fulli!!:y. The officers shall not receive any salary for their services. Officers may be reimbursed for their expenses. No loans shall be made by the Corporation to its officers. ARTICLE 5. MEMBERS This Corporation shall have no members. ARTICLE 6. CONTRACTS, LOANS, CHECKS AND DEPOSITS 6.1 Contracts. The Board may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name of, and on behalf of, the Corporation. Such authority may be general or confmed to specific instances. 6.2 Loans. No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board Such authority may be general or confined to specific instances. 6.3 Checks, Drafts. Etc. All checks, drafts, or other orders for the payment of money, notes, or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, or agent or agents, of the Corporation and in such manner as is from time to time determined by resolution of the Board. 6.4 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies, or other depositories as the Board may select. 6.5 Gifts and Contributions. The Treasurer may accept on behalf of the Corporation any contribution, gift, bequest, or device as may be consistent with the established purposes of the Corporation and as may be permitted by any applicable local, state, or federal law. 4 RAS00000476 6.6 The Corporation has been formed for the purpose of fulfilling the mission statement described in Article 2 of these bylaws and it shall be non-profit and nonpartisan. No substantial part of the activities of the Corporation shall consist of the publication or dissemination of materials with the purpose of attempting to influence legislation. The Corporation shall not substantially participate or intervene in any political campaign on behalf of any candidate for public office or for or against any cause or measure being submitted to the people for a vote. 6. 7 Legal Action. When legal action is deemed appropriate, the Board may authorize any officer or officers, or agent or agents, or appoint an Executive Director to pursue any action in the name of, and on behalf of, the Corporation. Such authority may be general or confined to specific instances. ARTICLE 7. BOOKS AND RECORDS The Corporation shall keep correct and complete books and records of account, minutes of the proceedings of its Board, and such other records as may be necessary or advisable or required by law at the registered or principal office of the Corporation. All books and records of the Corporation may be inspected by a Director for any proper purpose at any reasonable time, upon reasonable notice to the Secretary of the Corporation. ARTICLE 8. FISCAL YEAR The fiscal year of the Corporation shall be the calendar year, provided that if a different fiscal year is at any time selected for purposes of federal income taxes, the fiscal year shall be the year so selected. ARTICLE 9. EXECUTIVE COMMITTEE 9.1 Number. Tenure and Qualifications. The Board, by majority vote, may elect from its members an Executive Committee, which will assist in preparing and implementing Corporation policies and programs. The number of members of the Executive Committee shall not be less than three (3), including the Chair of the Board of Directors, if any. The members shall serve for one (I) year or until they are reelected or their successors are elected. 9.2 Powers. The Executive Committee shall have the authority to direct and oversee the implementation by the Executive Director of policies, initiatives, and programs recommended by the Board. The Executive Committee shall also have the authority to approve and oversee the budget and approve contracts on behalf of the Corporation. 9.3 Chair of the Executive Committee. The Chair of the Board of Directors or the President shall serve as Chair of the Executive Committee. 9.4 Meetings. The Executive Committee shall meet, from time to time, when any such meeting is called by the Chair, or by a majority of the members of the Executive Committee. Notice for such a meeting shall be delivered orally or in writing twenty-four (24) hours in advance of the meeting. 9.5 Quorum. A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business at a meeting of the Executive Committee. 9.6 Manner of Acting. The act of a majority of the members present at a meeting ofthe Executive Committee which a quorum is present shall be the act of the Executive Committee. 9. 7 Action by the Executive Committee without Meeting. Any action which would otherwise be 5 RAS00000477 taken at a meeting of the Executive Committee may be taken without a meeting if such action is approved, in writing, by all of the members of the Executive Committee. 9.8 Meeting by Conference Telephone. Members of the Executive Committee may participate in a meeting by means of conference telephone or similar communications equipment provided all persons participating in the meeting can hear each other. ARTICLE 11. INDEMNIFICATION To the full extent permitted by the General Corporation Law of the State of Florida the Corporation shall indemnify any person who was or is a party to any civil, criminal, administrative, or investigative action, suit, or proceeding by reason of the fact that he/she is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a Director or officer of another corporation, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and necessarily incurred by him/her in connection with such action, suit, or proceeding; and the Board may, at any time, approve indemnification of any other person which the Corporation has the power to indemnify under the General Corporation Law of the State of Florida. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which a person may be entitled as a matter of law or by contract. The foregoing shall not apply to matters as to which any such person shall be adjudged in such action, suit, or proceeding to be liable for negligence or misconduct in the performance of a duty. The Corporation may purchase and maintain indemnification insurance for any person to the extent permitted by applicable law. ARTICLE 12. AMENDMENTS These Bylaws may be altered, amended, or repealed and new Bylaws may be adopted by the Board at any regular or special meeting of the Board. ARTICLE 13. DEDICATION OF ASSETS. The properties and assets of this non-profit corporation are irrevocably dedicated to charitable purposes. No part of the net earuings, properties or assets of this Corporation on dissolution or otherwise, shall inure to the benefit of any member, private individual, or Director of this Corporation. On liquidation or dissolution, all properties, assets and obligations shall be distributed and paid over by the Board of Directors to an organization dedicated to purposes of charitable service consistent with the purposes and mission of the Community Center, provided such organization continues to be dedicated to the exempt purposes as specified in Internal Revenue Code section 50l(a)(3). ARTICLE 14. PROHIBITED ACTIVITIES. Not withstanding any other provision of these bylaws, no Director, Officer, member, employee or agent of this Corporation shall take any action or carry on any activity by or on behalf of the Corporation not permitted to be taken or carried on by an organization described in Section 50l(c)(3) of the Internal Revenue Code of 1986, as amended, or any successor provision or provisions thereto. ARTICLE 15. NON-PARTISAN ACTIVITIES. The Corporation has been formed for the purpose of fulfilling the mission statement described in Article 6 RAS00000478 " ll of these bylaws and it shall be non-profit and nonpartisan. No substantial part of the activities of the Corporation shall consist of the publication or dissemination of materials with the purpose of attempting to influence legislation. The Corporation shall not substantially participate or intervene in any political campaign on behalf of any candidate for public office or for or against any cause or measure being submitted to the people for a vote. The foregoing Bylaws were adopted by the __.B,o,a..,rd"'o"'f'-"'D"'ir"'e,.,ct.,o,.rs,__ _______ on the __ day of , 2014. ________________ Secretary 7 RAS00000479 ·'···,,· .. • . ,. ' ; . (. tl' . . • . . . ;l-·' ,. ' .. . ··'·· ', I I I I I I I I I I I I I I I I RAS00000480 Subject: RE: Update and a new idea Date: Thursday, February 13, 2014 at 9:29:15 AM Eastern Standard Time From: Marty O'Boyle To: Joel Chandler Joel--WOW[ interesting stuff. in any event, I'm not sure that f understand the full import of what you are saying; and I is likely best that we discuss face to face. What time will you be down on Wednesday? Maybe we could spend some time together discussing your thoughts below. Dinner? Will you be staying with us? let me know Martin E. O'Boyle, Commerce Group, Inc 1280 W Newport Center Drive Deerfield Beach, FL 33442 Direct Dial: 954-570-3505 Fax: 954-360-0807 Cell: 561 213 3486 E -mall: JTIQQQyj.§.@Q_mn_merce:::9£QJJ.Q, corn Web Page: Y!!.\llD!Y.comme~:ce-;gr.Ql&_com From: Joel Chandler [maiito:joelchandler@citJzensawarenessfoundation.org] Sent: Wednesday, February 12, 2014 10:20 PM To: Marty O'Boyle Subject: Update and a new idea Marty, Today I had a very productive meeting with Florida Senate President Don Gaetz regarding various open government issues. My wife Debbie and I meet with Don and his Senior Po.licy Advisor Lisa Vickerc; for about an hour. During our meeting Don asked me to review a number of legislative proposals that are planned to be introduced during the upcoming session. Several of those will, if they pass, have a significant impact on both the foundation and the firm. Chief among those is a proposal to award fees for litigating over fees. There is also a proposal that would require annual public records training fur all public employees. That alone would create a cottage industry for folks like us and Barbara Petersen. There is also a proposal to impose a daily fine if state contractors violate the the Public Records Act. My sense is that some will pass and others will get stalled in committee. In any event, the Senator was very enthusiastic about CAFI. I think we have a sympathetic car in Tal.Ial1assee. ln the morning I will be meeting with Barbara about coordinating efforts between the FAF and CAFI. Page 1 of2 RAS00000481 One idea that l am considering is offering to help with the hot-line. As it stands several dozen folks eoch month contact the FAF looking for a refenal to an attorney in an open government matter. Barbara has expressed frustration that few if any attorneys are willing to take cases on a contingency basis. Moreover, she feels slighted that those who do take cases give nothing back to the FAF. I'm thinking we can help with both of those conc.ems. First, I would like to otTer to assist v.~th the ret\mal issue by gently steering cases to Jonathan. I would suggest that Jonathan join the FAF (it's a couple of hundred bucks per year) and make a modest donation if and when cases settl.e. Maybe 10%. That would be a lot more than they are getting now. Second, if CAFf could make a "litigation grant" to cover the filing fees it would bolster the foundations image statewide and help solidifY our relationship vvith the FA F. Essentially, instead of the filing fees being paid by the fim1 in these case it would be provided as a grant by CAFL It's all coming from the same place t1ut it would buy a lot oflove from Barbara and more importantly the Florida Society of New'S Editors who fund the FAF. Barbara and I are also going to discuss joint events such as seminars and panel discussions sponsored by CAFI. It won't cost much for each event and will get lots of media. My plan is to invite local political figures (e.g. Matt Gaetz-Dan's son who serves in the House of Representatives), the editor of the local newspaper, some hostile attomey (who will refuse to show up) and Barbara Petersen. I plan to be back in South Florida next Wednesday night. I'll be in the office at least part oftbe day on Thursday and/or Friday. ! have a meeting with the President of the Society of Professional Journalist on Friday night in Fort Lauderdale. We are planning to discuss using CAFl to intervene in cases where reporters are denied access to records. Hopefully that will fmmel cases to Jonathan from news outlets around the state. Any way that's the update. More cases are coming and I'm having the time of my life. Best regards, Joel Chandler, Executive Director 'l11e Citizens Awareness F01md.ation, Inc. 1286 West Newport Center Drive Deerfi.eld Beach, Florida 33442 (863) 660-4244 Cell Phone (888) 830-3769 Help Line ,Ioe!Chantj!er@lCitiz~0.Awarene..:Jfii'J.lundation.om Page 2 of:2 RAS00000482 __ F_rid~y, Ju!y22, 2016 at 12:51:4? PM f.':'_sl:_. e_r_n_Da_v~_ll_ht_. Tl_n::_ Subject: DFC link on 3/23/14 spreadsheet. Date: Monday, April14, 2014 at 6:28:07 PM Eastern Daylight Time From: Jonathan O'Boyle ·ro: 'Joe! Chandler {joelchandler@citizensawarenesstoundation.org)' Hey Joel the DFC link is not working. I have assigned myself the case. Any chance you·got a link to that video. It WilS labeled as number 26 on your 3/23/14 spreadsheet. Jonathan O'Boyle, Esq. The O'Boyle Law Firm, P.C. Pennsyll@nia Ofu 1001 Broad St. Johnstown, PA 15905 Tel: 561-758-1223 Fax: 2.15-893··3641 j,_oboy~_gylela~'i!.fjrm,com Florida Office 1285 West Newport Center Drive Deemeld Beach, fl 33442 Office: 954-570-3533 I'm<: 954-360-0807 jgJ~~;!i)w!irm.&!lm !'age 1 of1 RAS00000483 Thur.;day, July 21, 2016 at 3:41:03 PM Eastern Dayligl1t11me --·------------' Subj.ect: RE: New case Date: Wednesday, January 15, 2014 at 10:59:01 AM Eastern Standard Time From: Ryan Witmer To: Joel Chandler Joel-is there a good time to chat this afternoon? Ryan L Witmer, Esq. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Office: 954--574-5885 Cell: 717-201-3097 Fax: 954-360-0807 HWitm_er@r..mnmerce-gro.UJ:>.,l;pm -----Original Message--· From: Joel Chandler fl:rL<l.l!l:Qjggtc;handlJlli0fQID~i!tt;,b.JJig) Sent: Tuesday, January 14, 2014 8:14PM 1o: Ryan Witmer Subject: Re: New case We!!, that's an interesting question. In the Fall of 2012 an attorney asked me to come up with public records cases with a very specific set offacts and I was able to bring him 101 cases in the space of about six weeks. Each case had nearly perfect facts and was what I refer to as a "triple A" or a "kill-shot." What I'm trying to gauge is how many cases you guys are comfortable doing on a contingency basis if 1.) you are fronting the filing fees; 2.)the cases have perfect facts; 3.) the denials are either dearly stated in writing or video records if they are in person; 4). the plaintiff is ideal (willing to settle or go as far as the attorneys want· no media issues, etc.). We need to figure out the economics of this -who gets paid and how--and then how many cases we want to do and roll with it. The alternative to filing fees may be creating a state not-for-profit with no assets, income or bank account and filing for indigent status. I am confident that we would have to litigate that issue and it would go up rm appeal. Once the establishment figured out what we are trying to do they would expend enormous resources to stop us. But if we puled it off there would be no limit to the number of cases that we could file. The less conspicuous method is jw;t to pay the filing fees and go fort he throat and get paid quickly. Joel Chandler {863) 660-4244 Loel.dlilillHer@fogwatc~&rg: www.FogWatch.org On Jan 14, 2014, at 6:27 PM, Ryan Witrner <rwitmer@£Qlll!JJ&:rl&:!lT9.lli!&Qrrt> wrote: Joel .. regarding your second question below," how many cases are your guys able to take where you're paying the filing fees?" ·what do you have in mind? Ryan L. Witmer, Esq. · 1280 West Newport Center Drive Page 1 of2 RAS00000484 Deerfield Beach, FL 33442 · Office: 954··574-6885 · Cell: 717·201·3097 · Fax: 954-360·0807 · fffi/itm_gr@comm~.JJ;~CQ.lJ.Q.~r&m ····--Original Message--···· From: Joel Chandler [mailt.Q.;jQ'it,chondier@f.gJ!l!lL<ru;j],Qt:g] Sent; Sunday, Januarv 12, 2014 4:08 PM : To: Ryan Witmer ·' Subject: New case I have been having technical issues with oropBox and was just now able to send you a like to the records and videos we discussed yesterday. Please confirm your access to those files. At some point I'd like to talk again with you about our work. One obvious question that comes to mind is how ;_ many cases are your guys able to take where you're paying the filing fees"/ } Joel Chandler ' (863) 660·4244 )•; j illfl&handler@:[Qgwa_tdL.Qrg_ f; www.FogWatch.org Page 2 of2 RAS00000485 Tuesday, Ju!y 26, :1:016 at 11:09:39 AM Ea>i:em Daylight Time ---------------·-----·---.. --.. ·-------· -----·-------.. ·-·---- Subject: RE: CAFI v. Miami's River of Life Date: Friday, June 27, 2014 at 11:19:05 AM Eastern Daylight Time From: Nick Taylor To: Joel Chandler This email is to confirm our conversation today and to reiterate that all offe.rs for settlement are made pursuant to the policies of the O'Boyle Law Firm. Nick Taylor The O'l!oyle law Firm P.C. 1286 West Newport Center Drive Deerfield Beach, Fl 33442 Telephone #954-834-22'.09 FaK 11954-360-0807 Email: ntaylor@oboylelawfirm.com from: Joel Chandler [mailto:joelchandler@citizensawarenessfoundatlon.org] Sent: Friday, June 27, 201.4 11:05 AM To: Nicl< Taylor SLibject: CAFI v. Miami's River of Life Nick, I'm writing this email to memorialize our telephone conversation this morning, As we discussed I was contacted by the Defendant in the case referenced above. He expressed his regret in his failure to properly respond to CAF!'s PRR and asked for our help in better understanding his obligations under the Public Records Act. fie also explained the dire financial condition of his organization and said that he had instructed his attorney to offer to settle the matter for $1,500. In our conversation this morning I understood, from you, that the O'Boyfe Law Firm has about $1,200 in costs and fees in the case up to this point. I also understood that you have been instructed by Jonathan O'Boyle to demand $3,800 to settle the case. If such a demand is accepted by the Defendant that would create a windfall of about $2,600 beyond actual fees and expenses. During our telephone conversation I expressed in unequivocal terms my objections to such an arrangement Until! received a telephone call from the Defendant yesterday I was unaware that any settlement discussions were taking place with the Defendant. I did not authorize any such discussions nor did I approve in any way the demand for payments of any kind, much less the demand for payments far beyond the actual fees and expenses billed by the O'Boyle Law Firm. In sum, i understand that you were directed to make the aforementioned settlement demands by Jonathan O'Boyfe, and; 1 have not and do no! approve of such demands. Please confirm your receipt and understanding of this email. Best regards, Joel E. Chandler Executive Director Citizens Awareness Foundation, Inc. 1280 West Newport Center Drive I' age 1 ofl RAS00000486 Deerfield Beach, Florida 33442 (888) 230,3769 (Media Hotline) (863)660·4244 (Cell) Www.Citif!l.!lH:\l!l(aren~;;.E.ou ndati.QtMllll ,LQQ]Qland!.?rq'i>CilizensAwat"ll!'t,~fO!lD_t@j:io!1.Qr_g RAS00000487 1. 2. 3. 4. 5. 6. 7. 8. 9. LIST OF CLASS MEMBERS (PRIVATE CORPORATIONS) IN PUBLIC RECORDS LAWSUITS BROUGHT BY DEFENDANT CITIZENS AWARENESS FOUNDATION, INC. ("CAFI") Name Style of Case, Case # & Name of County 3M Electronic Monitoring [Inc.] CAFI v. 3M Electronic Monitoring 5120 14CA003265CAA.XWS Pasco Abington Holdings Limited, CAFI v. Abington Holdings Limited, Inc. Inc. 5620 14CAOO 16090CXXXX St. Lucie ADA Engineering, Inc. CAFI v. ADA Engineering, Inc. 2014-18551-CA-01 Miami-Dade AECOM Technical Services, CAFI v. AECOM Technical Services, Inc. Inc. CACE14014265 Broward Albeck Gerken, Inc. CAFI v. Albeck Gerken, Inc. 292014CA007732-A001 HC Hillsborough AES Engineering, Inc. CAFI v. AES Engineering, Inc. 2014-20160-CA-01 Miami-Dade AMEC Environment & CAFI v. AMEC Environment & Infrastructure, Infrastructure, Inc. Inc. CACE14014229 Broward A&P Consulting CAFI v. A&P Consulting Transportation Transportation Engineer Engineer 2014-20156-CA-01 Miami-Dade ATCI Communications, Inc. CAFI v. ATCI Communications, Inc. 2014-17813-CA-01 Miami-Dade RAS00000488 10. Atkins North America, Inc. CAFI v. Atkins North America, Inc. 292014CA007736-A001 HC Hillsborough 11. Avart Ammann & Whitney, CAFI v. Avart Ammann & Whitney, Inc. Inc. 2014-18549-CA-01 Miami-Dade 12. Barnes and Noble College CAFI v. Barnes and Noble College Booksellers, Booksellers, LLC LLC 292014CA007086-A001 HC Hillsborough 13. Bayard Advertising Agency, CAFI v. Bayard Advertising Agency, Inc. Inc. 502014CA006854 Palm Beach 14. Bluefield Ranch Mitigation CAFI v. Bluefield Ranch Mitigation Bank Bank [LLC] 5020 14CA008791 XXXXMBAF Palm Beach 15. Bora Building and Property CAFI v. Bora Building and Property Maintenance, Inc. Maintenance, Inc. 2014CA005254 NC Sarasota 16. Brannon & Gillespie, LLC CAFI v. Town of Gulfstream; and Brannon & Gillespie, LLC 502014CA006112XXXXMBAG Palm Beach 17. Cape Leisure Corp. CAFI v. Cape Leisure Corp. 05 2014 CA 038359 Brevard 18. Charter Schools Associates, CAFI v. Charter Schools Associates, Inc. Inc. CACE14007518 Broward 19. Charter Schools USA, Inc. CAFI v. Charter Schools USA, Inc. CACE14013939 Broward RAS00000489 20. Child Welfare Training CAFI v. Child Welfare Training Solutions, LLC Solutions, LLC CAGE 14016687 Broward 21. Coral West Adult Day Care, CAFI v. Coral West Adult Day Care, Inc. Inc. 2014-20001-CA-01 Miami-Dade 22. Cross Environmental CAFI v. Cross Environmental Services, Inc. Services, Inc. 5120 14CAOO 1861 CAAXWS Pasco 23. David J. Giannone, Inc. d/b/a CAFI v. David J. Giannone, Inc. d/b/a Complete Complete Marine Marine CACE14010850 Broward 24. Dewberry Engineers, Inc. CAFI v. Dewberry Engineers, Inc. 37 -2014-CA-002055 Leon 25. Dragados USA, Inc. CAFI v. Dragados USA, Inc. 37 -2014-CA-002054 Leon 26. Envirospec, Inc. CAFI v. Envirospec, Inc. 5020 14CA006655XXXXMBAH Palm Beach 27. Family Preservation Services CAFI v. Family Preservation Services of of Florida, Inc. Florida, Inc. 5620 14CAOO 1771 OCXXXX St. Lucie 28. Fifth Street Counseling CAFI v. Fifth Street Counseling Center, Inc. Center, Inc. CACE14010621 Broward 29. First Care Home Services, CAFI v. First Care Home Services, Inc. Inc. 2014-14378-CA-01 Miami-Dade 30. GEO Group, Inc. CAFI v. GEO Group, Inc. CAGE 14003628 Broward RAS00000490 31. Hubbard Construction, Inc. CAFI v. Hubbard Construction, Inc. 482014CA008210A0010X Orange 32. IBI Group, Inc. CAFI v. IBI Group, Inc. CACE14017517 Broward 33. Johnson's Excavation & CAFI v. Johnson's Excavation & Services, Inc. Services, Inc. 292014CA007288-A001 HC Hillsborough 34. JPM Management Services, CAFI v. JPM Management Services, LLC LLC 502014CA006659XXXXMBAO Palm Beach 35. Marine Exhibition Corporation CAFI v. Marine Exhibition Corporation 2014-23268-CA-01 Miami-Dade 36. Marks Brothers, Inc. CAFI v. Marks Brothers, Inc. 20 14-19990-CA-0 1 Miami-Dade 37. Metric Engineering, Inc. CAFI v. Metric Engineering, Inc. 2014-22139-CA-01 Miami-Dade 38. Pomcor Longview, LLC Pomcor Longview, LLC 502014CA005765XXXXMBAA Palm Beach 39. Psychological Assessment CAFI v. Psychological Assessment and and Treatment Services, LLC Treatment Services, LLC 292014CA007096-A001 HC Hillsborough 40. Psychological Management CAFI v. Psychological Management Group, Group, P.A. P.A. 2920 14CA008783-A001 HC Hillsborough 41. Ranger Construction CAFI v. Ranger Construction Industries, Inc. Industries, Inc. 502014CA009290XXXXMBAD Palm Beach RAS00000491 42. Robertson Consulting Group, CAFI v. Robertson Consulting Group, Inc. Inc. 2014CA003252 NC Sarasota 43. Royalaire Mechanical CAFI v. Royalaire Mechanical Services, Inc. Services, Inc. 522014CA006645-XXCICI Pinellas 44. Silver Seas Hotel, Inc. d/b/a CAFI v. Silver Seas Hotel, Inc. d/b/a Lighthouse Lighthouse Point Yacht & Point Yacht & Racquet Club Racquet Club CACE14014228 Broward 45. Stantec Consulting, Inc. CAFI v. Stantec Consulting, Inc. 2014-27013-CA-01 Miami-Dade 46. Sweetapple, Broeker & CAFI v. Sweetapple, Broeker & Varkas, P.L. Varkas, P.L. 5020 14CAO 11941 XXXXM BAH Palm Beach 47. Wantman Group, Inc. CAFI v. Wantman Group, Inc. 5020 14CA005771 XXXXM BAF Palm Beach RAS00000492 1. 2. 3. 4. 5. 6. 7. 8. 9. LIST OF CLASS MEMBERS (NOT-FOR-PROFITS) IN PUBLIC RECORDS LAWSUITS BROUGHT BY DEFENDANT CITIZENS AWARENESS FOUNDATION, INC. ("CAFI"l Name Style of Case, Case # & Name of County Academie Da Vinci Charter CAFI v. Academie Da Vinci Charter School, Inc. School, Inc. 522014CA003969-XXCICI Pinellas Alliance for Aging, Inc. CAFI v. Alliance for Aging, Inc. 2014-14354-CA-01 Miami-Dade Alpha Charter of Excellence, CAFI v. Alpha Charter of Excellence, Inc. Inc. 2014-12272-CA-01 Miami-Dade Area Agency on Aging of CAFI v. Area Agency on Aging of Central Central Florida, Inc. Florida, Inc. 482014CA005307 A001 OX Orange Area Agency on Aging of CAFI v. Area Agency on Aging of Palm Beach Palm Beach Treasure Coast, Treasure Coast, Inc. Inc. 502014CA006175XXXXMBAD Palm Beach Aspira of Florida, Inc. CAFI v. Aspira of Florida, Inc. 2014-19988-CA-01 Miami-Dade Behavioral Choices, Inc. CAFI v. Behavioral Choices, Inc. 20 14CA003546-000-00 Polk Broward Behavioral Health CAFI v. Broward Behavioral Health Coalition, Coalition, Inc. Inc. CACE14014605 Broward Cape Coral Preparatory and CAFI v. Cape Coral Preparatory and Fitness Fitness Academy, Inc. Academy, Inc. 14-CA-00 1301 Lee RAS00000493 10. Catholic Charities Diocese of CAFI v. Catholic Charities Diocese of Venice, Venice, Inc. Inc. 2014CA005187 NC Sarasota 11. Chautauqua Charter School, CAFI v. Chautauqua Charter School, Inc. Inc. 03 2014 CA 000597 Bay 12. Civilsurv Design Group, Inc. CAFI v. Civilsurv Design Group, Inc. 2014CA003477 -000-00 Polk 13. Excelsior Academies, Inc. CAFI v. Excelsior Academies, Inc. 2014-13439-CA-01 Miami-Dade 14. Expressions Learning Arts CAFI v. Expressions Learning Arts Academy, Academy, Inc. Inc. 01 2014 CA 001677 Alachua 15. Florida Atlantic University CAFI v. Florida Atlantic University CACE14007126 Broward 16. Florida Family Child Care CAFI v. Florida Family Child Care Home Home Association, Inc. Association, Inc. 5020 14CA0067 58XXXXMBAJ Palm Beach 17. Florida State University CAFI v. Florida State University Schools, Inc. Schools, Inc. 37-2014-CA-001328 Leon 18. Forza Education CAFI v. Forza Education Management, LLC Management, LLC d/b/a Gulf d/b/a Gulf Coast Charter Academy South Coast Charter Academy 112014CA001080 South Collier 19. Gardens School of CAFI v. Gardens School of Technology Arts, Technology Arts, Inc. Inc. 502014CA005448XXXXMBAJ Palm Beach RAS00000494 20. Homeless Coalition of Palm CAFI v. Homeless Coalition of Palm Beach Beach County, Inc. County, Inc. 502014CA006665XXXXMBAH Palm Beach 21. Human Services Associates, CAFI v. Human Services Associates, Inc. Inc. 4820 14CA00760 1 AOO 1 OX Orange 22. Learning Gate Community CAFI v. Learning Gate Community School School 292014CA004040-A001 HC Hillsborough 23. Lutheran Services Florida, CAFI v. Lutheran Services Florida, Inc. Inc. 292014CA007729-A001 HC Hillsborough 24. Manatee Glens Corporation CAFI v. Manatee Glens Corporation 41-2014-CA-004589-AX Manatee 25. Marco Island Academy, a CAFI v. Marco Island Academy, a Public Public Charter High School, Charter High School, Inc. Inc. Lee 26. Mascotte Elementary School, CAFI v. Mascotte Elementary School, Inc. Inc. 20 14-CA-000944 Lake 27. Miami's River of Life, Inc. CAFI v. Miami's River of Life, Inc. 2014-14356-CA-01 Miami-Dade 28. New Beginnings High School, CAFI v. New Beginnings High School, Inc. Inc. 2014CA001523-0000-00 Polk 29. Northeast Florida Area CAFI v. Northeast Florida Area Agency Agency Foundation, Inc. Foundation, Inc. 16-2014-CA-003503-XXXX-MA Duval 30. Nova Southeastern CAFI v. Nova Southeastern University, Inc. University, Inc. CACE14013157 Broward RAS00000495 31. Palm Beach County CAFI v. Palm Beach County Substance Abuse Substance Abuse Coalition, Coalition, Inc. Inc. 502014CA009300XXXXMBAD Palm Beach 32. Phoenix Programs of Florida, CAFI v. Phoenix Programs of Florida, Inc. d/b/a Inc. d/b/a Phoenix Houses of Phoenix Houses of Florida Florida 292014CA007789-A001 HC Hillsborough 33. Ramz Academy, Inc. CAFI v. Ramz Academy, Inc. 2014-11891-CA-01 Miami-Dade 34. Rising Leaders Academy, Inc. CAFI v. Rising Leaders Academy, Inc. 03 2014 CA 000594 Bay 35. River City Education CAFI v. River City Education Organization, Inc. Organization, Inc. 16-20 14-CA-003399-XXXX-MA Duval 36. Seniors First, Inc. CAFI v. Seniors First, Inc. 482014CA009153A0010X Orange 37. Stellar Leadership Academy, CAFI v. Stellar Leadership Academy, Inc. Inc. 2014-11938-CA-0 1 Miami-Dade 38. Team Success a School of CAFI v. Team Success a School of Excellence, Excellence, Inc. Inc. 41-2014-CA-004592-AX Manatee 39. The Hope Foundation for CAFI v. The Hope Foundation for Autism Autism 4320 14CA000465CA-AXMX Martin 40. The Seaside Playgarden, Inc. CAFI v. The Seaside Playgarden, Inc. 16-2014-CA-003337 Duval 41. UCP Transitional Learning CAFI v. UCP Transitional Learning Academy Academy 482014CA004302A001 OX Orange RAS00000496 42. Urban Oasis Project, Inc. CAFI v. Urban Oasis Project, Inc. 2014-13341-CA-01 Miami-Dade 43. Vision of Mater Academy, Inc. CAFI v. Vision of Mater Academy, Inc. 2014-21137-CA-01 Miami-Dade RAS00000497 1. 2. 3. 4. 5. 6. 7. 8. 9. LIST OF CLASS MEMBERS (STATE AND LOCAL MUNICIPALITIES AND AGENCIES) IN PUBLIC RECORDS LAWSUITS BROUGHT BY DEFENDANT CITIZENS AWARENESS FOUNDATION, INC. ("CAFI") Name Style of Case, Case # & Name of County Board of County CAFI v. Board of County Commissioners Commissioners Miami-Dade Miami-Dade County County 2014-3270-CA-01 Miami-Dade Broward County Sheriff's CAFI v. Broward County Sheriff's Office, et al Office CACE 14004038 Broward City of Aventura CAFI v. City of Aventura 2014-12657-CA-01 Miami-Dade City of Brooksville CAFI v. City of Brooksville 1400 1263CAAXMX Duval City of Dania Beach CAFI v. City of Dania Beach CACE14013189 Broward City of Dunedin CAFI v. City of Dunedin 522014CA006858-XXCICI Pinellas City of Fernandina Beach CAFI v. City of Fernandina Beach 14-CA-000214-AXYX Nassau City of Florida City CAFI v. City of Florida City 2014-3016-CA-01 Miami-Dade City of Madeira Beach CAFI v. City of Madeira Beach 522014CA005249-XXCICI Pinellas RAS00000498 10. City of Miami CAFI v. City of Miami 2014-4812-CA-01 Miami-Dade CAFI v. City of Miami 2014-5237-CA-01 Miami-Dade 11. City of Miami Beach CAFI v. City of Miami Beach 20 14-12658-CA-0 1 Miami-Dade 12. City of Tallahassee CAFI v. City of Tallahassee 37-2014-CA-001331 Leon 13. City of Tampa CAFI v. City ofTampa 292014CA005311-A001 HC Hillsborough 14. Department of Management CAFI v. Department of Management Services Services 3 7 -2014-CA-000992 Leon CAFI v. Department of Management Services 2014-4811-CA-01 Miami-Dade 15. Duval County School Board CAFI v. Duval County School Board 16-2014-CA-002695-XXXX-MA Duval 16. Florida Department of CAFI v. Florida Department of Agriculture Agriculture CACE14003605 Broward CAFI v. Florida Department of Agriculture CACE14003697 Broward CAFI v. Florida Department of Agriculture 2014-3703-CA-01 Miami-Dade RAS00000499 17. Jacksonville Aviation Authority CAFI v. Jacksonville Aviation Authority 16-20 14-CA-002858-XXXX-MA Duval 18. Miami Dade County CAFI v. Miami Dade County 2014-7299-CA-01 Miami-Dade CAFI v. Miami Dade County 2014-13602-CA-01 Miami-Dade 19. Miami Dade School Board CAFI v. Miami Dade School Board 2014-3018-CA-01 Miami-Dade 20. Miami Dade Water and Sewer CAFI v. Miami Dade Water and Sewer Dept. Department 2014-3078-CA-01 Miami-Dade 21' Office of the State Attorney, CAFI v. Office of the State Attorney, Fourth Fourth Judicial Circuit of Judicial Circuit of Florida Florida 16-2014-CA-002859-XXXX-MA Duval 22. Sarasota County CAFI v. Sarasota County 2014CA001576 NC Sarasota 23. Sheriff of Columbia County CAFI v. Mark Hunter, Sheriff of Columbia (Mark Hunter) County 122014CA000157 Columbia 24. South Florida Water CAFI v. South Florida Water Management Management District District 502014CA001392XXXXMBAG Palm Beach 25. Stellar Leadership Academy, CAFI v. Stellar Leadership Academy, Inc. Inc. 20 14-11938-CA-0 1 Miami-Dade RAS00000500 26. Town of Cutler Bay CAFI v. Town of Cutler Bay 2014-3271-CA-01 Miami-Dade 27. Town of Gulfstream CAFI v. Town of Gulfstream 5020 14CA003396XXXXMBAB Palm Beach CAFI v. Town of Gulfstream; and Brannon & Gillespie, LLC 502014CA006112XXXXMBAG Palm Beach CAFI v. Town of Gulfstream 502014CA006360XXXXMBAN Palm Beach 28. Town of Lake Park CAFI v. Town of Lake Park 5020 14CA008117XXXXMBAD Palm Beach CAFI v. Town of Lake Park 502014CA009099XXXXMBAB Palm Beach 29. Town of Miami Lakes CAFI v. Town of Miami Lakes 2014-3076-CA-01 Miami-Dade 30. Village of Bal Harbour CAFI v. Village of Val Harbour 2014-14807-CA-01 Miami-Dade 31. Village of Pine Crest CAFI v. Village of Pine Crest 2014-3727 -CA-01 Miami-Dade RAS00000501 Page 1 (Pages 1-4) Page 3 I 2 3 4 5 Page 1 IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUN'rY, FLOJ.U:DA. 1 TABLE OF CONTENTS 2 PAGE CASE NO.: 2014-CA-002839 3 JEFFREY MARCUS ORA Y JEFFREY G-RAY, 6 Plaintiff, 7 ' PRACTICAL ACADEMIC CULTURAL 9 EDUCATION CENTER FOR GIRLS, INC., 10 Defendant. ll ------------------------ 12 DEPOSITION OF JEFFREY MARCUS GRAY Taken on Behalf of the Defendant DATE TAKEN: August B, 2014 4 s 6 7 8 9 lO ll 12 l3 14 IS J3 14 IS 16 17 TIME: 2:00 PM -4:45 PM 16 PLACE: GrayRobinson, P.A. 17 " 19 20 ~~c~~~~~iti~~aF~~rict!u~~~oi 100 18 19 20 Zl 22 2J 24 25 Examination of the witness taken before: Cynthia Silverbet:g, Com:t Reporter l APPEARANCES 2 3 NICK TAYLOR, ESQUIRE 4 THEO'BOYLELAW FIRM, P.C. 5 1286 West Newport Center Drive Deerfield Beach, Florida 33442 6 7 8 9 10 Appearing on behalf of Plaintiff S. GRIER WELLS, ESQUIRE GRA YROBJNSON, P .A. II 50 North Laura Street, Suite 1100 Jacksonville, Florida 32202 12 l3 14 IS 16 17 18 19 20 21 22 23 24 2S Appearing on behalf of Defendant ALSO PRESENT: Ms. Mary Marx Page 2 21 22 23 24 25 l 2 3 4 s 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22 23 24 2S Direct Examination by Mr. Wells EXHIBITS 4 Defendanfs Exhibit No. 1 -Complaint Defendant's Exhibit No.2-Cert oflns. Defendant's Exhibit A -Settlement Offer CERTIFIED QUESTIONS Certified Question No. l Certified Question No. 2 Certified Question No. 3 ffiFFREY MARCUS ORA Y, 19 31 44 100 101 103 Page 4 having been produced and first duly sworn as a witness on behalf of the Defendant herein, was examined and testified as follows: DIRECT EXAMINATION BY MR. WELLS: Q Mr. Gray, would you give us the benefit of your full name, please? A My full name is Jeffrey Marcus Gray. Q And how do you spell Marcus? A M-a-r~c-u-s. Q Okay. And Jeffrey is J-e-f-f-r-e-y? A Correct. Q Grey, G-r-e-y? A G-r-a-y. Q Have you ever given a deposition before? A No. Q I'm sure you've had an opportunity to talk with Mr. Taylor. but I'm going to give you some instructions that may help us save some time today. I'll be asking you a number of questions related to the lawsuit you filed and some other things. Unless your attorney instructs you not to answer, you should answer all the questions. He may object from time to time. But, again, unless he instructs you not to Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000502 Page 2 (Pages 5-8) Page 5 Page 7 I answer, you should answer all the questions. If you I against PACE. 2 would, let me finish asking my questions before you 2 A I do not recall reviewing the complaint, no. 3 begin your ans""Wer and I'll try to let you finish your 3 Q There was a contract attached to the 4 answer before I begin my next question. 4 complaint. Did you review that contract, or any other 5 A Understood. 5 contract in prepamtion for this deposition? 6 Q Give a verbal response to roy questions as 6 A I have reviewed the contract that PACE has 7 opposed to nods or shakes of the head or huh-uhs and 7 with the State, yes. 8 uh-huhs. Those are kind of hard for the court 8 Q What is your understanding of who that 9 reporter to interpret, so yes, no or some other type 9 contract is with? !0 of verbal answer. IO A I believe the contract is with the II A Understood. II Department of Children and Families. Is that the one I2 Q If at any time you need to take a break, let I2 that it is? I believe that's the one it is. l3 me know. This is not an endurance contest and I3 Q You'll need to speak up so the court I4 generally I'll probably take a break on the hour. And I4 reporter can hear you. You believe the contract to be I5 we'll try to go roughly an hour and take a break and 15 with the Department of Children and Family Services? I6 then reconvene. I6 A Yes. I7 A Okay. I7 Q Okay. You indicated you had some phone 18 Q If you don't know the answer to a question, 18 calls with Mr. Taylor and have reviewed the video-~ a 19 obviously say you don't know. I'm not asking for I9 video --the video and reviewed the contract with the 20 speculation. There may be occasions when you may say, 20 Department of Children and Family Services. 2I I don't know, and I may ask you for your guess or 2I A If that's who they had the contract with. 22 something, but it's unlikely in the context of this 22 It's been a while back. It's been all the way back 23 case. All right? 23 since I made the request, so Ws been a long time 24 A Understood. 24 since I've seen it. 25 Q I know that you met briefly, just a few 25 Q Whatever contract there may be, that's the Page 6 Page a 1 minutes ago, with Mr. Taylor. Other than that I one you believe you reviewed? 2 meeting, have you done anything else to prepare for 2 A Yes, yes. 3 this deposition? 3 Q When did you review that? 4 A Oiher than just phone calls with Mr. Taylor, 4 A It's been way back when the request was 5 no. 5 actually made, before I went in to make the request. 6 Q Okay. Did you review any documents? 6 Q You have not reviewed it since you went in 7 A No. I reviewed a video, a video of his. 7 to make a request? 8 Q You reviewed a video. What video did you 8 A No, sir. 9 review? 9 Q Okay. Other than Mr. Taylor. have you IO A I reviewed a video where I submitted the IO spoken to anyone else about this deposition? II public records request to PACE. II A Have I spoken to anyone else about this I2 Q Mr. Taylor has provided me with a video. I I2 deposition? I have spoken to my friend, l3 have not really looked at it. So I may ask you from I3 Thomas Covenant, about this deposition and my wife. I4 time to time questions about that video. Other than 14 Q Thomas who? 15 that video, are there any other materials that you I5 A Thomas Covenant. And my wife. 16 reviewed? I6 Q How do you spell his last name? I7 A Other than that video, no. I7 A Covenant, C-o-v~e-n-a~n-t. I8 Q Did you review the complaint in this case? 18 Q Just like the covenant Moses had with the I9 A I believe Mr. Taylor sent me an email and I I9 children of Israel? 20 made a quick review of that. 20 A Yes, sir. 2I Q When would that have been? 2I Q Is Mr. Covenant--you said he1s your 22 A Are you speaking of the complaint; are you 22 friend. Is he the one who was with you when you went 23 talking about the complaint that was made againsi 23 to PACE? 24 PACE; is that what you're speaking of? 24 A Yes. 25 Q I'm talking about the lawsuit that was filed 25 Q When did you last speak with Mr. Covenant? Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000503 Page 3 (Pages 9-12) Page 9 Page ll I A This morning. I A Yes. 2 Q About this deposition? 2 Q Does she use them in any way in connection 3 A No. It was not about this deposition. 3 with her employment, if she's employed? 4 Q Did you and Mr. Covenant have any 4 A No. 5 conversation this morning about this deposition? 5 Q So you both use both of those email 6 A Not that I recall, no. 6 addresses? 7 Q Did you have any conversation this morning 7 A Yes. 8 with Mr. Covenant about what occurred when you and 8 Q Are those the only email addresses that you 9 Mr. Covenant were at PACE? 9 use? 10 A This morning? 10 A Yes. II Q Yes. ll Q Okay. Do you have a mobile telephone? 12 A No. 12 A Yes, I do. 13 Q When did you last have any conversation with 13 Q What is that number? I4 Mr. Covenant about your activities at PACE? I4 A The number to the phone? 15 A The last time I had a conversation with I5 Q Yes. I6 him? I can't specifically say when. I don't recall I6 A (904) 608-7960. I7 specifically the last time. 17 Q And who is the carrier for that line? 18 Q Are you known by any name other than by 18 A AT&T. 19 Jeffrey Marcus Gray? 19 Q Have you had that mobile phone number for-· 20 A Any other name? I am also know as Honor 20 bow long? 2I Your Oath. I do have a YouTube chaiU1el called Honor 21 A I can't recall how long I've had that. I'm 22 Your Oath. Yes. 22 not sure. 23 Q rm sorry? 23 Q Since all of20I4? 24 A Honor Your Oath. 24 A Yes. 25 Q But you said something after that. 25 Q All of2013? Page 10 Page 12 I A A Y ouTube channel. Honor Your Oath. I A I can't answer that. rm not sure. 2 Q Is that a name you use, as like an email 2 Q Has AT&T been your carrier the entire time 3 address, or Facebook, or a blog site, or anything like 3 you've had that particular phone number? 4 that? 4 A Yes. 5 A A blog site. It's a Y ouTube channel. 5 Q What is your resident address, Mr. Gray? 6 That's what it is. 6 A My residence is 1904 River Lagoon Trace, 7 Q Is that name copyrighted for you? 7 St. Augustine, Florida 32092. 8 A No. 8 Q How long have you lived there? 9 Q Any other names that you use? 9 A rve lived there since the beginning of 10 A No. 10 2009. II Q Do you have an email? II Q Were you in St. Augustine--the 12 A Yes. I2 St. Augustine area prior to moving to the River Lagoon 13 Q What's your email address? 13 address? I4 A The email address is tgray9937@hotmail.com, I4 A Yes, I was. 15 Q T-g-a-r-y? 15 Q How long have you been in St. Augustine? I6 A G-r-a-y. I6 A I believe I moved to St. Augustine the end I7 Q G-r-a-y. What does the T stand for? I7 of2005, the beginning of2006. 18 A Teresa. 18 Q Where were you prior to that? 19 Q That's your wife's name? I9 A I was in Jacksonville. 20 A Yes, sir. 20 Q How long had you lived in Jacksonville 2I Q Okay. Do you use any other email address or 21 before moving to St. Augustine? 22 any other email site? 22 A Pve lived in between Jacksonville and 23 A There's also tgray9937@comcast.net. That's 23 St. Augustine back and forth. I'm not precisely sure 24 my two emails. 24 what dates and times I've lived in either one, but 25 Q Does your wife also use those emails? 25 I've lived in the St. Augustine area since probably Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000504 Page 4 (Pages 13-16) Page 13 Page 15 1 '92 or '93, just back and forth between the two. I journalism and activism, can you tell me what you mean 2 Q Okay. And your wife is Teresa. Is that 2 by that? 3 T -e-r~e-s-a or T -h---3 A I contribute to a website called Photography 4 A That's correct; T -e. 4 Is Not A Crime. 5 Q How long have you all been married? 5 Q Called what? 6 A We've been married since 1999. 6 A Photography is not a crime. 7 Q So she-7 Q Okay. 8 A Correct that. We've been married since 8 A And activism, basically my main drive in my 9 1998. 9 activism is transparency in government, accountability 10 Q It's a good thing you corrected that. 10 in government. II A We had our first son in '99. II Q When you say you contribute to Photography 12 Q And you an have been married the entire 12 Is Not A Crime, what do you contribute? 13 time since 1998? 13 A I contribute video of news events. 14 A Yes. 14 Q What type of news events? IS Q And I think you said you've lived in the 15 A News events, just stuff happening on the 16 Jacksonville/St. Augustine area since 1992. 16 street, specifically events where police officers are 17 A Approximately, yes. 17 behaving badly. 18 Q You and your wife are both Georgia natives? 18 Q How do you come across these circumstances 19 A Yes. 19 of police officers behaving badly? 20 Q Where in Georgia? 20 A Just you can --you just get your video 21 A I was born in Atlanta and I believe she was 21 camera out and you film them in action and I just-- 22 born in Columbus~ Georgia. 22 they just behave bad. They don't like to be filmed. 23 Q Are you employed? 23 Q How do you know where to go to find them? 24 A I'm not employed right now. No. 24 A I don't know. I just stumble across them. 25 Q How long has it been since you were 25 Q Just random? Page 14 Page 16 I employed? I A Yeah, yeah. If you see a cop stop somebody, 2 A I worked at Winn-Dixie as a truck driver 2 I document what they do. And sometimes they react 3 from 1995 until2013. I believe I left Winn-Dixie in 3 negatively to that. 4 October of 2013. 4 Q Sometimes they what? 5 Q Why did you leave Winn-Dixie? 5 A They react negatively to that, yeah. 6 A To pursue a journalism activism career. 6 Q What kind of negative reaction do the police 7 Q Okay. So you've not had--strike that. 7 have? 8 After leaving Winn-Dixie in--you said October of 8 A They tell you to turn the camera off and 9 2013-9 tell you you can't film them, things like that. 10 A Approximately, yes. 10 Q Okay. Are those the only types of II Q --have you had any type of salaried ll contributions you make to Photography Is Not A Crime? 12 position anywhere? !2 A Yes. l3 A No. 13 Q Any other contributions? 14 Q How long were you employed by Winn-Dixie? 14 A No, no, other than --no, no. 15 A From April of'95 until October of2013, as 15 Q So all of your contributions to Photography 16 a truck driver. 16 Is Not A Crime relate to video of police officers 17 Q Who was your immediate supervisor at that 17 behaving badly? 18 Winn-Dixie? 18 A Police officers, public officials, other 19 A My immediate supervisor was Clay Turney. 19 public officials; not just police officers, but public 20 Q T-u-r-n-e-y? 20 officials in general. 21 A 1'-u-r-n-e-y, yes. 21 Q What other public officials have you filmed 22 Q Were you employed as a truck driver the 22 behaving badly? 23 entire time from '95 to 2013? 23 A What other public officials have I filmed? 24 A I was. 24 Let me think about that for a second. Just public 25 Q Now when you say you left to pursue 25 officials. Say when I go to submit a public records Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000505 Page 5 (Pages 17-20) Page 17 Page 19 I request or something like that at the mayor's office I right to know. Thafs the two main things of it 2 or --there are so many different situations, the 2 (The following question was certified.) 3 mayor's office, the SherifPs Office, different public 3 BY MR. WELLS: 4 agencies like that when I go to submit a public 4 Q Do you receive any income from either your 5 records request. 5 journalistic events with Photography Is Not A Crime, 6 Q Who are the principals behind Photography Is 6 or your mission ofTransparency In Government? 7 NotA Crime? 7 MR. TAYLOR: Objection. Irrelevant. 8 A The principles? Carlos Miller is the 8 BY MR. WELLS: 9 principle. 9 Q You can answer. IO Q Carlos Miller? lO A I believe that is irrelevant ll A Yes, sir. II Q With all due respect, that's not your call, I2 Q Is Photography Not A Crime incorporated? I2 Mr.Gmy. 13 A Is Photography Not A Crime incorporated? 13 MR. TAYLOR: Ifhe feelsthat irs 14 I'm not sure. You would have to ask Carlos about 14 irrelevant, that's his answer. He's certainly 15 that. rm not sure if it's incorporated or --15 free to answer the question. You may not get the 16 Q Where does Carlos Miller live? I6 answer that you want, but ifhe feels thafs 17 A Miami. I7 irrelevant -- 18 Q How did you and Mr. Miller srdrt doing !8 MR. WELLS: Mr. Taylor, how many depositions I9 business together? !9 have you been involved in? 20 A Mr. Miller and I--I believe he came across 20 MR. TAYLOR: I think that's irrelevant too. 21 one of my videos of a police officer that was telling 21 It doesn't matter how many I've been involved 22 me that it was illegal to film or something. I can't 22 in. 23 remember specifically, but it was generally that type 23 MR. WELLS: Certify the question. 24 of thing. He came across one of my videos where a 24 And be advised that if the judge overrules 25 police office was behaving badly and he published it 25 the objection one of you will pay the cost of Page 18 Page 20 I to Photography Is Not A Crime. I this deposition. Okay? 2 Q How many contributions have you made to 2 MR. TAYLOR: That's not necessarily--the 3 Photography Is Not A Crime? 3 judge makes that determination. Cany on. 4 A I ca!Ulot recall how many. I don't know. 4 BY MR. WELLS: 5 Q Can you give me a ballpark; are you talking 5 Q Have you filed income tax returns for the 6 ten, or a hundred, or a thousand? 6 last --since 2000? 7 A An approximate number, a ballpark number, 15 7 A Yes. 8 videos, stories, that he has written aboul 8 Q Is your wife employed outside the home? 9 Q Do you have an archive of those videos that 9 MR. TAYLOR: Objection. Irrelevant. 10 you have contributed to Photography Is Not A Crime? IO THE WITNESS: I believe that's irrelevant. 11 A I do. II I don't see how that has anything to do with the 12 Q Do you get paid for those contributions? I2 case. 13 A No. 13 BY MR. WELLS: 14 MR. TAYLOR: Objection. I4 Q One more time, Mr. Gray, that's not your 15 BY MR. WELLS: 15 call nor your attorney's. If he's instructing you not 16 Q You also indicated that you are involved in I6 to answer, that1S different, but then he bears the 17 activism related to transparency in government. I7 burden of that instruction. 18 A Correct. I8 MR. WELLS: Are you instructing him not to 19 Q Tell me what you mean by that. I9 answer? 20 A Transparency in government, basically what 20 MR. TAYLOR: I made my objection and he's 2I it boils down to is the right to film public officials 21 made his call on that; he's chosen not to 22 while they're performing their official duties; public 22 answer. I can't make him give you the answer 23 records access, to be able to access public records, 23 that you want. If you're asking again. I would 24 like with the public entities, to make sure that they 24 object to it as asked and answered. 25 are upholding our right to access public records, our 25 MR. WELLS: Mr. Taylor, may I make a Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000506 I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 (Pages 21-24) Page 21 Page 23 suggestion that you call one of your partners and I ask them if the way you're proceeding is the 2 appropriate way to proceed? I don't want to 3 disrupt the deposition. I don't want to 4 terminate it, but I'm not going to go through the 5 deposition and have you all answer it's not 6 relevant. 7 MR. TAYLOR: I'm simply making an objection 8 for the record. 9 MR. WELLS: You need to instruct your client 10 to answer the question unless you're instructing II him not to. 12 MR. TAYLOR: He's answered your question. I 13 can't-I don't know what you want me to do. 14 !viR.. WELLS: I want you to tell him to give 15 the factual information that I'm asking unless 16 you tell him not to answer. 17 MR. TAYLOR: I'm not telling him not to 18 answer. He's answered your question. I can't 19 make him give you the answer that you want him to 20 give you. I can't do that. That would 21 essentially be me testifying. I'm not the one 22 being deposed here. I mean, if you disagree, 23 you're free to go to Court and get a motion, you 24 lrnow, to compel, but--I mean, I'm perplexed at 25 Page 22 what you want me to do. I can't make him give 1 you the answer that you want. He's answered the 2 question the way he's answered it. 3 MR. WELLS: For the record, we are 4 attempting to reach Judge Norton to obtain a 5 ruling on the declination of Mr. Gray to answer 6 certain questions. 7 (Phone call was placed to Judge Norton.) 8 THE COURT: Hello. 9 MR. WELLS: Judge Norton. 10 THE COURT: How are you? II MR. WELLS: I'm fine. Thank you. How are 12 you? 13 THE COURT: I'm good. I have Mr. Wells and 14 Mr. Taylor on the phone? 15 MR. WELLS: Yes, you do. 16 THE COURT: Just to let you all know, I 17 pulled the case up and read-skimmed super fast 18 the complaint and the answer. I guess this is a 19 public records case or a Chapter 119? 20 MR. TAYLOR: That's correct. 21 MR. WELLS: That's correct, Your Honor. 22 THE COURT: Are y'all in the deposition, I 23 understand, right now? 24 MR. TAYLOR: Yes, ma'am. 25 MR. WELLS: We are. Your Honor, on behalf of the Defendant, Practice Academic Cultural Education Center for Girls--we call PACE--I am deposing the Plaintiff, Mr. Gray. We really have just gotten started and I started asking questions about his sources of income or whether he has received income from certain sources. And I also asked a question about whether his wife is employed outside the home. And Mr. Taylor objected on the basis of relevance, not on the basis of form. Whereupon, Mr. Gray testified that he did not believe the questions were relevant and would decline to answer. TilE COURT: All right. MR. WELLS: And it's our position that in a deposition relevance is not an issue. So before we --before I go much further and encounter further similar objections, I thought it might be best to get a ruling from the Court. THE COURT: And Mr. Taylor, what would your response to Mr. Wells be'? MR. TAYLOR: My response, Your Honor, is I made my objection based on relevance. As you know, the point of a deposition is to get Page 24 essentially all infonnation or all discovery that might lead to discoverable or admissible evidence. I objected based on the fact that we feel that's irrelevant, how much, if anything, is made for any public records request. It's a constitutional right. It's obviously guaranteed in our constitution, it's a right per Chapter 119. Mr. Gray has, in his opinion, answered that it's irrelevant. As you know, I guess-I mean, I can't instruct hlm to give a certain answer if there is an objection. He does have to answer; yes. It's undisputed, Your Honor. But I can't instruct him to give a specific answer; I can only instruct him that he has to answer the question. Even ifl do object, to instruct him to give a specific answer would be improper and it essentially would be my testimony instead of his. So that's my position, is that it's improper. THE COURT: I'm a little confused. By no means am I going to order a witness to answer a question in a certain way because obviously, you know, discovery is a seek for the truth~ to obtain information. So I have absolutely no Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000507 I 2 3 4 5 6 7 8 9 10 II I2 I3 I4 I5 I6 I7 18 I9 20 21 22 23 24 25 I 2 3 4 5 6 7 8 9 10 II 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 (Pages 25-28) Page 25 Page 27 interest in instructing Mr. Gray to answer-and 1 I'm having a hard time hearing you too, sir, but 2 I just want to let you know by no means am I 3 planning to tell Mr. Gray, Hey, you have to 4 answer this question in a certain way. And 5 that's why I'm a little confused, sir, by your 6 response. 7 MR. TAYLOR: By-I'm sorry. By my 8 response, Your Honor? 9 THE COURT: You seem to be under the 1 o impression --I mean, obviously there's a 11 differece between saying to Mr. Gray, Please 12 answer the question for Mr. Wells versus--maybe 13 I'm not understanding you, but you went into this 14 dissertation about how I can1t control what the IS witness says. And that's where I'm confused 16 because I don't think anyone is trying to get you 17 to tell Mr. Gray what to say. I think the issue 18 is: Does Mr. Gray have to truthfully answer the 19 question? I'm just a little confused, sir, by 20 what you're saying. 21 MR. TAYLOR: What I'm essentially saying, 22 Your Honor --and I'm sony for the confusion --23 THE COURT: That's okay. 24 MR. TAYLOR: --but what I'm saying is that 25 Page 26 make the determination may not be appropriate to be admitted in front of either myself or a bench trial or in front of a jury at some point. Now I am a little concerned that Mr. Gray is, you know, taking on a quasi legal role here in objecting. I mean, that's obviously inappropriate. Do you believe we need to get Mr. Gray in here for part of this dialogue so he'll understand what the Judge's rulings is, or do you think, Mr. Taylor, you can appropriately conununicate that to him? MR. TAYLOR: I was going to say Mr. Gray is right here. THE COURT: Oh, I didn't know he was there. Hi, Mr. Gray. I didn't know you were there. I'm Judge Norton. I hope you're having a good day. THE WITNESS: Hi, Judge. How are you? I'm having a good day. THE COURT: I'm good; I'm good. So what! just need to do, Mr. Gray, you've heard my ruling. I'm glad you were in there. And I just--from what--you know, if at some point --I'm going to be here all afternoon --if at some point there's another line of questioning that you find inappropriate, I'm happy to talk to Page 28 I made my objection and --I objected and I everyone. But right now, those are fair Mr. Gray did answer the question, but he feels that-- THE COURT: Who is he? MR. TAYLOR: Mr. Gray, my client. Mr. Gray feels that his answer --this is not verbatim --but he's saying that's not relevant and I choose not to answer that question. And I guess the issue here is whether that is an appropriate response by Mr. Gray under the circumstances. THE COURT: Well, Mr. Gray, is Mr. Gray a member of the Florida Bar? MR. TAYLOR: He is not. THE COURT: And you are his counsel of record? MR. TAYLOR: That is correct. THE COURT: Let me just tell you how !look at discovery. I think that Mr. Wells has--I would agree with him on this issue of relevancy at this point. Obviously, I'll reserve for another day to determine if this line of questions --if that type of infonnation would be admissible at trial because obviously things that can be discovered that ultimately the judge may 2 questions. And then ultimately I will make the 3 decision later whether or not they're 4 admissible. But Mr. Gray, from the questions 5 that Mr. Wells has told me, sir, you do need to 6 answer those questions, please. All right? 7 THE WITNESS: Okay. Understood. 8 THE COURT: I'll be here all afternoon. 9 This is my job, to handle things like this, so IO give me a call if you need me. Okay? 11 THE WITNESS: Okay. Thank you. 12 MR. WELLS: Thank you very much, Your 13 Honor. 14 THE COURT: Have a great day. I'm going to 15 hang up. Bye-bye. 16 (Phone call ended.) 17 BYMR. WELLS: 18 Q Mr. Gray, given Judge Norton's rulings, let 19 me pose the question one more time. From your 20 activities with Photography Is Not A Crime and your 21 activities seeking Transparency In Government, have 22 you derived any income? 23 A I have not derived any income from 24 Photography Is Not A Crime. I have derived income 25 from my Y ouTube channel. Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000508 Page 8 (Pages 29-32) Page 29 Page 31 I Q From what? I Q Axe the settlements paid to you, or are they 2 A YouTube channel. 2 paid to your attorneys and then from the attorneys to 3 Q Honor Your Oath? 3 you? 4 A Correct. 4 A They are paid to the attorneys and then to 5 Q Have you derived any income from any of the 5 me. 6 activities in seeking public records? 6 Q Okay. Is that -are those settlements a 7 A Have I derived any income from~~ no. 7 percentage of what the attorneys get? 8 Q Your Y ouTube site, Honor Your Oath ~~ 8 MR. TAYLOR: I would have to object to 9 A Yes, sir. 9 that. That has to do with our --any fee IO Q --how do you derive income from that? IO agreements that we have and that's II A Through monetization of the videos. II attorney/client privilege. So I have to instruct 12 Q Do you sell those; do people access them; do I2 him-- l3 they pay a fee? I3 MR. WELLS: You're seeking attorneys' fees I4 A When you monetize a video on Y ouTube, what I4 in this case, so it's not privileged. I5 you do is, when you publish it, you can click on the I5 MR. TAYLOR: But you're talking about fees I6 selection that gives you the opportunity to monetize 16 in the past. There's been no settlement here. 17 videos. I click on that and ask You Tube to monetize I7 So, again, you're asking him whether there was a I8 it for me. If they approve the video for 18 settlement in the past and the percentage that -- 19 monetization, what they do is they overlay ads on the 19 MR. WELLS: No. I'm asking if his source of 20 videos. And then you get a percentage per view of the 20 income from these settlements is a percentage. 21 ads. 2I He's already said that the fees come from you. 22 Q So when somebody clicks on that Y ouTube 22 (The following question was certified.) 23 site, if you will, and YouTube is running ads for each 23 BY MR. WELLS: 24 person who views that site, Y ouTube sends you a 24 Q Do the -the complaint that you filed in 25 percentage -or some money? 25 this case against PACE does not seek damages; it only Page 30 Page 32 I A Per views, yes. lt1S a certain I seeks attorneys' fees. Do you get -~ in these 2 percentage --I'm not sure exactly what the percentage 2 lawsuits that you filed, do you get a portion of the 3 is --per view. 3 attorneys' fees that are paid to your attorneys? 4 Q And you've been doing that since October of 4 MR. TAYLOR: Again. I would have to object. 5 2013? 5 That has to do with our fee agreements. That's 6 A No. I've been doing that--I can't recall 6 attorney/client privilege. 7 exactly when I started monetizing videos. Sometime in 7 MR. WELLS: Aie you instructing him on that 8 2013 is when I started monetizing them. 8 one? 9 Q My question was poor and I apologize. That 9 MR. TAYLOR: I am on that one. Yes. 10 has been your sole source of income since October of IO MR. WELLS: Certify the question, if you II 2013? II would, I2 A My sole source of income since October of 12 BY MR. WELLS: 13 2013? No. I3 Q I had also asked you if your wife was 14 Q What other sources of income have you had I4 employed outside the home. IS since you left Winn-Dixie? I5 A Are you saying is she employed outside the 16 A When I left Winn-Dixie, I cashed in my I6 home? 17 40l(k) and I lived off that for a while. And! also, 17 Q Yes. 18 through public records requests, I do receive 18 A No. 19 settlements. 19 Q Does she work in the home other than in her 20 Q You receive settlements? 20 role as a wife and mother? 21 A Yes. 2I A She sells items on Ebay. Other than that, 22 Q From whom? 22 no. 23 A Whatever vendor that I sue, 23 Q Okay. Is she involved in any way in your 24 Q Whatever vendor you sue? 24 contributions to Photography Is Not A Crime or your 25 A Yes. 25 Transparency In Government activities? Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000509 Page 9 (Pages 33-36) Page 33 Page 35 1 A No. Other than just being my wife and 2 supporting me, no. 3 Q Does she ever accompany you on any trip you 4 make to request public records? 5 A Not that I recall. 6 Q Was there anything in your employment with 7 Wino-Dixie that caused you to leave as opposed to your 8 wanting to make contributions to Photography Is Not A 9 Crime and Transparency In Government? l 0 A I'm not sure what you mean by that. 11 Q Did you have any issues on the job, any 12 issues with your supervisor, any complaints about your 13 work at Winn-Dixie? 14 A No. I left on good tenus. 15 Q Sir? 16 A I left on good tenns. 17 Q Again, my question is: Did you have any 18 issues at work? You may have left on good tenus, but 19 did you have problems on the job in any way? 20 A No. 21 Q You've mentioned that you randomly find 22 police officers behaving badly. Have you ever been 23 arrested? 24 A I've been arrested twice. 25 Q Where? Page 34 1 A I was arrested in Brevard County and I was 2 arrested in Bradford Collllty. I believe that's where 3 Lawtey is. I was arrested by the Lawtey Police 4 Depar1ment. 5 Q Have you ever been convicted of any crime - 6 A No. 7 Q --other than minor traffic offenses? 8 A No. 9 Q Were the arrests in Brevard County and in 10 Lawtey related to your filming police officers? 1 1 A Yes, they were. 12 Q Was the filming of your own arrest posted or 13 sent to whatever--Photography Is Not A Crime? 14 A It was --I post my videos on Y ouTube. And 15 if Carlos Miller is interested in the videos, he1H 16 contact me and ask me if he can publish them on 17 Photography Is Not A Crime, so he just gets the link 18 offthe YouTube. 19 Q Do you know Mr. Miller1s address? 20 A I don't know his address off the top of my 21 head. 22 Q Do you know an email address for him off the 23 top of your head? 24 A No. I have it on my phone. I can get it 25 off my phone. Q If you don't mind. 2 A It is carlosmiller ~-all one word-- 3 c-a-r-l~o-s-m-i-l-1-e-r@magiccity. It's 4 @magiccitymedia. 5 6 Q Magiccity@magiccitymedia? A Yes. 7 Q Thank you. Okay. Mr. Gray, in addition to 8 the lawsuit you have filed against my client, 9 Practical Academic Cultural Education Center for 10 Girls, Inc. ~-is it okay with you if we refer to !.hat 1l as PACE-- 12 A Yes. 13 Q --so that throughout the deposition, if! 14 refer to PACE, you'll know I'm referring to that 15 entity, okay? 16 A Understood. 17 Q In addition to your lawsuit against PACE, 18 have you filed suits against any other entities 19 related to your transparency in government mission? 20 MR. TAYLOR: Objection to form. 21 THE WITNESS: Yes, I have. 22 BY MR. WELLS: 23 Q Do you know how many? 24 A I don 1t recall how many. no, not off the top 25 of my head. Page 36 I Q Can you give an estimate somewhere; is it 2 I 0, 20, 30, 40? 3 A An estimate, 30. 4 Q Okay. Do you recall the date--approximate 5 date of the frrst one that was filed in your name? 6 A Do I recall the approximate date of the 7 first one that was filed in my name? No, I don't. 8 Q To your knowledge, have all of the 9 approximate 30 lawsuits that you have filed been filed 10 in calendar year 2014? 11 A Yes. 12 Q Can you tell me approximately how many you 13 have filed in Duval County? 14 A Approximately in Duval County? 15 Approximately eight. I don't have that information in 16 front of me. 17 Q YouresideinSt.JobnsCounty. Haveyou 18 filed any there? 19 A In St. Johns County? No. 20 Q Can you tell me what other counties besides 21 Duval you have filed lawsuits in? 22 A Ones that --let's see. I know that I've 23 filed in DuvaL I know that I've filed in Broward 24 County. No; I can't recall off the top of my head. 25 Q You say you filed in Duval and you think you Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000510 Page 10 (Pages 37-40) Page 37 Page 39 1 filed in Broward? 2 A Yes. 3 Q Do you know if you filed any in Flagler 4 County immediately south of St. Johns? 5 A I'm not sure. I'm not sure which ones I 6 filed. I would have to access my information. I 7 don't have that with me, my files. 8 Q Okay. Are the lawsuits that you have 9 filed ~-approximately 30, all in calendar year 10 2014 --based on your personal visit to offices where II requests for public records are made? 12 A Yes. 13 Q So all of the lawsuits you filed involve 14 requests for public records? 15 A Yes. 16 Q Other than public records lawsuits, have you 17 filed any other lawsuits in the calendar year 2014? 18 A Not that l recall, no. I9 Q Have you been involved in any lawsuits at 20 any time in the last ten years other than the public 21 records lawsuits that you've identified? 22 A No. 23 Q Now you indicated earlier that the contract 24 that you had reviewed in connection with PACE you 25 believe was from the Department of Children and Family Page 38 I Services or something like that. Do you know how many 2 of your lawsuits involve that particular agency? 3 A Not that I recali, not specifically; no, not 4 off the top of my head. 5 Q Do you know the names of any other agencies 6 who had contracts with entities, such as PACE or other 7 entities, which formed the basis of your lawsuits? 8 A You're speaking agencies, the state 9 agencies? !0 Q Yes. II A I filed with agencies ofFDOT, Department of 12 Children and Families, Department of Health. 13 Q Okay. 14 A That's the ones I can think of right now 15 that I filed. 16 Q Okay. Letmegobackamoment. Your 17 decision to leave Winn-Dixie and to get involved in 18 journalism, with Photography Is Not A Crime and 19 transparency in government, was there some type of 20 event or circumstance that led you to do that, 21 something that happened to you or that happened to 22 someone else that you were close to? 23 A No. Just the passion that I have for the 24 activism that I'm pursuing, the accountability of 25 government. I Q Okay. It's just something that just 2 developed naturally? 3 A Yeah. Civil rights, access to public 4 records and transparency in government, the right to 5 film government officials. 6 Q I guess perhaps another way to ask it is: 7 Were you attempting to either obtain a public record 8 or film a government official and you were restricted 9 in some fashion and that led you to want to do this on 10 a full-time basis? 11 MR. TAYLOR: Objection. Asked and answered. 12 THE WITNESS: I'm sorry. 13 MR. TAYLOR: My objection was asked and 14 answered. 15 16 17 18 19 20 21 THE WITNESS: There was no specific event, no. Just like I said, it's just general ~-you lmow1 the right to know what's going on in government, the right to film government officials doing their jobs and transparency and accountability, where the money is going, what's going on with it. 22 BY MR. WELLS: 23 Q Were you involved in those activities prior 24 to your departure from Winn-Dixie? 25 A Yes. Page 1 Q For how long? 2 A I started my YouTube channel in 2011. And 3 that's about how long, since about 2011, so my 4 activities started roughly the same time that my 5 Y ouTube channel started, 2011. I believe it was 6 January of2011. 40 7 Q And your YouTube channel is Honor Your Oath? 8 A That's correct. 9 Q And you can think of no event or 10 circumstance that led you to start that other than II your interest in government responsibility? 12 MR. TAYLOR: Again, objection. Asked and 13 answered. 14 THE WJTNESS: Yes. 15 BY MR. WELLS: 16 Q Pardon me? 17 A Yeah. Just general. 18 Q I've asked you about a number of lawsuits. 19 Is Mr. Gray-~ Mr. Taylor's firm representing you in 20 all of those lawsuits? 21 A No. 22 Q Of the approximately 30 that you think you 23 may have filed, how many is his law firm involved in? 24 A Approximately-approximately 25 to 30. 25 Q How many other law firms are representing Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000511 Page 11 (Pages 41-44) Page 41 Page 43 I you in your public records litigation? I Q You said Rayne. Is that Ring? 2 A One other law finn is representing me. 2 A Rayne. I'm not sure how to spell his last 3 Q And who would that be? 3 name. Bill Rayne. 4 A That would the Abraham Shakfeh Law Finn. 4 Q Anyone else? 5 Q Where is he located, or that law firm -is 5 A There are, but I can't recall their names. 6 that one name? 6 Q Have you been to the offices of the 013oyle 7 A Abraham is his first name. Shakfeh is his 7 Law Finn? 8 last name. 8 A I have. 9 Q Abraham Shakfeh is the name of an 9 Q How many times'! 10 individual? 10 A Three, maybe four times. II A Correct. II Q In your lawsuit that you filed against PACE, 12 Q Can you speU Shakfeh for this lady? 12 one of the claims you're making is for attorneys' 13 A Just a second. Shakveeh (sic) is spelled 13 fees. You've indicated earlier that you get some 14 S-h-a-k-v-e-e-h. 14 income from the settlements. Do you know of any of 15 Q S-h-a-k-v--15 the lawsuits filed on your behalf in which you have 16 A E-e-h. 16 sought damages for yourself other than through 17 Q Okay. Thank you. Other than Mr. Taylor. is 17 attorneys' fees? 18 there anybody in the O'Boyle Law Finn that is working 18 A Yes. 19 with you on any of these cases? 19 Q Which ones? 20 A Yes. 20 A I can't recall specifically which ones off 21 Q Who would that be? 21 the top of my head. I'm not sure which ones; I'm not 22 A Giovanni Mason. 22 sure. I would have to have my files in front of me to 23 Q Did you approach the O'Boyle Finn to 23 be able to see that. 24 represent you., or did they approach you? 24 Q Okay. So you have a file with all of the 25 A I approached them. 25 lawsuits in them? Page 42 Page 44 I Q How did you know about the O'Boyte Law Finn? I A Yes, yes. 2 A How did I know about the O'Boyle Law Finn? 2 Q You maintain that file in St. Augustine? 3 Through a friend of mine. 3 A l do. 4 Q Who is that? 4 Q And so you believe that in that file you 5 A Joel Chandler. 5 have a copy of each complaint in which you have sought 6 Q How do you Imow Joel Chandler? 6 damages for yourself that's set forth in those 7 A Joel Chandler is a good friend of mine. He 7 complaints? 8 is equally passionate about open government, open 8 A Yes. I believe so. 9 records transparency. 9 Q Okay. Do you have a written fee agreement 10 Q I apologize. Did you give me the name of 10 with the O'Boyle Law Firm and Mr. Shakfeh? II somebody else in the O'Boyle Law Finn? 11 A I have a written fee agreement with Shakfeh 12 A Giovanni Mason. 12 and I do with ~M yes -M O'Boyle. 13 Q Okay. You did. I'm sorry. Do you know, 13 Q Is that for each lawsuit, or is that just a 14 between Mr. Taylor and Mr. Mason, how many lawsuits 14 standard fee agreement? 15 they are representing you on; how many is Mr. Taylor 15 A It is a standard fee agreement 16 representing you and how many Mr. Mason is 16 Q So you don't have approximately 30 different 17 representing you? 17 fee agreements with them? 18 A I do not. I don't know specifically. 18 A No. 19 Q Do you request a specific attorney? 19 (The following question was certified.) 20 A No, I do not. 20 BY MR. WELLS: 21 Q Who else in the O'Boyle Law Finn have you 21 Q Is your arrangement with your attorneys on 22 communicated with? 22 an hourly basis? 23 A Who else in the--the receptionist, 23 MR. TAYLOR: l would object to thal 24 Beth Kanaly; Nick Taylor; Giovanni Mason; Bill Rayne 24 Whether it is or notj that's attorney/client 25 (phonetic). 25 privilege. It has to do with our fee agreement Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000512 Page 12 (Pages 45-48) Page 45 Page 47 I with Mr. Gray. 2 MR. WELLS: Mr. Taylor, you're seeking 3 attorneys' fees in this case. And in order to 4 prove any attorneys' fees, you're going to have 5 to prove how you get them. So if you want to 6 object now and instruct him not to answer, that's 7 fine, but we will then object to your seeking 8 attorneys' fees in the unlikely event you prevail 9 in this case. I o MR. TAYLOR: The attorneys' fees are II provided for by Chapter 119. But that aside, 12 yes; I am instructing my client not to answer l3 based on the fact we object based on l4 attomey/cHentprivilege. I5 MR. WELLS: Okay. Would you certifY that 16 question? 17 BY MR. WELLS: I8 Q In connection with--strike that. Of the 19 approximately 30 lawsuits that you have filed, you've 20 indicated this is the first deposition you've ever 21 given. 22 A Thafs correct. 23 Q So do I assume from that that you have not 24 given a deposition in any of those other cases? 25 A No, I have not. Page 46 l Q Have any of those other cases gone to trial? 2 A No. 3 Q Of the approximately 30 cases that have been 4 filed on your behalf, can you tell me approximately 5 how many of them have settled? 6 A Approximately how many of them settled? 7 Approximately --I'd say about six --between six and 8 eight have settled. 9 Q In Duval County, can you tell me--I think I 0 you said approximately eight have been filed here. II Can you tell me bow many in Duval County have settled? 12 A Duval County? Two. 13 Q Okay. Doesyour--strikethat. In I 4 connection with any of the lawsuits that you have 15 filed in which the O'Boyle Finn has represented you, 16 have you made payment for attorneys' fees to the firm? 17 A No. 18 Q Of those cases that have settled, can you 19 tell me how many of them involve claims by you for 20 damages other than for attorneys' fees? 21 A I'm sorry. 22 Q Of those cases you believe have settled, can 23 you tell how many of them settled with a payment of 24 damages to you as opposed to a settlement based on 25 attomeys1 fees? 1 A I don't recall specifically, no. 2 Q In connection with your activities and 3 seeking public records from different entities, aside 4 from whatever payments you may get out of the 5 settlements, do you get reimbursed for any expenses? 6 A No. 7 Q You don't get mileage or airfare -- 8 A No. 9 Q --or anything like that? How are the 10 payments that you get from the settlements -strike It that. How do you document payments you get from these 12 settlements? 13 A How do I document? 14 Q Yes, sir. Do you have Quickbooks; do you 15 have any kind of a journal; do you have a ledger that 16 you maintain records of whatever you receive? 17 A My recordkeeping is pretty sloppy, to be 18 honest with you. I have a folder at home where I keep 19 the check and I just write down which vendor settled 20 and I put it in a folder. 21 Q Okay. Are your activities in seeking public 22 records from different agencies --and I think you 23 used the word vendors --do you work with someone? 24 You mentioned Mr. Covenant. Is there anybody else 25 other than Mr. Covenant that you worked with when Page 48 1 you- 2 A What you do mean by work with? 3 Q When you go to an agency or to a vendor, are 4 you always accompanied by someone? 5 A Not always, no. 6 Q What percentage of the cases that you've 7 been involved in have you been accompanied by someone? 8 A A percentage? I would say the majority of 9 the cases that rve been involved in someone is 10 usually with me. 11 Q Okay. Ofthoseinwhichyouhavebeen 12 accompanied, how many of those have been Mr. Covenant? 13 A I don't know. I haven't kept track of that 14 Q Where does Mr. Covenant live? 15 A He lives in Jacksonville. 16 Q Do you know his address? 17 A It's one of those things I know where he 18 lives, but I don't know his street address. No, sir; 19 I do not. 20 Q Is there anyone in the Jacksonville area, 21 other than Mr. Covenant, who has accompanied you on 22 any of your trips in which you have requested public 23 records? 24 A In the Jacksonville area? Not that [ 25 recall. Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000513 Page 13 (Pages 49-52) Page 49 Page 51 l Q Can you give me the name of anyone else in I Q Yes. 2 any other area who has accompanied you on your trips 2 A I do not. 3 for requests for public records? 3 Q Do you know if Mr. Chandler has been the 4 A In any other area? Joel Chandler, 4 plaintiff in any cases of public records in which the 5 Carlos Miller. 5 O'Boyle finn is representing him? 6 Q Okay. Where does Mr. Chandler live? 6 A I believe he has. Yes. 7 A Mr. Chandler lives in Lakeland, Florida. 7 Q Speaking of Mr. Chandler, are you familiar 8 Q To your knowledge, do individuals like 8 with the Citizens Awareness Foundation? 9 Mister --strike that. On any of the public records 9 A Yes. 10 requests that you have been on, has the interaction 10 Q Okay. Do you play any role in the Citizens 11 with the government agency or vendor been by you 11 Awareness Foundation? 12 primarily, or are there occasions in which 12 A No. 13 Mr. Covenant or Mr. Chandler or Mr. Miller has 13 Q You're not employed by the Citizens 14 actually made some public records requests? 14 Awareness Foundation? 15 A The majority of the time, it is usually 15 A No. 16 myself or Joel Chandler. I believe Mr. Covenant has 16 Q You're not on the board of directors? 17 requested records -I'm not sure how many times --17 A No. 18 but it's usually Mr. Chandler or me that does the 18 Q You're not a founder of Citizens Awareness? 19 public records request. 19 A No. 20 Q Has Mr. Chandler been involved in any public 20 Q You don't receive any compensation from 21 records requests in Duval County? 21 Citizens Awareness? 22 A Yes. 22 A No. 23 Q Which one? 23 Q Is Mr. Chandler involved with Citizens 24 A I'm not for sure. You mean with me? 24 Awareness? 25 Q Yes, with you. 25 A I believe Mr. Chandler has resigned from Page 50 Page 52 1 A Which one? I would have to access my I Citizens Awareness. 2 records to see which ones. He was not with me with 2 Q What did he resign from; was he employed by 3 PACE. 3 Citizens Awareness or -- 4 Q What kind of records do you maintain that 4 A I believe he was employed, yes. 5 would show you whether Mr. Chandler was with you on 5 Q Do you know where the offices of Citizens 6 any given occasion. or Mr. Covenant, or Mr. Miller? 6 Awareness is? 7 A Well, the videos show whether he was with me 7 A I do not 8 or not. 8 Q Sir? 9 Q Videos, multiple? 9 A Somewhere in Miami, I believe, Deerfield or 10 A Yes. 10 Miami. ll Q Do you video each request you make? ll Q Have you ever been to those offices? 12 A !do. 12 A No. I have not been to Citizens Awareness 13 Q Do you know if on those occasions in which 13 offices, no. 14 Mr. Covenant accompanies you but does not--is not 14 Q I apologize. I'm old. My sight's good, but 15 the one who actually makes the request, does 15 my hearing's not very good. If you could speak up !6 Mr, Covenant get some type of compensation for his 16 just a little bit. 17 work? 17 A I have not been to Citizens Awareness 18 A No. 18 offices as far as I know unless ... 19 Q Do you know if any lawsuits have been filed !9 Q But you have been to the offices of the 20 in Mr. Covenant's name? 20 O'Boyle Law Firm? 21 A I do not. No. 21 A Right. 22 Q Do you know if any lawsuits have been filed 22 Q Do you know who founded Citizens Awareness? 23 in Mr. Miller's name? 23 A The founder of Citizens Awareness? 24 A Mr. Miller's name regarding public records 24 A No. 25 specifically? 25 Q Do you know anybody who does serve on the Georgia Winegeart 301 West Bay Street, Suite 1450, & Associates Jacksonville, Florida 32202 RAS00000514 Page 14 (Pages 53-56) Page 53 Page 55 1 board of directors of Citizens Awareness? 1 A I believe--I'm thinking it was last 2 A Do I know anybody who serves on the board of 2 month. It was sometime in July. I'm not sure exactly 3 directors of Citizens Awareness? I don't know who the 3 when. 4 board of directors are for Citizens Awareness. 4 Q Do you know why he resigned? 5 Q And you currently have no agreements that 5 A rm not really sure why. I think he made a 6 you're aware of with Citizens Awareness Foundation? 6 statement on FOG Watch about it. 7 A No, no. 7 Q On FOG Watch? 8 Q Have you ever had any type of agreement or 8 A Yes sir. 9 formal relationship with Citizens Awareness? 9 Q F-o-g W-a-t-c-h? 10 A No. 10 A Ifs an acronym for Florida Open Government. ll MR. WELLS: We'll take about a 10-minute ll Q Okay. Did you read the statement he made on 12 break. 12 FOG Watch? 13 (Brief break.) 13 A I did. I believe it said something about 14 BY MR. WELLS: 14 there was differences, irreconcilable differences, I 15 Q I meant to ask you, Mr. Gray-· you 15 believe, was what it was in the goals that were set. 16 indicated you were introduced to the O'Boyle Firm by 16 But other than that, I'm not really sure. 17 Mr. Chandler. 17 Q Irreconcilable differences in the goals that 18 A Uh-huh. 18 were set? 19 Q How did you meet Mr. Chandler? 19 A Yes. 20 A I met Mr. Chandler at Firehouse Subs on 20 Q Have you had any conversations with 21 Beach Boulevard. We had --I had admired his work 21 1vrr. Chandler about resigning from Citizens Awareness? 22 with FOG Watch, Florida Open Government Watch. 22 A No. 23 Contacted him by email. He was in Jacksonville 23 Q Were you aware, prior to his resignation, 24 visiting his brother, I believe is what it was. And 24 that he was --that there were irreconcilable 25 he admired my work and what I did on YouTube, so we 25 differences? Page 54 Page 56 1 met at Firehouse Subs and had lunch. 1 A No, not really, no. 2 Q When? 2 Q How often did you and Mr. Chandler speak? 3 A When? About--I'm just not sure exactly 3 A How often did we speak? We'd speak, you 4 when it was) but it was 2013, around June of2013 or 4 know, once every two weeks or something. 5 so. 5 Q Before he resigned, did you speak every two 6 Q Okay. Did Mr. Chandler ever suggest to you 6 weeks or so? 7 that you leave Winn-Dixie and take up Photography Is 7 A Yeah. 8 Not A Crime and transparency in government--8 Q Since he's resigned, have you spoken every 9 A No. 9 two weeks or so? 10 Q --as full-time --10 A Yes. 11 A No. l1 Q And you've not had a conversation about why 12 Q Did Mr. Chandler introduce you to 12 he resigned? 13 Mr. Abraham Shakfeh? l3 A No. He doe."in't real1y want to talk--get 14 A Yes. 14 into any specifics about it or anything like that. 15 Q Do you know if there's any type of 15 He's mentioned that he resigned, but he hasn't 16 relationship or arrangement that you're aware of 16 expressed any details as to why or anything like that. 17 between Mr. Shakfeh and the O'Boyle Firm? 17 Q Do you know what he did with Citizens 18 A No. 18 Awareness Foundation? 19 Q You indicated that Mr. Chandler had resigned 19 A Mr. Chandler was --I believe he was the 20 from Citizens Awareness. 20 chairman of Citizens Awareness Foundation. 21 A Correct. 21 Q Okay. Chainnan? 22 Q I may have asked you --if! did, I 22 A I believe so. I'm not really sure. 23 apologize--do you know when? 23 Q Okay. I think you said you thought Citizens 24 A Do I know when? 24 Awareness was somewhere near Miami. 25 Q Yes, sir. 25 A Uh-huh. Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000515 Page 15 (Pages 57-60) Page 57 Page 59 I Q And Mr. Chandler lives in Lakeland? I A No, 2 A Correct 2 Q Tell me how you do a search. How did you 3 Q Did he go to the offices of Citizens 3 find the contract involving PACE? 4 Awareness to work, or do you know? 4 A The contract involving PACE, Thomas found 5 A I believe he traveled, yes, between his home 5 it --Thomas Covenant found it. He sent it to me by 6 and Miami. 6 email. And we looked at it and it was in 7 Q Okay, Is Mr. Chandler, to your knowledge, 7 Jacksonville, so it was close by. Thomas found it for 8 still involved in public records requests? 8 me. 9 A Yes, he is. 9 Q And he sent it to you by email? 10 Q Do you know if he is represented in any way 10 A Correct 11 currently by the O'Boyle Finn? 11 Q Other than Mr. Covenant, has anyone else 12 A I do not know. 12 ever assisted you in locating a contract with a state 13 Q Do you kuow if he's represented currently by 13 agency or the vendor? 14 Mr. Shakfeh? 14 A Joel Chandler. 15 A 1 do not know. 15 Q Anyone else? 16 Q From reading the complaint in this case 16 A Not that I recall. Just Thomas and Joel. 17 involving PACE, I have gleaned from that that you 17 Q It's your testimony today that nobody in the 18 visit agencies or vendors, as you call them. Do you 18 O'Boyle Firm has assisted you in finding contracts 19 consider PACE a vendor? 19 with the State of Florida? 20 A Yes. 20 A Nobody in the O'Boyle Finn has ever assisted 21 Q Okay. When you visit an agency or a vendor, 21 me in finding contracts in the State of Florida. 22 you generally have a contract --22 Q Has any attorney ever assisted you? 23 A Yes. 23 A No. 24 Q --of some sort that either the agency has 24 Q Nobody other than Mr. Covenant and 25 or the vendor has with an agency; is that correct? 25 Mr. Chandler and you have been involved in identifying Page 58 Page 60 1 A That1s correct. I and downloading contracts with state agencies? 2 Q Where do you get the contract? 2 A What do you mean by that? I mean, I don't 3 A I get the contract offline from the 3 know if anybody else has done it. 4 government website. 4 Q That you have utilized in your efforts? 5 Q Which government website? 5 A That's correct. Just me, Thomas and Joel. 6 A Man, I can't think of it right now. I'm so 6 Q Okay. Did anybody tell you how to do that? 7 bad about this. rm sony. The CFO website, the 7 A Did anybody tell me how to do it? No. 8 government website where this all--you get it from 8 Q Okay. It's just something you kind of 9 the Attorney General website and the CFO website, just 9 learned on your own? 10 go on there as a public record. 10 A Yeah. II Q Do you get those, or does somebody get them 11 Q When you locate a contract with a government 12 for you? 12 agency, how do you detennine what records are involved 13 A I get them and sometimes Thomas gets them 13 in the contract? 14 forme. 14 A How do we detennine what records are 15 Q Sometimes who? 15 involved in the contract? Specifically, with the 16 A Thomas. 16 example of PACE, I look at the contract online, see if 17 Q Thomas? 17 the contract is active. We look for the public 18 A Covenant. 18 records language in the contract. And if it says in 19 Q So either you or Mr. Covenant does a search 19 the public records language --if it says in the 20 online for government contracts -~ 20 public records language in the contract, if it says 21 A Uh-huh. 21 that the vendor, as I call them, is subject to public 22 Q --through various government agencies; is 22 records, we decide to go do a public records request. 23 that correct? 23 Q Is it not your experience, in looking at 24 A Through various government --yes. yes. 24 contracts with state agencies or any government 25 Q No one provides you with those contracts? 25 agency, that there's language in there requiring the Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000516 Page 16 (Pages 61-64) Page 61 Page 63 1 agency or the entity to comply with public records 2 law? 3 A Yes. It is -in the contract, it 4 specifically does state that they are required to 5 comply with the records language, if the 119language 6 is there. 7 Q So how do you determine what document you 8 want to request? 9 A How do I determine what document? Just 10 whether it's public record or not, if it's a part of 11 the contract, if it falls under the definition of 12 public records. 13 Q Okay. Does anyone assist you in determining 14 what document to request that may be part of a 15 contract that you have reviewed? 16 A Does anyone assist me? No. I made that 17 determination myself. 18 Q So can you tell me how many government 19 contracts you have reviewed in calendar year 2014? 20 A Calendar year -- 21 Q I'm not limiting it to state--any 22 governmental entity whatsoever. 23 A So you're talking about contracts between 24 the government ~-any agency and a vendor? 25 Q Well, it's my understanding you don't Limit Page 62 1 your public records request to vendors. 2 A Right. 3 Q You go to government agencies and make 4 requests? 5 A Yeah. But the government agencies don't 6 have contracts. 7 Q But they have documents? 8 A Yeah, they have documents. I wasn't sure 9 what you mean. lO Q For right now, we'll limit it. How many 11 contracts have you reviewed that any government agency 12 has with a vendor, such as PACE, in calendar year !3 2014? 14 A I would say approximately 50. I 5 Q And of that approximate 50, you filed suit 16 on approximately 30? 17 A Approximately 30. 18 Q Okay. And you review --you have reviewed 19 all 50 of these contracts approximately to detennine 20 if they're subjectto Chapter ll9? 21 A Correct. 22 Q And you have reviewed approximately all 50 23 contracts in order to determine what documents to 24 request? 25 A No. I'm reviewing the contract just-- 1 whether it's subject to Chapter 119 or not. And the 2 contract don'tnecessarily, you know, help me 3 determine which record I want because it's whatever 4 falls under the defmition of public records is what 5 I'll ask for. 6 MR. WELLS: Ms. Silverberg, would you read 7 that last question and response back? 8 (The last question and answer was read back.) 9 BYMR. WELLS: 10 Q I'm not sure I understand that, Mr. Gray. Il You get a contract that a vendor has with a government 12 agency; you download it? 13 A Uh-huh. 14 Q You get a hard copy? IS A Correct. 16 Q And you review the contract to make sure -- 17 or to determine if there is a public records 18 compliance requirement in the contract? 19 A Correct. 20 Q Then you take that contract to a vendor? 21 A Ifi'm determined to go to the vendor, yes; 22 typically, I will have the contract. I like to have 23 the contract in my hand. 24 Q So you make a determination that you're 25 going to go visit ABC vendor? Page 64 I A Yes. 2 Q And you ask for what when you go to ABC 3 vendor? 4 A Just whatever comes in my mind when I'm 5 going in there, whatever is in relation --whatever 6 documents are created and are received in relation to 7 that contract that they have with the State. So it 8 could be anything from the signatory page of the 9 contract itself, if the contract requires -which 10 they all do--they all require that there be adequate 11 liability insurance, I'll ask to inspect and 12 photograph a copy of the liability insurance 13 certificate, Sometimes l'U ask for the most recent 14 invoice. Just whatever records are created or 15 received in conjunction with the specific contract 16 that I'm visiting the vendor with. 17 Q Do you know anyone who uses the email name, 18 a-n-o-n-a-m-a, Anonama? 19 A Not that I recall, no. 20 Q Okay. 21 A What is it again> A-n M- 22 Q A-n-o-n-a-m-a. Two words. 23 A No. 24 Q The answer to my preceding question was kind 25 of what I was looking for earlier. When you have Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000517 Page 17 (Pages 65-68) Page 65 Page 67 I downloaded the contract and satisfied yourself that 2 Chapter I 19 compliance is required, you then identify 3 something within the contract to ask the vendor for? 4 A Uh-huh. 5 Q How do you make the determination what to 6 ask for? 7 A How do I make the detennination what to ask 8 for? Since I'm doing an in-person public records 9 request, what l!ypica!ly do is I'll ask for the 10 absolutely easiest thing for the vendor to comply with 11 because I would like --like if I want to inspect and 12 photograph proof of liability insurance or the 13 signatory page of the contrac~ then I try to get the 14 easiest thing for them to comply with so that it l5 doesn't take a lot of effort on their part and I ask 16 for that. 17 Q How do you make a detennination as to what 18 is the easiest thing for the vendor to comply with? 19 A Whether or not they have to do a lot of work 20 to go get it, whether or not it1S easily accessible, 21 whether or not there 1s any redactable information on 22 it that1S required by Florida Statute 119, you know, 23 things like that. 24 Q But if you're not familiar with an agency or 25 a vendor, how do you know what's accessible'! Page I A How do I know what's accessible? Based on 2 if it's created or received in relation to the 3 contract, the vendor contract. It's the public 4 records law. 5 Q How many of the 50 contracts - 6 approximately 50 contracts that you downloaded have 7 you actually visited an agency or vendor to request 8 documents from? 9 A Like I said. I believe there's been 30 to 40 10 that rve visited this year. II Q And of the ~~ and you said you sued 12 approximately 30? 13 A Uh-huh. 14 Q And youjve visited approximately 30 to 40 of 15 them. Would it be fair to say you've sued almost 16 everyone you visited? 17 A About half to the majority of them, yes. A 18 little more than half, yes. Some of them comply. 19 Q Pardon me? 20 A Some of them comply with no problem. 21 Q Some of them comply what? 22 A With no problem. Some of them just comply 23 when you go in and ask for records. 24 Q Of the 30 or 40 that you have visited of 66 25 your approximate 50 contracts you have downloaded, how 1 many of those requests have been for some type of 2 proof of insurance? 3 A I would say the majority of them are for 4 proof of insurance. When I go in, that's the document 5 I Jypically ask for is the proof of liability 6 insurance. I like to check and see if they have the 7 insurance required by the contract. 8 Q Of those approximately 30 to 40 vendors-- 9 of the 30 to 40 you've mentioned, are they all vendors 10 like PACE? 11 A Correct. 12 Q Of whatever number you have visited, did you 13 give any of them a call in advance? 14 A No. 15 Q Did you communicate with any of them at all 16 in any form in advance prior to visiting whatever 17 office you visited? 18 A No. 19 Q Is there a reason for that? 20 A No. 21 Q How do you determine which vendors you're 22 going to visit? 23 A How do I detennine which vendors I'm going 24 to visit? Well, like I said earlier, I look at the 25 contract. I detennine whether the contract is Page 68 I active. And then if it's a vendor that rm interested 2 in, to see ~-to see if I want to check to see if they 3 are maintaining liability insurance or they're keeping 4 their records like they're supposed to, I'll just go 5 to them. 6 Q What makes you interested in any particular 7 vendor? 8 A Any particular vendor? Nothing really 9 specific. There's nothing that makes me interested in 10 any one vendor over any other. I just want to go see II if the records are there. 12 Q Well, in your prior answer, you said, If 13 it's a vendor I'm interested in. 14 A A vendor I'm interested in. 15 Q What do you mean by that? 16 A What do I mean by that, a vendor I'm 17 interested in? I don't know. Something that would 18 make me interested is ifl don't have to travel too 19 far to go to it, if it's in the local area. 20 Q How far is Broward County from here? 21 A Broward County is -I'm not sure. I don't 22 know the exact mileage. 23 Q Did you flle any lawsuits in Dade County? 24 A In Dade County? I believe I have. 25 Q You haven1t filed any in St. Johns, have Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000518 Page 18 (Pages 69-72) Page 69 Page 7l 1 you? A No. 2 3 Q Okay, Do you know if there are vendors or 4 state contracts in your home county? 5 A I'm sure there are, but I haven't reviewed 6 any contracts that I can remember. 7 Q You haven't viewed any contracts between a 8 vendor and a state agency in St. Johns County; is that 9 correct? 10 A That's correct. II Q You've indicated that you have a file with 12 all the complaints that have been filed in your name? 13 14 15 A (Nods head.) Q Is that a yes? A I don't have all of them, no. I don't 16 have w-because some of them, just quite frankly, have 17 not been sent to me. 18 Q They quite frankly what? 19 A They haven't been sent to me. I don't have 20 all of them, all of the complaints. 21 Q Okay. Doyournaintainalogofeachvisit 22 you make to a vendor? 23 A Do I maintain a log? No. 24 Q Do you have a file of the contracts, these 25 approximately 50 contracts that you've downloaded and Page 70 l viewed? 2 A No, not all of them. I have--typically, J if I have a video, I will put the contract in a file 4 with the video, I guess. 5 Q I thought I understood you to say earlier 6 that you had videoed every visit you've made to 7 request public records. 8 A I have. 9 Q So I assume then, from your immediately 1 o prior statement. that you got a contract with each 11 video for all the visits you1ve made. 12 A Yeah. But I don't save all my videos and I 13 don't save aU my contracts. 14 Q Okay. 15 MR. WELLS: For the record, I would like 16 this to stand as a request for the preservation 11 of all evidence, specifically including videos, 18 that are still currently in existence or 19 obtainable. 20 BY MR. WELLS: 21 Q Have you deleted any videos? 22 A Yeah. 23 Q Do you know how many you have deleted? 24 A No. 25 Q Do you know of any particular agency or 1 vendor where a video has been deleted? 2 A I have not deleted any videos where I have 3 filed suit on them. I do not delete--I have the 4 original video and the video that I put on YouTube. 5 But other videos where rve gone into vendors and they 6 complied or they scheduled me to come back, I don 1t 7 keep every video that I record. 8 Q Scheduled you to come back. So there are 9 some vendors that have asked you to come back? IO A Yes. II Q And do you do that? 12 A I have sometimes come back. Yes. 13 Q Why do they ask you to come back? 14 A They'll ask me to come back because maybe 15 the person is not there that has the contract, or the 16 person that's designated as the contract--the person 17 tbaes designated as the contact person. 18 Q Okay. So there are circumstances where the I 9 person who might be in charge of the contract is not 20 available? 21 A Uh-hub. 22 Q Have you encountered situations where 23 whoever might be responsible for the contract or in 24 charge of the office or whatever is not available, 25 because of prior commitments, given the fact you Page 72 l haven't given notice of your intent to visit? 2 A Yes. 3 Q In those situations, do you go back when the 4 person is available? 5 A As a matter of fac~ with PACE, I went 6 back. I went there and I requested it. They said 7 that the person was not available; Can you come back 8 later? I said, What time can you expect the contact 9 person to be there? And they said, Well, come back l 0 later this afternoon. I can't remember exactly when ll it was. So I came back later that afternoon. 12 Q Did you video both visits? 13 A I don't recall if I videoed both visits or 14 not. I don1t recall. 15 Q Mr. Taylor has provided me, I think--I 16 really haven1t looked at it -I think it1s just one t 7 episode, if I understand it. 18 A Uh-hub. 19 Q Is that a yes? 20 A Is that a yes about what? 21 Q There's only one episode? 22 A Yeah. 23 Q You only videoed one encounter, if you will, 24 at PACE? 25 A That's correct. Yes. Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000519 Page 19 (Pages 73-76) Page 73 Page 75 1 Q DoyouknowifthevideoyoumadeatPACE 2 was of the first visit or the second visit? 3 A It was the second visit. 4 Q The second visit? 5 A Yes. 6 Q Okay. When you visit a vendor, do you ask 7 for anyone in particular when you get there? 8 A Usually I try to ask for a person, if it's 9 what's listed on the contract, I try to ask for the lO contact person that says the contact person where the ll administrative records are stored is and it will give 12 a name. And I'll typically try to ask for that 13 person, or the public records coordinator, or whoever 14 you guys have to handle public records requests. 15 Q Did you do that with PACE? 16 A I don't recall specifically if! did. I 17 would have to review the video again. I don't recalL 18 Q Why do you video what you 1re doing? 19 A Why do I video? To document the public 20 records request. 21 Q We refer to video. In whatever filming you 22 do, do you also include audio? 23 A Yes. 24 Q So what Mr. Taylor sent me is not only a 25 video of your encounter with the folks at PACE, but it Page 74 I also includes audio? 2 THE WITNESS: Is that what you sent him? 3 MR. TAYLOR: It was my understanding that 4 it's both. I'm saying it was --Jim showing what 5 we sent you was video and audio. If you didn't 6 get either one, we can certainly -~ 7 MR. WELLS: I have intentionally not -I 8 mean, I opened--I saw the bit about what it was 9 and then I shut it down because I wanted this to 10 be-- 11 MR. TAYLOR: Okay. Understood. 12 THE WITNESS: It's always-whenever I do 13 video, it's audio and video. 14 BY MR. WELLS: 15 Q Okay. And Mr. Covenant was with you? 16 A Yes. 17 Q Is he shown on the video that you make'? 18 A He may or may not be. If he walks in front 19 of the camera. 20 Q What kind of camera do you use when you 21 video? 22 A I use a Canon EOS camera because that's the 23 one that I also use to take a photo of the document. 24 Q A Canon EOS, that has--and I'm totally 25 illiterate, okay--a Canon EOS has video and audio 1 capability? 2 A Correct. It looks like a still photo 3 camera) but it has --because that1s what I use it 4 mainly for, is to photograph the documents also, and 5 it also has audio and video capability, yes. 6 Q Okay. Do you ever use any type of iPad, 7 mini pad, any kind of tablet kind of thing? 8 A I will occasionally use my iPad, yes, if 9 it's got --sometimes I don1t have the contract I 0 printed out and I'll just have the basic information II about the contract: The contract, the vendor--the 12 contract number, the vendor, who the vendor has the 13 contract with. And so that's what I use the iPad for. 14 Q When you make a request for a document, 15 pursuant to public records request and you are 16 videoing with audio, do you notify whoever it is that 17 you're doing that? 18 A No. 19 Q Do you obtain their consent to do that? 20 A No. 21 Q Is there a reason why you do not? 22 A No. 23 Q I know you're represented by counsel, but 24 have you ever considered the legality of obtaining 25 video and audio of someone without obtaining their Page 76 1 consent? 2 A The legality of it? I know the public -- 3 I'm not an attorney or anything, but J know the public 4 records law has a statute about the right to 5 photograph the records. And it says that the person, 6 when they are fulfilling a public request, they are 7 standing in the shoes of the State and the public 8 officials have no expectation of privacy while 9 performing their official public duties. 10 Q So it's your interpretation ofwhatever 11 provision you just read that that gives you the right 12 to obtain audio from that person without obtaining 13 consent, without providing notification? 14 A Yes. Thafs my interpretation. 15 Q Have you ever tested the validity ofthat 16 interpretation anywhere? 17 A Tested the validity of it? 18 Q Yes, sir. 19 A I'm not sure I understand what you mean. 20 Q Have you ever sought advice of counsel as to 21 whether your interpretation is correct? 22 A Outside of advice of counsel? No. 23 Q Sir? 24 A No. 25 Q Has anyone ever objected to your using audio Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000520 Page 20 (Pages 77-80) Page 77 Page 79 I in your videos? I public records request? 2 A No. 2 A Some public agency ~w people who work for 3 Q Has anyone ever objected to your using 3 public agencies, yes, they have. 4 either audio or video? 4 Q Okay. And as a result of those objections, 5 A No. You're speaking--videos, you're 5 have you deleted any of those video or audio films 6 talking about aU of my videos? 6 that you took? 7 Q rm talking about has any particular 7 A No. 8 individual that is shown in any of your videos 8 Q You have not? 9 objected to being displayed in your video --we'll 9 A No, not because somebody objected to them. IO start with video --in your public records request lO Q You have deleted some, but not because of II activities? II the objections? I2 A In my public records request activities? I2 A Correct. I3 Q Yes. l3 Q And did I understand you earlier, the ones I4 A With vendors, no. With public agencies, I4 you have deleted have been from the Jacksonville I5 yes. I5 Sheriff's Office and the Jacksonville Agricultural I6 Q Can you identifY any public agency--public 16 something or other? I7 agencies or public agency employees who have objected? I7 A Yeah--no. Those aren1t the ones I I8 A Identify the individual, or just the I8 deleted. Those are the ones that objected. I9 agency? I9 Q They objected, but you did not delete them? 20 Q What objection may have been made, who made 20 A They objected--I've done so many videos. 2I it? 2I Jive deleted some and I've published some. I don't 22 A Let's see. Members of the Jacksonville 22 know specifically which ones I've deleted and I 23 Sheriffs Office have objected. The Jacksonville 23 haven't deleted. I know that I've never deleted a 24 Agricultural Department has objected. The videos are 24 video specifically because someone objected to me 25 all on my YouTube channeL 1 would have to look at 25 videotaping. Page 78 Page 80 I them to see which ones specifically objected because I Q Well, to the extent you may have deleted 2 there are so many of them. 2 some, why would you have deleted them? 3 Q Have you ever deleted any videos or audio 3 A Maybe they just weren't interesting enough 4 pursuant to an objection by anyone? 4 to be published on YouTube. 5 A Deleted any videos or audio pursuant to an 5 Q Okay. When you go into a vendor accompanied 6 objection? Pursuant to an objection, what do you 6 by Mr. Covenant or Mr. Miller or 7 mean? 7 Mr. Chandler, how do you identity yourself! 8 Q If anybody ever made an objection to the 8 A I don't identify myself. I say, rm here to 9 video or audio, did you delete it when they made that 9 make a public records request. lO objection? lO Q You don't give them your name or anything II A No. II like that? I2 Q Under what circumstances have you deleted I2 A No. I3 any video or audio? l3 Q Okay. How do you identify what it is you're I4 A Under what circumstances have I ever deleted 14 looking for when you make a public records request? IS any audio or video of-15 A How do I identity what it is rm looking for I6 Q Of anyone in which you had been making a I6 when I make a public records request? I tell the I7 public records request. 17 person that I'm speaking to --usually ru have the I8 A I don't understand the question. I8 contract in my hand; I've printed it. I tell them I9 Q Okay. lt1s my understanding, Mr. Gray, that 19 what the contract number is. I tell them it1s the 20 every time you make a public records request you video 20 contract between whatever vendor it is and whatever 21 that request and that video is accompanied by audio; 2I agency they have the contract with. Like I said, I 22 is that correct? 22 give them the contract number. And I simply say, I'm 23 A That's correct. 23 maldng a public records request; I would like to 24 Q Has anyone ever objected to your having 24 inspect and photograph whichever document I'm asking 25 videoed your request of that person in your making a 25 to inspect and photograph. Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000521 Page 21 (Pages 81-84) Page 81 Page 83 1 Q Okay. Assuming that -~ without regard to 1 Jacksonville; we may want to go check and see if 2 PACE, but just generally speaking, you go to a vendor, 2 they're in compliance with public records basically. 3 you make a request, for whatever reason you don't get 3 Q If they were in compliance with public 4 the documents you requested, I believe you indicated 4 records? 5 there are times when you go back. 5 A Yeah. If they're going to comply with 6 A Uh-huh. 6 public records access and to see if we could -· 7 Q ls that a yes? 7 Q Okay. Who reviewed the complaint to 8 A Yes. 8 detennine what to ask? 9 Q Are there times when you don't go back? 9 A I did. You mean --who reviewed the 10 A Yes. 10 complaint? 11 Q What dictates those times when you don't go 11 Q Excuse me. Who reviewed the contract -- 12 back? 12 A The contract. Okay. 13 A Opportunity, time, distance, how busy I am. 13 Q --that PACE had with whatever state agency 14 Q Have you ever left your name and contact 14 to determine what to ask for? 15 information with any vendor when you were unable to 15 A I did. 16 get the documents you requested ~-16 Q When did you do that? 17 A No. 17 A I don't recall. 18 Q --upon your initial visit? 18 Q Was it the day you went; was it sometime 19 A No. 19 prior to that? 20 Q Is there a reason for that? 20 A I don't recall; I don't recall when I 21 A Because I have a right to remain anonymous 21 decided. I believe I asked for the certificate of 22 when I make my public records request 22 insurance. 23 Q You have a right to remain anonymous? 23 Q Who did you ask for when you went there? 24 A Yes. 24 You said earlier you don't know. 25 Q Is that why you filed 30 lawsuits? 25 A Who did I-- Page 82 Page B4 1 A Is that why I filed 30 lawsuits? 1 Q Did you ask for anybody specifically? 2 Q Yeah. 2 A I can't remember if I asked for anybody 3 A I filed 30 lawsuits because my rights have 3 specifically. I would have to watch the video again. 4 been violated and they violate my right to access 4 Q Okay. You indicated earlier that sometimes 5 public records. 5 you ask for whoever is in charge of the contracts. 6 Q How long after you leave a vendor's office, 6 Did you do that at PACE? 7 when you don't get whatever it is you're asking for, 7 A That's what I just said; I don't recall if I 8 do you notify either the O'Boyle Firm or Mr. Shakfeh? 8 did. 9 A I have no set period of time. 9 Q When did you and Mr. Covenant make a 10 Q How do you do that, by phone? 10 decision that you were going to go visit PACE? 11 A By phone, by email, whichever. 11 A I don't recall. 12 Q Do you usually use your mobile phone when 12 Q Do you recall the date you went to visit 13 you make phone calls? 13 PACE? 14 A Yes. 14 A I don't recall. 15 Q Okay. I'm going to ask you specifically 15 Q Do you recall the month you visited PACE? 16 some questions now about PACE and some of these 16 A No. 17 will~~ probably your responses earlier will apply. 17 Q Do you recall the PACE address? 18 I'm going to assume that you somehow downloaded a 18 A No. 19 contract that PACE had with the agency that you 19 Q Do you recall whether you visited any other 20 believed they had a contract with. 20 agency or vendor in the same day you visited PACE? 21 A Right. 21 A We did visit other vendors in Jacksonville 22 Q Was that just a random downloading from the 22 that day. I don't recall which ones they were 23 agency, or how did you locate that contract? 23 specifically, but we did visit other vendors that day. 24 A With PACE, I was contacted by Thomas and he 24 Q When you and Mr. Covenant or Chandler or 25 said, you know, there's a contract here in 25 Miller, whoever, visit vendors, do you usually do Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000522 Page 85 1 several in one day? 2 A Usually, yes. 3 Q Is there a particular period of time in 4 between these days that you visit vendors that you 5 don't? 6 A No. 7 Q Can you describe what you observed as you 8 entered the offices of PACE? 9 A Can I describe what I observed? Opening the 10 door, there was a receptionist. I think she called a II young lady up. I think I may have explained to the 12 receptionist ~-I would have to watch the video again 13 to be specific --but I explained to the receptionist 14 why I was there, to make a public records request. 15 She contacted another --a young lady who carne out and 16 I explained to her why I was there and that was to 17 make a public records request. 18 Q Did you get the names of any of these 19 individuals you spoke with? 20 A I believe I did. I can't recall what the 21 names were. I believe they are on the video, when I 22 asked. 23 Q Do you recall whether you asked the names, 24 or did the person volunteer their name, or what? 25 A I can't recall. Page 86 1 Q Do you remember either of the names of any 2 of the people you spoke with at PACE? 3 A No. 4 Q So you spoke to a receptionist who then 5 called someone else up? 6 A Ifi remember correctly, yes, yes. A young 7 lady came out. 8 Q Was there anybody else in the vicinity when 9 you first walked in? 10 A Thomas walked in with me. 11 Q Other than you and Mr. Covenant and perhaps 12 the initial receptionist who you spoke to, were there 13 any other people in the immediate vicinity? 14 A In the lobby area, no. I don't recall. 15 There was a -~ I don1t recall. I think there were 16 people moving about, but I don't recall anybody else 17 in there. 18 Q Okay. Were you able to observe whether 19 there were any people there who you could distinguish 20 as clients of PACE as opposed to employees of PACE? 21 A I wouldn't know who was clients and who was 22 employees. 23 Q The first young lady --I assume the first 24 receptionist you spoke to was female. 25 A Uh-huh. I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 22 (Pages 85-88) Q Could you tell how old she was? A No. Q Can you describe her? A I mean, I can1t remember. No. The receptionist, no. Page 87 Q The second person that came up who was called by the receptionist, male or female? A Female. Q Can you describe her? A Brown hair, Caucasian, I think. That's about--brown hair, white female, really nice, real polite. Q Do you recall anything about how old she was approximately? A She seemed to be 35 to 30 --30 to 35, somewhere around there. Q Other than those two individuals, did you speak with anybody else at PACE-- A Not that I recall. Q --you and Mr. Covenant? A Not that I recall. No, sir. Q Did you see any other people who appeared to be employees of PACE while you were there? A I saw people moving about, yes, moving about the office, the area in there. Page 88 1 Q When you went into PACE, did you go to a 2 desk, or did you go to a counter or what? 3 A Went through --I think there were glass 4 doors. As you enter, there's a receptionist's desk 5 and there was some chairs on the wall. I spoke to the 6 receptionist, I believe. Explained to her that I was 7 there for a public records request, ifi'm remembering 8 correctly. She told me that she would contact 9 somebody. So I sat down in the chair and the young 10 female that I just described came out. ll Q Okay. After you spoke to the second person, 12 what happened? 13 A After I spoke to the second person, what 14 happened? 15 Q Let me make sure I understand something 16 too. When you spoke to the receptionist and then 17 spoke to the second person, was that on this first or 18 what you believe to be the second visit? 19 A Second visit. 20 Q Second visit let's go back to the first 21 visit. When did that occur? 22 A I think that occurred about three hours 23 before the second visit. 24 25 Q Who did you speak with then'! A I believe it was the receptionist. Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000523 Page 23 (Pages 89-92) Page 89 Page 91 l Q The same receptionist you spoke with later? 2 A I believe so, yes. I explained I was there 3 for a public records request. They recommended for me 4 to come back later. 5 Q So the first receptionist you spoke with 6 said come back later? 7 A Yes. 8 Q Okay. Then you and Mr. Covenant left? 9 A Correct. 10 Q And then you came back and that's when you 11 spoke to the second person? 12 A Correct. 13 Q On your first visit, the only person you 14 spoke with was the receptionist? 15 A Ifl remember correctly, yes. 16 Q Did you film and audio that encounter with 17 the receptionist on the first visit? 18 A I don't recall if I did or not. I don't 19 remember if the camera was recording. I had the 20 camera to take the photograph, but I can't recall if 21 the camera was recording or not. I can'tremember. 22 Q When you had your first encounter with the 23 receptionist,. if you videoed it, has that been 24 provided to Mr. Taylor? 25 A If I videoed it? Page 90 1 Q If you videoed it with audio --let me be 2 precise-- 3 A No. 4 Q --you would not have provided it to 5 Mr. Taylor? 6 A No. 7 Q Why? 8 A I don't think I did. Like l said, l don't 9 remember if I recorded it or not. I don't think 10 there's a video of the first encounter; I don't think ll there is a video of the first encounter. No. 12 Q Okay. But you have previously testified 1 3 that you video all encounters -- 14 A Yes. 15 Q --so you can document your request. 16 A Yes. 17 Q And when you first walked in the door and 18 spoke to the receptionist, you did not know what 19 response she was going to make? 20 A Correct. 21 Q But you didn't have your video on? 22 A I don1t remember if I had it on or not. 23 Q Okay. So you may have had it on, you may 24 not have, but in any event nothing has been provided 25 to Mr. Taylor? I A Correct 2 Q The second visit, the receptionist gets 3 another person. You've now got your video going with 4 audio? 5 A Yes. 6 Q Did you video and audio the portion with the 7 receptionist before she called this second person 8 over? 9 A I believe so. 10 Q Do you advise the second person, the white ll female with dark brown hair, what you want? 12 A Correct. 13 Q How did you identifY for her what documents 14 you wanted? 15 A I believe I had the contract in my hand. 16 Like I said, I would say, I'm here to make a public 17 records request. I tell them the contract number. 18 And I told her that I would like to inspect and 19 photograph the certificate of liability insurance, 20 basically a proof of insurance that's required by the 21 contract. 22 I believe I had a sample from where I had 23 photographed or gotten a copy of a certificate of 24 liability insurance from another vendor --I'm not 25 sure which vendor it was --as an example, just to Page 92 l show her what I was specifically looking for, to be 2 specific about it. 3 Q Mr. Gray, I'm going to hand you a copy of 4 the complaint that has been filed in this matter and 5 purports to have a copy of the contract upon which you 6 are basing your lawsuit. And I would ask you, if you 7 would, to tum to the contract and find for me in the 8 contract where it requires or addresses the documents 9 you've requested. 10 A I have found it. 11 Q Sir? 12 A I found it. 13 Q Whatpage? 14 A Page 10 of36. 15 Q Okay. Now you asked for-you showed them t 6 a certificate of insurance that you had received from 17 somewhere else? I& A Correct. 19 Q And you asked them to produce that document 20 that they maintained -M 21 A Correct. 22 Q -is that correct? 23 A Ub-huh. 24 Q Okay. \Vhere on Page 10 does it require PACE 25 to maintain that document? Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000524 Page 24 (Pages 93-96) Page 93 Page 95 I A On Page 10 where does it require it? I Q You didn't ask for proof of insurancej 2 Nowhere that I could tell. On Page 10, where does it 2 you asked for a certificate ofliability insurance. 3 require that they maintain the document? 3 A Something that proves that they have 4 Q I'm trying to figure out --4 insurance. 5 A On Page 10, it does not. I don't see any 5 Q Is that what you requested? 6 language that says that it's required that they 6 A Yeah. 7 maintain that document. 7 Q And it's your testimony that whatever video 8 Q So exactly what were you asking for? 8 you took will show that you requested them to provide 9 A I was asking for the certificate of 9 you with proof of insurance? 10 liability insurance that's required by the document --10 A Yes. I 1 by the contract. 11 Q Does that contract require them to maintain !2 Q Where is a certificate of liability !2 proof of insurance? !3 insurance required to be maintained, on Page 1 0? 13 A Proof of insurance. 14 A It says right here, The insurance provider 14 Q My question is: Is your reading of the 15 shall maintain, if applicable, the following types of 15 contract, since you1re the one who downloaded it, or 16 insurance listed: Commercial, general liability. !6 Mr. Covenant downloaded it, but you reviewed it and !7 That's what I was asking for. !7 you made the determination that you're going to go ask 18 Q Okay. That requires them to maintain the 18 them for proof of insurance, where in the contract 19 insurance? 19 does it require them to maintain that they have 20 A Uh-huh. 20 insurance or have proof that they have insurance? 21 Q Is there anyplace in this contract that 21 A In the contract? Well, typically, if you 22 you're aware of that requires PACE to maintain a 22 have insurance, you have documentation showing that 23 certificate of liabiHty insurance? 23 you have insurance. 24 A Written in the contract? The public records 24 Q But where in this contract that you used 25 access right here on Page I of36. 25 does that say that PACE has to do that? Page 94 Page 96 1 Q Public records access. Now where on Page I 2 does it say that public records access means that they 3 have to maintain a certificate ofliability insurance? 4 A It says, All documents created and 5 received ~-let's see. The provider agrees to allow 6 access and review of all documents, papers, letters, 7 maps, books, tapes, photographs, film, sound 8 recordings, data processing, software and other 9 material, regardless of physical form or 10 characteristics, or means of transmission, made or 1 t received pursuant to law or ordinance in connection 12 with the transaction of official business by any 13 agency as defined in Section 119. Ail documents made 14 or received by the provider in conjunction with this 15 contract shall be made available except for those 16 public records which are made confidential by law, 17 Q Okay. Now what does that paragraph have to 18 do with the certificate of liability insurance? 19 A The certificate of liability insurance is 20 required by the contract. 21 Q Where? 22 A Well, it's required that they have liability 23 insurance. 24 Q I don't dispute that 25 A Okay. 1 A It doesn't say specifically insurance. It 2 says that they have to maintain records regarding the 3 contract. 4 Q Okay. So you're saying because Paragraph 5 1 --excuse me--Paragraph BA~2 on Page 1 requires 6 them to maintain their records, that requires them to 7 maintain proof of insurance that they're required to 8 provide to the State? 9 A Yes. l 0 Q Did you speak to anyone else after this 11 young lady with the brown hair that day? 12 A You mean at PACE? 13 Q AtPACE. 14 A I may have said good-bye to the 15 receptionist~ have a nice day) as we were leaving. 16 Q Okay. When you told the lady with the brown 17 hair that you wanted a certificate of liability 18 insurance or proof of insurance, whatever it is you 19 said, did you speak with anyone after that? 20 A No. I don't recall. We left. 21 Q And what did the young lady with the brown 22 hair tell you with regard to the document you 23 requested? 24 A She said that the person that she spoke to 25 on the phone~~ I can1t recall who it was right now-- Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000525 Page 25 (Pages 97-100) Page 97 Page 99 l but the person she spoke to on the phone said that it 2 needed to be in writing, that it should be emailed and 3 made in writing -the request should be emailed and 4 made in writing. 5 Q Do you know who at PACE was responsible for 6 maintaining the insurance contract? 7 A Maintaining, no. 8 Q Did you ask for the person responsible for 9 maintaining the insurance contract? 10 A No. ll Q Did you ask for anyone else in particular 12 other than, I simply want proof of insurance? 13 A I announced that I was there to make a 14 public records request. 15 Q My question, Mr. Gray, is very simple: Did 16 you make a request for anyone in particular with l7 respect to your request for whatever insurance 18 infonnation you were seeking? 19 A When I arrived, I can't remember ifi asked 20 for what's listed as the contact person in the 21 contract. I don't remember if I asked for that person 22 or not, but I did announce that I was there to make a 23 public records request. 24 Q Okay. And you said that this young lady 25 came back and had spoken to somebody on the phone? Page 98 I A Correct. 2 Q Does that suggest to you that whoever she 3 spoke to was not there in the office? 4 A Yes. 5 Q Okay. After she came back to you and told 6 you that she had spoken to someone on the phone and 7 that in order to get the document you need to leave 8 your name and address, did you respond to her in any 9 way? 10 A I don't think she told me I needed to leave II my name and address. I think she told me that I 12 needed to make it in writing via email. I think 13 that's what she said. 14 Q Okay. What response did you make to thai? 15 A I believe I told her that I would like to go 16 ahead and access the records now; I would like to take 17 a photograph and inspect the records now. 18 Q Do you have any infonnation, from any 19 source, that PACE had their insurance policy itself in 20 the office that day? 21 A No. 22 Q Do you have any information that PACE had 23 any type of documentation in the office proving they 24 had insurance that day? 25 A Other than what it says and the reason we 1 went there is because, in the contract, it says that 2 is the place where the administrative record was 3 stored and the contact person~ that is the address. so 4 that's why we went there. 5 Q But my question is: Do you know if they had 6 it in the office that day? 7 A No. That's--no. 8 Q Do you know if a certificate of liability 9 insurance, as you've described it, was in the office 10 that day? II A No. 12 Q Have you subsequent to that day ever 13 received a certificate of liability insurance or any 14 other type ofproofofinsurance as to PACE? 15 A PACE, no. 16 Q Okay. YoudidnotgobacktoPACEafter 17 that first day? 18 A No. 19 Q Have you ever made a request to go back to 20 PACE-- 21 A No. 22 Q -after that first day? 23 A No. 24 Q Has anybody ever advised you of your right 25 to go back to PACE and photograph or inspect some Page 100 I record? 2 A No. 3 Q And you've never been provided by anyone 4 with proof of insurance that PACE maintained? 5 A Provided with anyone proof, what is that? 6 I'm not sure what you mean. 7 Q Whatever documents you were requesting, 8 whatever proof you were requesting when you went to 9 PACE, you never received that? 10 A No. Other than looking at the contract and II seeing that they are required to maintain -- 12 Q Insurance? l3 A --insurance. 14 Q Okay. You didn't ask to see the insurance 15 policy? 16 A No. 17 MR. WELLS: I would like to have the 18 complaint and the attached contract marked as 19 Defendant's Exhibit 1 to the deposition. 20 (Defendant's Exhibit No. 1 was marked for 21 identification.) 22 BY MR. WELLS: 23 Q Mr. Gray, do you lmow of any reason why-~ 24 strike that. Just to make sure I'm clear, since your 25 initial visit to PACE, not only have you not received Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000526 I 2 3 4 5 6 7 8 9 !0 11 12 13 14 15 16 !7 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 !8 19 20 21 22 23 24 25 Page 101 the infonnation you were requesting, but you've never been advised of your right to go back there, that you were invited to go back there to photograph and inspect whatever it is you were requesting; is that correct? A (No response.) Q Pardon me? A I'm thinking. I don~ recall ifl had been advised if I could go back there. Q Do you know somebody named Thresa Giles or Giles? A No. Q Do you know Yessica Cancel? A No. Q I had asked you, Mr. Gray, if you had ever, since your first visit, seen the proof of insurance you 1re asking for or a certificate of liability insurance. Let me show you this document. Pll represent to you that that is a certificate of liability insurance on PACE-- A Okay. Q --pursuant to their contract with the state agency. You 1ve never seen that before, have you? A No, sir. Not from PACE. MR. WELL: I'll have this marked as Page 102 Defendanes Exhibit 2. (Defendant's Exhibit No. 2 was marked for identification.) BY MR. WELLS: Q You aren't, by chance, in some way incorporated, are you? A No. Q So none of Honor Your Oath, or Photography is not a crime, or anything like that, you're not incorporated in any respect? A No. Q Okay. MR. WELLS: Let's take a ten-minute break, if we can. I'm almost through. (Briefbreak.) BY MR. WELLS: Q Just so that I'm clear, it's your testimony you made two visits to PACE on the same day -- A Yes, Q --about three hours apart? And the first visit, you spoke only to a receptionist? A That's what I recall. Yes. Q And she advised you to come back. Why? A She said that the contact person or the person that --the supervisor or whoever the CEO was I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 26 (Pages 101-104) Page 103 would be there. When I asked for who would do the public records type of deal, she said to come back when that person is there, so I came back about three hours later. Q Okay. When you came back about three hours later, you spoke only to the same receptionist? A As far as I remember, yes. Q And then a second person that was -- A Yes. Q --about 35, brown hair, Caucasian? A A white female, Caucasian. Q So those are the only two people you've ever spoken to at PACE other than whatever acknowledgment you may have made to Ms. Marx today? A Yes. Q After you left PACE that day. you never went back and asked for the record again? A No. Q While you were there, what was Mr. Covenant doing? A He was just my friend, just there along just to be there. Q But could you see what he was physically doing; was he just standing beside you or-- A Yeah. He was just kind standing over to the Page left of me, from what I recall. Q Okay. Other than standing over to the left 104 of you, you have no specific recollection of what he was doing? A No. He was just there with me. Q Take a look at that document, if you would. Mr. Gray. A Okay. Q You're welcome to read all that you want to, but have you ever seen that before? A No, sir. MR. WELLS: I would like to have this marked for identification purposes only; we're not attaching it as an exhibit. (Defendant's Exhibit A was marked for identification.) BY MR. WELLS: Q I would like you to keep that. It's not going to be an exhibit to the complaint --to the deposition. Not having seen that before. do you know if you've ever discussed the contents of that before? A No. Q Okay. Do you have any infonnation as to the ramifications of that docwnent? A Indications of ramifications of that Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000527 Page 27 (Pages 105-108) Page 105 Page 107 I docwnent? I looking for? 2 Q Yes, sir. 2 A Yeah. That's what it looked like, so she 3 A No. 3 could have a point of reference, so she would know 4 Q When you made the request of the second 4 what I'm looking for. 5 person at PACE, brown hair, 35ish, Caucasian, you had 5 Q And by this, we're refening to 6 a copy of the contract with you? 6 Plaintiffs --excuse me --Defendant's Exhibit 2? 7 A I believe I did. Yes. 7 A Correct. I mean, I didn't have that 8 Q Okay. Did you show her or point to anything 8 particular document in my possession. It was one from 9 in the contract that you were looking for? 9 another-- 10 A I believe did, yes. I pointed to it and I 10 Q A sample? ll showed her the certificate of liability from the other II A A sample, yes. 12 place, like, This is what rm looking for; it's quick 12 Q You indicated that you had not been back to 13 and easy; just let me take a look at it and I'll leave 13 PACE and you indicated that you had never been advised 14 here. 14 that you could go back, Have you ever requested to go 15 Q And did you let her have either of those 15 back to anyone? 16 documents, either the contract or the certificate you 16 A Requested to go back to anyone? No. 17 had from the other source, for her to use to go back 17 Q Let me rephrase that. That wasn't clear. 18 to whoever she had to talk to? 18 Have you ever requested of anyone to go back to PACE 19 A I think I may have given it to her, or she 19 so you could attempt to photograph and inspect 20 may have taken it. I'm not sure. I would have to 20 whatever record it was you were seeking on the frrst 21 watch the video again. But--I mean, if she would 21 visit? 22 have wanted to take i~ I would let her have it. 22 A No. 23 Q But do you recall, one way or the other, 23 Q Is it your understanding, Mr. Gray, that the 24 whether she took possession of either of those 24 O'Boyle finn and Mr. Taylor, in specific, is 25 documents? 25 representing just you in this litigation? Page 106 Page 108 1 A I don1t recaU; I don't recall. 1 2 Q And when she came back to you to say that 2 3 you needed to put it in writing, can you tell me 3 4 precisely what she said to you? 4 5 A She said--precisely, I can't recall, but 5 6 she said --she spoke to the person on the phone. The 6 7 person on the phone said that it needs to be made in 7 8 writing, by email, the request needs to be made in 8 9 writing. 9 10 I believe it was at that point when I said, I 0 11 Well --I showed her the certificate of liability from II 12 the other place and said, This is easy, and I handed 12 13 her the contract. And she said, Per what I've been 13 14 told on the phone, it needs to be made in writing. I 14 15 said, Okay, thank you, and !left. 15 16 Q Did she say anything about whether the 16 17 documents you were asking for was even in the office 17 18 at PACE? 18 19 A No, I don't think she did. I don't recall 19 20 !hat she did. 20 21 Q Okay. Butyoushowedheradocumentthat 21 22 said --like this Exhibit 2, certificate of liability 22 23 insurance? 23 24 A Yes, I did, from another vendor. 24 25 Q And you told her that this is what you were 25 A In this, with PACE? Q Yes, sir. A Yes. MR. WELLS: I am through. Mr. Gray, you have the right to read and sign, if it's transcribed, or you can waive that right. If! ask for it to be transcribed, she's going to type up everything that was said today, assuming she heard you. Once she gets it typed up, you have the right to read it, to make sure she's done it correctly. Mr. Taylor can advise you as to whether you need to read and sign it or not. You can't make changes to it, but you can make a notation of errors in her transcription. TIIE WITNESS: Okay. MR. WELLS: So you need to let her know whether you will waive the right to read it, or whether you want to read it if it's transcribed. THE WITNESS: I would like to read it if it's transcribed. MR. WELLS: Very good. (The deposition was concluded at 4:45p.m.) Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000528 CERTIFICATE 2 STATEOFFLORIDA) 3 COUNTY OF DUVAL ) 4 I, Cynthia Silverberg, Shorthand Reporter 5 and Notary Public, State of Florida at Large, do 6 hereby certifY that I was authorized to and did 7 stenographically report the deposition of Page 109 8 JEFFREY MARCUS GRAY; that a review of the transcript 9 was requested; and that the foregoing transcript, l 0 pages 1 through I 08, is a true and complete record of 11 my stenographic notes. 12 I further certifY that I am not a relative, 13 employee, attorney or counsel of any of the parties, 14 nor am I a relative or employee of any of the part-ies' I 5 attorney or counsel connected with the action, nor am 16 I fmancially interested in the action. 17 Dated this 24th day of January, A.D., 2015. 18 19 20 21 22 CYNTHIA SILVERBERG, Notary Public 23 24 25 CERTIFICATE OF OATH 2 STATE OF FLORJDA ) 3 COUNTY OF DUVAL ) 4 I, the Widersigned authority, certify that Page 110 5 JEFFREY MARCUS GRAY personally appeared before me and 6 was duly sworn. 7 WITNESS my hand and official seal this 24th 8 day ofJanuary, 2015. 9 lO 11 12 CYNTmA SILVERBERG, Notary Public 13 Notary Public.State ofFlorida My Commission Expires: 14 15 16 17 18 19 20 21 22 23 24 25 Page 28 (Pages 109-110) Georgia Winegeart & Associates 301 West Bay Street, Suite 1450, Jacksonville, Florida 32202 RAS00000529 AFFIDAVIT OF JOEL EDWARD CHANDLER BEFORE ME, the undersigned authority, personally appeared JOEL CHANDLER, who after being duly sworn, deposes and says that: I. My name is JOEL CHANDLEK 2. I am over eighteen ( 18) years of age. 3. I am a resident of Polk County, Florida. 4. I have personal knowledge of every assertion made in this affidavit. · 5. Citizens Awareness Foundation, Inc., (herein "CAFI"), was fonned as a Florida not-for-profit corporation by Martin O'Boyle in concert with his son, Jonathan O'Boyle. 6. Jonathan O'Boyle is an attorney admitted in Pennsylvania and New Jersey, but not admitted to practice in Florida. 7. In January 2014, I was solicited by Martin O'Boyle to lead a not-for-profit corporation that was, he said, intended to promote open goveroment. That not-for-profit corporation was created at Martin O'Boyle's direction and became known as the "Citizens Awareness Foundation, Inc." or"CAFI." 8. During my discussions with Martin O'Boyle, wherein he sought to hire me to serve as the leader of CAFJ, we explicitly agreed that CAFI would have an independent Board of Directors; that the Board of Directors would be entirely free from the influence of Martin O'Boyle or the O'Boyle Law Firm; that I would have absolute and sole discretion regarding the conunencement and resolution of open goveroment litigation on behalf of CAFI, and; subject only to the independent Board of Directors, I would have the authority to select and retain law firms for the purpose of engaging in open government litigation. EXHIBIT I .A RAS00000530 9. During January or February of2014, I participated in a telephone conversation with Martin O'Boyle and Robert "Bob» Tweel, a tax attorney from West Virginia. Martin O'Boyle and I discussed with Mr. Tweel the absolute necessity that CAFI be a legitimate not-for-profit entity. This included, but was not limited to, the requirement that CAFI use a variety of law firms to represent it so as to avoid the appearance of self -dealing. 10. Martin O'Boyle indicated to Mr. Twee! and to me that he was going to loan all necessary monies to fund CAFI and, after 50l(c)(3) status was acquired, write off as a charitable donation all of the monies he had loaned to CAFI. After leaving this meeting I was particularly encouraged that Martin O'Boyle was genuine in his interest to establish a bona fide not-for-profit entity of which I would serve as the Executive Director and that CAFI would afford me the opportunity to more effectively continue my work as a civil rights activist and advocate for open government. 1 1. Martin O'Boyle appointed Brenda Russell, William Ring and Denise DeMartini to the CAFIBoard. 12. Brenda Russell is Martin O'Boyle's long time secretary. She was never present for meetings. In fact, no formal meetings of the Board were ever called or held. For a brief time, Brenda Russell collected my travel and business receipts, all of which were subject to the approval of Martin O'Boyle. 13. William Ring is Martin O'Boyle's longtime business associate and corporate attorney. 14. Denise DeMartini is the long-time employee of Martin O'Boyle or entities that he controls. 15. All of my negotiations for employment by CAFI were with Martin O'Boyle. At no 2 RAS00000531 time did I engage in any negotiations regarding the details of my employment, including my compensations, with anyone other than Martin O'Boyle. 16. At Martin O'Boyle's direction I drafted and signed a proposed memorandum of understanding regarding my employment by CAFI.I have never received a copy of the proposed memorandum of understanding signed or approved by the board of CAFI. 17. I served as the Executive Director of CAFI for approximately five (5) months, through the end of June 2014. 18. I resigned because of repeated instances of conduct perpetuated by Martin O'Boyle, Jonathan O'Boyle, William Ring, Denise DeMartini, and some of the attorneys at the O'Boyle Law Firm, P.C.,lnc., (herein the "O'Boyle Law Finn"), as set forth herein, which I believe may be criminal, fraudulent and unethical. 19. My relationship with the O'Boy!e Law Firm was not limited to my capacity as the Executive Director of CAFI. As the individual plaintiff in several open government lawsuits, I had retained the O'Boyle Law Firm as my personal legal counsel. 20. My communications with the attorneys of the O'Boyle Law Firm, including Jonathan O'Boyle, affected both CAFI and me, as an individual client. 21. Martin O'Boyle and Jonathan O'Boyle told me that Martin O'Boyle was funding the O'Boyle Law Firm. 22. Martin O'Boyle told me that he was also funding CAFI. 23. The Martin O'Boyle business entities, including Commerce Group, Inc., CAFI, and the O'Boyle Law Finn operated from the same physical location and were controlled by Martin O'Boyle. 24. Despite assurances that CAFI would be independent and not-for-profit, Martin 3 RAS00000532 O'Boyle and the O'Boyle Law Finn used CAFI for the sole purpose of generating attorney's fees for the O'Boy!e Law Finn. 25. Throughout my tenure with CAFJ, I repeatedly demanded that lawsuits not be filed or settled without my direct authorization. 26. In spite of Martin O'Boyle's initial assurances to the contrary, I was not permitted to retain legal counsel on behalf of CAFI, other than the O'Boyle Law Finn. William Ring, CAFI's President and Martin O'Boyle's proxy, communicated this to me. 27. On numerous occasions, I learned that the O'Boyle Law Finn, on behalf of CAFI, had filed lawsuits, without my knowledge or authorization. 28. The O'Boyle Law Firm routinely settled cases without written fee agreements, contingency agreements or closing statements. No accountings of the monies received were provided to me despite my repeated requests for that documentation. 29. Repeatedly, I advised Martin O'Boyle, William Ring and Jonathan O'Boyle that my other personal attorneys had advised it was a serious Bar violation to disburse settlement funds without client approval or closing statements. 30. Despite my protests, the O'Boyle Law Firm continued to file and settle lawsuits on behalf of CAFf and to collect and keep settlement payments. At no time was I ever presented with any form of accounting for legal fees or the disbursement of settlement payments. 31. During the O'Boyle Law Firm's representation ofCAFl and me, I was personally present, or present by telephone, at numerous O'Boyle Law Firm meetings. Denise DeMartini, Martin O'Boyle's executive assistant and Director of CAF!, conducted these aw finn meetings. During these meetings, and in my presence, many pending 4 RAS00000533 cases were discussed. These discussions included the details of cases to which neither CAFI nor l were pllrties. Denise DeMartini is not a member of the Florida Bar. 32. It became commonplace for Martin O'Boyle to express his opinions and to offer his advice with respect to litigation strategies and on the conduct of CAFI lawsuits as well as the cases of other firm clients. Jonathan O'Boyle actively participated in these discussions and, in my presence, directed the work of O'Boyle Law Firm attorneys and made litigation decisions. 33. During the course of my employment I learned that Martin O'Boyle directed his secretary to file in excess of 100 public records requests to the Town of Gulf Stream, under the pretense that these were being filed on behalf of CAFI. He also ordered that lawsuits be filed by CAFI against the Town of Gulf Stream. This was done without my authority and litigation was filed over my objection. 34. When I complained about the fact that Martin and Jonathan O'Boyle were not honoring the commitment that I would have sole authority to make public records requests and conduct litigation, I was told by William Ring that this was "the way Big Daddy wants it", i.e., Martin O'Boyle. Otherwise, "Big Daddy will turn-off the spigot of money". 35. Jonathan O'Boyle advised me that he was not a member of the Florida Bar but would be become a member within days. During the five months that I worked with CAFI, Jonathan O'Boyle worked full-time at the O'Boyle Law Firm providing legal advice, directing the administration of cases, and assuming responsibility for cases. 36. The O'Boyle Law Firm and Jonathan O'Boyle prosecuted and filed some cases without my permission and settled some cases without my knowledge or consent. 5 RAS00000534 37. No retainer agreements were ever entered into with me on behalf ofCAFI. No contingency agreements were entered into with me on behalf of CAFI. No closing statements were ever presented to me and it appears that all monies that were solicited from defendants were paid directly to the O'Boyle Law Firm. 38. Martin O'Boyle, through his entities, funded all of the filing fees and expenses of CAFI as well as the expenses of the O'Boyle Law Firm. CAFI has now filed scores, if not hundreds, of cases against state and local agencies throughout Florida as well as various state contractors. 39. The employees of all of Martin O'Boyle's entities, including The Commerce Group, Inc., CAFI and the O'Boyle Law Firm were shared. Denise DeMartini and William Ring worked for Martin O'Boyle, CAFI and the O'Boyle Law Firm. 40. Although Martin O'Boyle named Denise DeMartini a director ofCAFI, she also directed the operations of the O'Boyle Law Firm and conducted law firm meetings. 41. Denise DeMartini repeatedly stated that CAFI was required to file at least one hundred lawsuits a month; that all lawsuits had to he directed to the O'Boyle Law Firm for prosecution, and; that as my direct supervisor, she would evaluate my performance based upon my ability to deliver a minimum of twenty-five case per week to the O'Boyle Law Firm. 42. Through William Ring, Martin O'Boyle insisted that the O'Boyle Law Finn handle all litigation. 43. Martin O'Boyle told me he had unlimited money to pay filing fees for CAFI cases and I was to file as many cases as possible. 44. When l asked Martin O'Boyle to quantifY how many cases he was willing to finance 6 RAS00000535 he said it was virtually unlimited. When I again tried to clarizy by asking him if he was willing to finance three thousand (3,000) cases in a single year, he said "sure." 45. When !learned it was the policy and practice of the O'Boy!e Law Firm to demand settlement of cases against government entities and state contractors for attorney's fees in excess of the fees actually earned I was livid. In fact, I confronted William Ring, Denise DeMartini and Jonathan O'Boyle in May of2014 and stated in unequivocal terms that I would resign if it didn't stop. 46. In one telephone conversation with Jonathan O'Boyle I warned him at least six times that I was going to resign and that I objected to Denise DeMartini's demands that l produce I 00 cases per month, her control of the O'Boyle Law Firm and the windfall scheme of collecting more monies in attorney's fees from defendants, than had actually been earned. 47. Despite these complaints, William Ring, Denise DeMartini and Jonathan O'Boyle told members of the firm that I had authorized the windfall scheme. When I learned of this I confronted those involved. Nick Taylor, Esquire confirmed that despite my objection, the windfall scheme would continue as finn policy. Shortly thereafter, I announced my resignation. 48. Ryan Witmer and Giovanni Mesa announced they were also going to resign. 49. William Ring announced he was going to become a member of the O'Boyle Law Firm at about that lime. 50. After I resigned, Martin O'Boyle contacted me by telephone and demanded that I withdraw an email I had sent to Nick Taylor regarding Jonathan O'Boyle's unlicensed practice of law and Jonathan O'Boyle's authorship of the windfall scheme. During that 7 RAS00000536 call, which was my last conversation with Martin 0 'Boyle, he repeatedly threatened to bring great "unpleasantness" to my life ifl failed to renounce my email to Nick Taylor. 51. Thereafter, Martin O'Boyle repeatedly attempted to contact me by telephone and email seeking my assistance to facilitate CAFI in filing additional lawsuits. 52. After resigning from CAFI I sent an email to numerous newspaper and television news reporters announcing my resignation. I copied that announcement to dozens of individuals, including Robert Sweetapple, Esquire, to notity them of my disassociation and disapproval of the O'Boyles and their activities. 53. Within a few days of my resignation from CAFI, I granted an interview with a reporter from the Lakeland Ledger and provided many of the details contained within this affidavit. 54. Prior to emailing Robert Sweetapple, 1 had never met him, spoken to him, nor had he or any members of his firm contacted me. 55. Prior to my emailing the law firm of Jones Foster, I had never had any contact with Joanne O'Connor, Esquire, or any member of that law firm. 56. My subsequent contact with Robert Sweetapple and Joanne O'Conner was entirely the result of own initiative. 57. I sent my email to Robert Sweetapple because I knew he represented the Town of Gulf Stream, which I believed was being victimized by Martin O'Boyle and the O'Boyle Law Firm and I was concerned that the conduct of Martin O'Boyle and the O'Boyle Law Firm might be illegal and fraudulent. 58. I believed that I had a duty to make all victims, including the Town of Gulf Stream, aware of what I learned during my association with Martin and Jonathan O'Boyle. For 8 RAS00000537 example, Martin O'Boyle's orchestration of more than one hundred public records requests being served upon the Town of Gulf Stream, allegedly under the name of CAFI, but without my authorization; Martin O'Boyle's direction that lawsuits be filed by the O'Boyle Law Finn in the name ofCAFI against the Town of Gulf Stream but without my authorization, and; in spite of my objections, Martin 0' Boyle's use of CAFI as a weapon in his personal vendetta against the Town. 59. Prior to contacting Robert Sweetapple to make him aware of my concerns regarding Martin and Jonathan O'Boyle's conduct, I met with numerous private attorneys. As a result of those meetings I concluded that I had a duty to disassociate myself from the O'Boyles and to make full disclosure of any illegal and fraudulent activities. I have also contacted numerous other victims and their attorneys to advise them of the conduct of the O'Boyles and to provide them with evidence of such conduct. 60. Before speaking with Robert Sweetapple on the phone I spoke with Joanne O'Connor by telephone and· made her aware of the misconduct. 61. I then provided to Robert Sweetapple evidence of what I believe may be fraudulent and criminal conduct as well as a detailed chronology of events. 62. Thereafter, I spoke with Robert Sweetapple and gave him permission to meet with me and to take a voluntary sworn video statement concerning my involvement with Martin O'Boyle,Jonathan O'Boyle, CAFI and the O'Boyle Law Firm. 63. At all times Robert Sweetapple made me aware ofthe application of the lawyer-client privilege, both as it pertained to CAFI and to me personally. I determined, based upon independent legal advice, that! was fully permitted and had a duty to disclose what I believe to be the criminal and fraudulent conduct of Martin O'Boyle, Jonathan 9 RAS00000538 O'Boyle, CAP! and the O'Boyle Law Finn. I also voluntarily waived privileged matters that arose from the joint representation by the O'Boyle Law Finn. 64. In spite of the many contrary assurances made by Martin O'Boyle to me, including the exercise of my independent judgment and meaningful economic resources to be used to promote the public's right to access government records and meeting, in reality CAFJ's sole purpose is to serve as an exclusive in-house mechanism whereby the O'Boy!e Law Firm can generate legal fees by filing hundreds of open government lawsuits. 65. The egregiousness ofthe scheme was exacerbated by the O'Boyle Law Firm's policy of demanding excessive and unearned legal fees from defendants as a condition of settlement. 66. Simply put, CAFI is a profit-generating scheme funded by Martin O'Boyle to produce fees for his son's legal practice. 67. Allegations that Joanne O'Conner, Robert Sweetapple or their firms purposely solicited and obtained confidential information from me is false. The allegation that this was done to gain an unfair advantage in litigation is further false. 68. The information that I provided to Robert Sweetapple and Joanne O'Connor was not intended to provide an unfair advantage to the Town of Gulf Stream, but to make the Town and all other victims aware of what I believe to be the fraudulent, criminal and professionally unethical conduct of Martin O'Boyle, Jonathan O'Boyle, CAFI and the O'Boyle Law Firm. 69. Robert Sweetapple and Joanne O'Connor did not solicit privileged information from me. I voluntarily contacted them and made my own determination, after meetings with 10 RAS00000539 independent counsel, as to what information and documents to provide to victims. 70. My sole motivation tor contacting the media, victims and their attorneys, proving evidence, inviting the taking of my sworn statements and authoring this affidavit is to protect the essential civil right of all Floridians to know what their government is doing in their name and at their expense. It is my considered opinion that the unconscionable conduct of Martin O'Boyle, Jonathan O'Boyle, CAFI and the O'Boyle Law Firm serves as an example of the abuse of our legal system and will be used by opponents of open government as an excuse to limit the public's right to know. FURTHER AFFIANT SA YETH NA UGH . SWORN TO AND SUBSCRJBED before me this.;;/J day of October, 2014. AMBER COLSON KtLLY Notary ?ubllc • Stalo ol Flotlda My Comm. Expires May 31, 2015 Comml"lon 11 EE 166909 Personally known I Produced Identification Identification produced:__,_f\""""'. _,Dl"-""------ ll N~~~cc.m~ Jt~eof~~~ My Commissions Expires: {l'\0.-~ 31,1_0 \S RAS00000540 OConnor, Joanne M. From: Sent: To : Robert Sweetapple <rsweetapple@sweetapplelaw.com> Wednesday , October 08 , 2014 9:50AM JOConnor@jonesfoster.com Subject: Fwd: O 'Boyle Credit card fraud Regards, Bob Sweetapple Begin forwarded message: From: Pleadings < pleadings@sweetapplelaw.com> Date: October 7, 201 4 at 10:26 :13 PM EDT To: Cynthia Bailey< cbailey@sweetapplelaw.com>, Robert Sweetapple < rsweetapple@sweetapplelaw.com>, Deborah Smith< dsmith@sweetapplelaw.com> Subject: FW: O'Boyle Credit card fraud From: Joel Chand ler[SMTP:JOELCHANDLER@FOGW ATCH.ORG] Sent: Tuesday, October 7, 2014 10:26:08 PM To: Pleadings Subject: O'Boyle Credit card fraud Auto forwarded by a Rule Bob, I'm not sure if I mentioned this previously, but my understanding is that the firm may have engaged in some fraudulent activit y in February or March. They were the guests of CAFI at an awards lun cheon sponsored by the Florida F ir st Amendment Foundation in Tallahassee. Originally they had planned to stay at a hotel overnight and booked some rooms. Then they decided to fly up to Tallahassee in a private charter plane the day of the event and flew back immediately afterwards. They then tired to beat the hotel out of the cost of the rooms by claiming in letter when they tried to check in the night clerk refused to give them their rooms. This was all in an attempt to save a few hundred do ll ars (with no regard for some poor working stiffs job). As I understand it the letter was signed by Beth Kanaly the firm's paralegal weeks but the event was before she even started with the firm. The le tter to the hotel and the credit card company was actually drafted by Denis e DeMartini. Let me know if you want more details. Sent from my iPad 1 RAS00000541 OConnor, Joanne M. From: Sent: To: Robert Sweetapple <rsweetapple@sweetapplelaw.com> Monday, October 20 , 2014 2:50PM JOConnor@jonesfoster.com Subject: Fwd: Tallahassee Trip Regards, Bob Sweetapple Begin forwarded message: From: Pleadings < pleadings@sweetapplelaw.com> Date: October 20,2014 at 10:26:44 AM EDT To: Cynthia Bailey< cbailey@ sweetapplelaw.com>, Robert Sweetapple < rsweetapple@sweetapplelaw.com>, Deborah Smith< dsmith@sweetapplelaw.com> Subject: FW: Talla hassee Trip From: Joel Chandler[SMTP:JOELCHANDLER@ FOGW ATCH .ORG] Sent: Monday, October 20, 20 14 10:26:35 AM To : Pleadings Subject: Tallahassee Trip Auto forwarded by a Rule Bob, As we discussed , please find below a brief narrative regarding what I believe to be suspicious activity on the part of the O 'Boyle Law Firm. Three current or former employees of the O 'Boyle Law Firm have related virtually identical details regarding the making of hotel reservations by the O 'Boyle Law Firm and the Firm 's subsequent attempts to avoid paying for those hotel room s . The fo lks who gave me these details have a sked that I keep their names confidential due to fear of retaliation by Marty O 'Boyle. In early 2014 (in March I think) the Citi zens Awareness Foundation, Inc. sponsored a table at an awards luncheon for the Florida First Amendment Foundation. The luncheon was held at the Governor's Club in Tallahassee and was attended by numerous newspaper editors and the leadership of the Florida Legislature. In fact, Florida Senate President Don Gaetz sat at our table and Hous e Speaker Will Weatherford was at the next table. 1 RAS00000542 In an effort to help the Firm network with other open government advocates, newspaper editors and Florida political leaders, I invited Jonathan O 'Boyle and his attorneys to attend as my guests . Prior to the luncheon I worked with the Firn1's paralegal, Norma Lenna, to coordinate travel and hotel arrangements. I thought it would be beneficial if I stayed at the same hotel as the Firm's attorneys because it would afford the opportunity for all of us to become better aquatinted in an informal setting. To that end Norma made reservations at a Best Western hotel in Tallahassee. My understanding is that she made reservations for the night before the luncheon for Jonathan O'Boyle, Ryan Witmer, Giovanni Messa and Marrett Hanna. In the end, the Firm's attorneys did not travel to Tallahassee the day before the luncheon. Instead, they chartered a private plane and flew up the morning of the event. In fact, they arrived late and left within minutes of the conclusion of the luncheon. That, of course, entirely negated the whole purpose of my invitation because there was no time to network with the room full of open government advocates, newspaper editors and political leaders. I have been told by three current and former Firm employees, that in a effort to avoid paying for th e rooms reserved by Norn1a Lenna, Denise DeMartini drafted a letter or email to the hotel and the credit card company claiming that when the Firm 's employees arrived the day before the luncheon at the hotel, the ni ght desk clerk refused to allow them to check-in. Of course, the y did not arrive the night before but late the morning of the luncheon. I also, understand that the letter drafted by Denise DeMartini was falsely signed by Beth Kanaly, Norma Lenna's replacement without Beth's knowledge. 2 RAS00000543 yrick enjoy a day on the beach in al Society ~Boca ar Volume 7 Issue 10 Gulf St(ea_rn Town pursues RICO case against litigious residents By Dan Moffett The hostilities between the town of Gulf Stream and two litigious residents appear destined to get a whole lot more hostile in the weeks ahead. And the case the town is preparing against Martin O'Boyle and Christopher O'Hare could ripple through dozens of communities across the state. Gulf Stream commissioners have given unanimous approval to a legal strategy that will invoke the federal RICO (Racketeer Influenced and Corrupt Organizations) statute against O'Boyle and O'Hare, alleging they have engaged in a pattern of behavior intended to intimidate, harass and force settlements from public officials and governments. Beyond Gulf Stream, town officials say the class - action RICO suit will allege that O'Boyle used a group he founded called the Citizens Awareness Foundation to generate settlements from frivolous public re cords suits acr oss the state - 1e ter, a ~ 1geS own 1 the fa sets. up: ray 's RA, in commun ities such as Fernandina Beach, Miami, Bradenton, Cutler Bay and . Miami Lake s. "We thought this was about a feud ill Gulf Stream," said Mayor Scott Morgan. "But we learned it was a lot more ." Commissioners · unanimously approved hiring a team of outside lawyers that includes Gerald Richman, a prominent West Palm Beach attorney, who will spearhead the federal RICO case. · Richman told the commission that O'Boyle and his Citizens Awareness Foundation had used a "scorched . earth strategy" ' See RICO on page 6 ,1\rtsPaper 'Kiss of the Ocean' explores art of the Panama Canal. Page AT11 RAS00000544 . . . . . 6 News T he COASTAL STAR \ ' RICO Continued from page 1 against Gulf Stream and many other communities. "We're well familiar with their tactics," he said. Said Morgan: "All the talk about open public access and white knights on chargers helping the common man is nonsense. This has all been about money." 'Volume of cases' described O'Boyle founded Citizens Awareness in 2013 and Joel Chandler served as its executive director until the relationship soured after a few months earlier this year. A longtime advocate for Florida's public records laws, Chandler says he quickly became disillusioned with how CAF was run. "I thought the foundation as originally presented to me would be a wonderful resource for open government across the state," Chandler said. "What it ended up being is nothing more than a scheme to generate lawsuits for The O'Boyle Law F. " urn. Chandler said he had a quota of25 public records lawsuits per week to fill and, though he recommended other attorneys, O'Boyle insisted that all the work be done at The O'Boyle Law Firm. "The money was in the sheer volume of the cases," Chandler said. "A lawyer could use a template and file a suit in 15 minutes. We filed hundreds of cases. The typical settlement started at $5,000. It all adds up O'Boyle O'Hare to millions in legal fees." Fernandina Beach paid $5,000 to settle a lawsuit with Citizens Awareness this year. Miami Lakes paid $2,000 . Cutler Bay paid $2,250. In February, Citizens Awareness sued the city of Miami over a dispute about Mayor Tomas Regalado's records. The complaint was signed by Marrett Hanna, a lawyer with The O'Boyle Law Firm who is the wife of attorney Mark Hanna, who represents O'Hare. Though O'Boyle and O'Hare filed most of their complaints individually, the town's federal case will argue they often acted together. Chandler said he wanted to work with Gulf Stream, meet with Town Manager William Thrasher, and work out the foundation's differences over public records. "O'Boyle was adamant that we wouldn't do that," Chandler said. "Marty said we'll sue and that is all we do." After Chandler resigned his $120,000 -a-year job at Citizens Awareness in June, O'Boyle sued him, alleging he had misused the group's funds. O'Boyle did not return calls seeking comment for this story but has maintained his goal is to promote transparency in government. Suit greeted with applause Gulf Stream has already spent about $370,000 since January in the legal fight against O'Boyle and O'Hare, and billable hours are likely to skyrocket with a new stable of lawyers onboard. Besides Richman, the town hired a team of three Broward County lawyers who specialize in laws governing sober houses - a business venture O'Boyle says he is planning in the town. Morgan says Gulf Stream has no choice but to defend itself, and if it can win the RICO case, the town can collect attorneys' fees and triple damages from O'Boyle and O'Hare. "In my opinion, the town of Gulf Stream has suffered enough," Morgan said. "The town has been expending funds, and time and resources and Morgan morale, and the difficulties of hiring and retaining employees as the result of the scandalously malicious and frivolous lawsuits and public records requests by Mr. O'Hare and Mr. O'Boyle. I think it's time for the madness to stop.'' Between them, O'Boyle and O'Hare have filed dozens of lawsuits in the state and federal courts against Gulf Stream, as well as more than 1,500 public records requests with the town. The two have joined in at least one of those suits. O'Boyle and RAS00000545 O'Hare have both accused the town of being unwilling to negotiate a settlement. "It's disappointing and unfortunate when a town sues one of its citizens," said Mitchell Berger, a Fort Lauderdale attorney who represents O'Boyle. "It's unfortunate it has come to that over such a matter as public records." In September, O'Boyle told the commission he was prepared to "cost the town a million dollars" in legal fees, if commissioners did not negotiate with him. He did not attend the October meeting, saying he was out of town, but had an associate deliver a letter to Morgan. "In connection with the proposed RICO action, Mr. O'Boyle wishes to provide the commission with a warning that any such launch will be met with an unfriendly response," the letter said. "Mr. O'Boyle reminds the commission that the mayor has been inviting a fight for some time now. Mr. O'Boyle further reminds the commissioners, that should they decide to embark upon and support the ~ayor's grand battle, the likely result will be the demise of Gulf Stream." · O'Hare told the commission that filing a fede:::al case ensures a long and expensive battle: "I bet you $5 million from now, it's still going on." He urged the commission to settle. "RICO is for criminal activity, O'Hare said. "I didn't know it was a crime to ask for November 2014 public records." O'Hare said he didn't know about Citizens Awareness until recent weeks and is unaware of the group's activities. He said he only filed one lawsuit jointly with O'Boyle but did use The O'Boyle Law Firm. "Mr. Morgan's claim that this is all about money is simply not true," O'Hare said. "There is no profit to be had by asserting your right to a public record in court.". He told commissioners they will cost the taxpayers millions in legal fees on the RICO strategy: "And it's not your money." A cluster of 20 residents at the October meeting broke into applause over the commission's decision to file suit in federal court. "I don't usually agree with what Mr. O'Hare says, but he did say something with which I fully agree," resident Anthony . Graziano told the commission. "It is our money. And we would like you to spend it fighting these gentlemen." Morgan said the RICO action allows the town to settle many disputes in one case. "We can either take the approach of defending these individual cases as they come in and bleed to death by a thousand cuts," he said, "or we can take steps necessary to stop those cases by advancing this case. From the evidence that I've seen, it's a conspiracy of sorts to advance actions that essentially do nothing other than shake down municipal agencies." * RAS00000546 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.:______________________ TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own CLASS ACTION behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, vs. MARTIN E. O’BOYLE, an individual, CHRISTOPHER O’HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O’BOYLE, an individual, DENISE DEMARTINI, an individual, GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O’BOYLE LAW FIRM, P.C., INC., Defendants. __________________________________________________/ CLASS ACTION COMPLAINT I. Introduction. 1. The TOWN OF GULF STREAM (“Gulf Stream” or “Town”) brings this lawsuit as a class action, by and on behalf of state and local municipalities, municipal agencies, and their Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 1 of 49 RAS00000547 RICHMAN GREER, P.A. Miami  West Palm Beach 2 private contractors located in the state of Florida that have been victimized by a scheme to defraud and extort being carried out by a RICO Enterprise created by, and composed of, the Defendants. Through their RICO Enterprise, the Defendants have associated-in-fact with the sole purpose of unlawfully and illegally extracting settlement payments from the Class Members by first using the mails and the wires to deliver and advance frivolous public records request that are often intentionally inconspicuous. Then, the Defendants, through their RICO Enterprise, immediately use the mails and the wires to extort their victims by demanding that these municipal entities and agencies immediately settle with them and pay their allegedly incurred attorneys’ fees and costs as provided for in the public records statute, or, face protracted litigation and a flurry of additional frivolous public records request and lawsuits. The amount demanded by the Defendants to reimburse them for their attorneys’ fees and costs is fraudulent— far exceeding the actual costs and fees incurred in the frivolous public records request, resulting in a profit windfall for the Defendants. At least one Court has labeled these actions as an “unreasonable and flagrant abuse of the state [Public Records Act],” amounting to “nothing more than a scam.” (See ¶18, p.6, Final Order Denying Relief Under Public Records Act, entered by the Hon. Jack M. Schemer, Circuit Court Judge, Duval County, Florida, attached hereto as Exhibit “A.”). 2. The Defendants are prolific in their efforts—from March 5, 2013, through July 17, 2013, the RICO Enterprise filed over 400 public records request with Gulf Stream alone. From August of 2013 through present, the RICO enterprise filed more than 1,500 additional public records requests bringing the total number of public records requests to almost 2,000. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 2 of 49 RAS00000548 RICHMAN GREER, P.A. Miami  West Palm Beach 3 (See the Public Records Request Log attached hereto as Composite Exhibit “B”).1 For purposes of context—Gulf Stream is a tiny community, having a population of 974 residents and only 17 full time employees (four of whom work at Town Hall), with a land mass of less than one square mile. 3. The Defendants also target private entities that have contracted with municipalities, arguing that by virtue of their business relationship with a public entity, they are subject to the public records laws of Florida. The Wantman Group, Inc. brings this lawsuit as a class action on behalf of itself and other private entities that have been victimized by Defendants’ scheme to defraud and extort. 4. The Wantman Group is a multidisciplinary consulting firm which provides engineering, surveying and mapping, and environmental and planning services. The Wantman Group has six offices throughout the state of Florida. As part of its business, the Wantman Group has signed contracts with various municipalities and government agencies. For example, the Wantman Group signed a contract with the South Florida Water Management District, (“SFWMD”) through which it was to provide professional services to the SFWMD. II. Jurisdictional Allegations. 5. As this is an action brought under 18 U.S.C. §§ 1961, 1962 and 1964, this Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331. Additionally, this Court has original jurisdiction over the subject matter of this action pursuant to 18 U.S.C. §§ 1964 (a)-(c). Finally, this Court has personal jurisdiction over the Defendants pursuant to 18 U.S.C. § 1965. 1 This chart includes all public records request made to the Town, only a handful of which were not done by the Defendants. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 3 of 49 RAS00000549 RICHMAN GREER, P.A. Miami  West Palm Beach 4 6. Venue is appropriate in this district pursuant to 18 U.S.C. § 1965(a) as well as 28 U.S.C. § 1391(b)(1) and (2), as the Defendants reside in this district and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district. III. Parties. 7. Plaintiff, TOWN OF GULF STREAM, is a municipality organized and existing under the laws of the State of Florida. 8. Plaintiff, WANTMAN GROUP, INC., is a Florida corporation, which maintains its principal place of business at 2035 Vista Pkwy, Suite 100, West Palm Beach, Florida, 33411 in Palm Beach County, Florida. 9. Defendant MARTIN E. O’BOYLE, is a resident of Florida, residing in Palm Beach County, and more specifically, in the Town of Gulf Stream. Martin O’Boyle is also: (i) the President and owner of Defendants Commerce Group, Inc., Commerce GP, Inc., Commerce Realty Group, Inc., and CRO Aviation, Inc.; (ii) the sole member of Defendants Stopdirtygovernment, LLC, Our Public Records, LLC and Airline Highway, LLC; and (iii) a director of Defendant Public Awareness Institute, Inc. 10. Defendant WILLIAM F. RING (“Ring”) is an attorney licensed to practice law in the state of Florida, and upon information and belief, is practicing with and a partner or shareholder of Defendant The O’Boyle Law Firm, P.C., Inc., as well as its registered agent. Ring is also: (i) Vice-president of Defendants Commerce Group, Inc., CG Acquisition Co., Inc., Commerce Realty Group, Inc., and Asset Enhancement, Inc.; (ii) the founding President of Defendant Citizens Awareness Foundation, Inc., (iii) and the registered agent for Defendants Our Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 4 of 49 RAS00000550 RICHMAN GREER, P.A. Miami  West Palm Beach 5 Public Records, LLC, and Stopdirtygovernment, LLC. Ring has worked for Martin E. O’Boyle in some capacity for at least 25 years. 11. Defendant CHRISTOPHER O’HARE (“O’Hare”) is a resident of Florida, residing in Palm Beach County, and more specifically, the Town of Gulf Stream. O’Hare is also a client of Defendant The O’Boyle Law Firm, P.C., Inc. 12. Defendant JONATHAN R. O’BOYLE is a resident of Florida, residing in Palm Beach County, and while not an attorney that is licensed to practice law in Florida; he is the founding principal of Defendant The O’Boyle Law Firm, P.C., Inc. and currently its President, sole director and manager. Jonathan O’Boyle is the son of Defendant Martin O’Boyle, and is also a director of Defendant Public Awareness Institute, Incorporated. 13. Defendant DENISE DEMARTINI (“DeMartini”) is a resident of Florida, residing in Martin County. DeMartini is also: (i) an employee of Defendant Commerce Group, Inc.; (ii) Secretary of Defendant Commerce Realty Group, Inc.; and (iii) the current President and director of Defendant Citizens Awareness Foundation, Inc. DeMartini, while not a lawyer, managed the operations of Defendant The O’Boyle Law Firm during the time at issue in this suit. Like Defendant Ring, DeMartini has worked for Martin O’Boyle for more than 25 years. 14. Defendant COMMERCE GROUP, INC. (“Commerce Group”) is a Florida Corporation with its principal place of business located at 1280 W Newport Center Dr., Deerfield Beach, Florida 33442. Commerce Group is run by Martin O’Boyle. 15. Defendant CITIZENS AWARENESS FOUNDATION, INC. (“CAFI”), purports to be a Florida non-profit corporation, with its principal place of business located at 1280 West Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 5 of 49 RAS00000551 RICHMAN GREER, P.A. Miami  West Palm Beach 6 Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O’Boyle, together with his son Jonathan O’Boyle and Defendant Ring, created CAFI in or around January of 2014. 16. Defendant STOPDIRTYGOVERNMENT, LLC, (“Stopdirtygovernment” or “SDG”) is a Florida limited liability company with its sole member being Martin O’Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 17. Defendant OUR PUBLIC RECORDS, LLC, (“OPR”) is a Florida limited liability company with its sole member being Martin O’Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O’Boyle created OPR in or around April of 2013. 18. Defendant PUBLIC AWARENESS INSTITUTE, INC. (“PAI”) purports to be a Florida non-profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendants Martin O’Boyle and Jonathan O’Boyle, along with their family member Sheila O’Boyle (wife of Martin and mother of Jonathan), are the directors of PAI, which was created in or around May of 2013. 19. Defendant AIRLINE HIGHWAY, LLC (“AH”) is a Florida limited liability company with its sole member being Martin O’Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 20. Defendant, COMMERCE GP, INC. (“Commerce GP”), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O’Boyle is the President of Commerce GP. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 6 of 49 RAS00000552 RICHMAN GREER, P.A. Miami  West Palm Beach 7 21. Defendant CG ACQUISITION CO., INC. (“CGA”), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O’Boyle is the Director of CGA with Defendant Ring being its Vice-President. 22. Defendant, CRO AVIATION, INC. (“CRO”), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O’Boyle is the President of CRO. 23. Defendant, ASSET ENHANCEMENT, INC. (“AE”), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O’Boyle is the President of AE with Defendant Ring being the Vice-President. 24. Defendant, COMMERCE REALTY GROUP, INC. (“CRG”), is a Florida profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendant Martin O’Boyle is the President, Defendant Ring the Vice-President and Defendant DeMartini the Secretary of CRG. 25. In addition to the fact that they are all housed at the offices of Martin O’Boyle’s company Commerce Group, Defendants O’Boyle, Ring, DeMartini, CG, CAFI, SDG, OPR, PAI, AH, Commerce GP, CGA, CRO, AE, CRG all share the internet domain commerce-group.com and utilize the email address records@commerce-group.com. 26. Defendant, THE O’BOYLE LAW FIRM, P.C., INC., (“O’Boyle Law Firm”), is a foreign corporation, a law firm, having its alleged principal address located at 1001 Broad Street, Johnstown, Pennsylvania and a Florida office at 1286 West Newport Center Drive, Deerfield Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 7 of 49 RAS00000553 RICHMAN GREER, P.A. Miami  West Palm Beach 8 Beach, Florida 33442. Defendant Jonathan O’Boyle is the sole officer and director of the O’Boyle Law Firm, but is not licensed to practice law in the State of Florida. While serving as an officer of Defendant CAFI, a client of the O’Boyle Law Firm, Defendant DeMartini simultaneously managed the O’Boyle Law Firm’s operations. After resigning as an officer of CAFI, but retaining his position as an officer of several other firm clients, including Defendants CG, CGA, CRG and AE, Defendant Ring is now a partner with the O’Boyle Law Firm. 27. Defendant, RYAN WITMER, is an attorney licensed to practice law in the state of Florida and a resident of New York. A law school classmate of Jonathan O’Boyle, Witmer helped to establish the O’Boyle Law Firm and thereafter filed and prosecuted scores of public records lawsuits throughout the State of Florida against the putative class members on behalf of clients of the O’Boyle Law Firm, including, but not limited to, Defendants Martin O’Boyle, O’Hare and CAFI. 28. Defendant, GIOVANI MESA, is an attorney licensed to practice law in the state of Florida, practicing with the O’Boyle Law Firm. Mesa has filed and prosecuted scores of public records lawsuits throughout the State of Florida against the putative class members on behalf of clients of the O’Boyle Law Firm including, but not limited to, Defendants Martin O’Boyle, O’Hare and CAFI. 29. Defendant, NICKALAUS TAYLOR, is an attorney licensed to practice law in the state of Florida since 2008, who practices with the O’Boyle Law Firm. Taylor has filed and prosecuted scores of public records lawsuits throughout the State of Florida against the putative class members on behalf of clients of the O’Boyle Law Firm including, but not limited to, Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 8 of 49 RAS00000554 RICHMAN GREER, P.A. Miami  West Palm Beach 9 Defendants Martin O’Boyle, O’Hare, Commerce Group, CAFI, OPR, AH, CGA, CRO, AE and CRG. IV. Appropriateness of Class Action Treatment. 30. Plaintiffs bring this action on behalf of themselves and all others similarly situated pursuant to Fed. R. Civ. P. 23(b)(3). This action satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of Rule 23. 31. The proposed Class is defined as: All state or local municipalities, municipal agencies, or private contractors in the State of Florida, who have been served with a public records request by any of the Defendants and who either (a) paid a settlement amount in conjunction with, or to resolve the public records request; or (b) incurred attorneys’ fees and costs to respond to or litigate against public records requests from any of the Defendants. 32. Plaintiffs reserve the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 33. Plaintiffs do not currently know the exact number of Class Members or their identities. However, Plaintiffs believe that Class Members number in the hundreds, and are thus sufficiently numerous and geographically dispersed so that joinder of all Class Members is impracticable. 34. Attached hereto as Composite Exhibit “C” are a series of charts listing the current known potential Class Members, along with the style, case number, and county where the lawsuits were brought against them as part of the scheme to defraud and extort. As composite Exhibit “C” illustrates, there are at least 121 different Class Members (including Plaintiffs) Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 9 of 49 RAS00000555 RICHMAN GREER, P.A. Miami  West Palm Beach 10 composed of approximately 31 municipalities or agencies, and 90 private contractors in suits brought in nearly 2 dozen counties around the State.2 35. Plaintiffs further believe that each Class Member, including themselves, have claims with a common origin and share a common basis. The claims of all Class Members, as well as the Plaintiffs, originate from the Defendants’ pattern of racketeering activity and use of the RICO Enterprise to carry out such activities. 36. The claims of the Plaintiffs are typical of the Class, in that Plaintiffs, like all Class Members, were injured in their business or property by reason of the Defendants’ pattern of racketeering activity carried out by the RICO Enterprise, including the predicate acts of mail fraud, wire fraud, and extortion. 37. The RICO Enterprise, created by the Defendants, used the mail and the wires to send out what is usually an inconspicuous and frivolous public records request to the Class Members, often times under the guise of a false non-profit organization, and with a stated or implied purpose of advancing the public’s interest in government transparency.3 In reality, this bogus public records request was an essential first-step of the RICO Enterprises’ scheme to defraud and extort money from the class members—it was nothing more than bait, a records request for documents that the RICO Enterprise had no intention of reviewing, and instead, intended to be overlooked or missed by the receiving class member so as to trigger the next step in the RICO Enterprises’ scheme. 2 Exhibit “C” reflects suits brought by only Defendant CAFI, albeit, in advancing the goal of the RICO Enterprise. Upon information and belief, the number of class members will increase substantially. 3 The purpose for disguising the identity of the requesting party was twofold: (1) to fool the recipient into thinking a not-for-profit had a genuine desire to see the documents requested; and (2) to try and circumvent the conditional payment provided for in the Public Records law allowing a municipality to condition production of the requested documents on payment of costs and expenses. (See, Fla. Stat. §119.07(4)(d)). Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 10 of 49 RAS00000556 RICHMAN GREER, P.A. Miami  West Palm Beach 11 38. After the bogus records request was sent and hopefully overlooked, the RICO Enterprise would then use the mail and the wires to: (i) demand a settlement of the records request in excess of the actual attorneys’ fees and costs incurred by the Defendants; or (ii) file a frivolous lawsuit against the recipient of the bogus records request followed by the demand for settlement. The settlement demand was directly or indirectly accompanied by a threat of harm to property in the form of more bogus records requests, to be followed up with even more frivolous litigation. 39. This racketeering conduct damaged and injured the class members in three ways: (i) by requiring additional expenditures by the class members (i.e. hiring additional staff, paying overtime, etc.) to review and respond to the massive volume of bogus records requests;4 (ii) by coercing and sometimes extracting an inflated settlement amount from the Class Member to “make this go away,”; and (iii) by requiring the Class Member to defend against several spurious lawsuits brought only to increase the pressure and ultimately force the Class Member to accept the extorted settlement amount. 40. Pursuant to Rule 23(b)(3), there are numerous questions of law and fact common to the Class and those common questions predominate over any questions affecting only individual Class Members, including whether Defendants: a. are associated, organized and acting as an enterprise with the purpose of carrying out a scheme to defraud and extort; b. devised, followed, and actively pursued a scheme to defraud and extort, and what the scheme to defraud and extort consisted of, including; 4 See note 3, supra Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 11 of 49 RAS00000557 RICHMAN GREER, P.A. Miami  West Palm Beach 12 i. manipulation of the public records laws of Florida for financial gain, including the filing of frivolous, meaningless, and often inconspicuous public records request with no real need or intention to ever review or obtain the public records, but rather, simply set the stage for the next step in the scheme to defraud and extort; ii. advance fraudulent and inflated settlement demands as a matter of practice, policy, and pattern by fraudulently misrepresenting attorneys’ fees incurred by the O’Boyle Law Firm and its co-Defendant clients, including a substantial profit margin to be shared between the O’Boyle Law Firm and its so-called “non-profit” clients; iii. as a matter of practice, policy, and pattern, extorted compliance with the fraudulent and inflated settlement demands by threatening scores of additional frivolous public records requests to be followed by scores of additional fraudulent and inflated settlement demands with the sole intended consequence of the class members having to spend resources on responding to the bogus public records request and defending the frivolous litigation; iv. set up false and fraudulent companies, both non-profit and profit, in furtherance of the scheme to defraud, and using the mails and wires to incorporate, indoctrinate, or otherwise create these bogus companies in the State of Florida; Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 12 of 49 RAS00000558 RICHMAN GREER, P.A. Miami  West Palm Beach 13 v. established a captive Florida law firm run by a non-Florida attorney for the sole purpose of generating attorneys’ fees from settlements demanded through the use of the mails and wires; c. have engaged in conduct that constitutes a pattern of racketeering activity in furtherance of their scheme to defraud and extort; d. committed the predicate criminal acts of mail fraud, wire fraud, or extortion in furtherance of their scheme to defraud and extort; e. made false statements or misrepresentations of material fact regarding their identity so as to induce Defendants to act in reliance by foregoing the assessment of a special service charge to which Defendants would otherwise have been entitled under Fla.Stat. § 119.07(4)(d); 41. Additionally, another common question of law and fact is the appropriate measure of damages sustained by Plaintiffs and other Class Members. 42. A class action is superior to other methods for the fair and efficient adjudication of this controversy. Treatment as a class action will permit a large number of similarly situated persons to adjudicate their common claims in a single forum simultaneously, effectively, and without the duplication of effort and expense, and risk of inconsistent rulings that numerous individual actions would cause. Class treatment will also permit the adjudication of relatively small claims by Class Members who otherwise might not be able to afford to litigate their claims individually. This class action presents no difficulties in management that would preclude maintenance as a class action. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 13 of 49 RAS00000559 RICHMAN GREER, P.A. Miami  West Palm Beach 14 43. This forum is particularly desirable for the prosecution of this class action because Defendants all are residents in, or maintain a principal place of business in, this district, and presumably maintain many of those corporate records which are particularly germane to this action here. As a result of the foregoing, litigating on a class action basis in this forum will likely decrease the cost of discovery and prosecution, generally. 44. Plaintiffs have suffered the harm alleged on behalf of the Class, and have no interests antagonistic to the interests of any other Class Members. They are committed to the prosecution of this action and have retained counsel experienced in the prosecution of class actions, and in complex commercial actions in particular. Accordingly, Plaintiffs are adequate representatives and will fairly and adequately protect the interests of the Class. Plaintiffs are not aware of any other pending litigation concerning this controversy that involves Class Members, other than the individual cases brought by Defendants to enforce the frivolous and fraudulent public records requests. 45. Finally, the Class is readily definable. V. General Allegations. a. Florida Public Records Law 46. Pursuant to Chapter 119, Florida Statutes, commonly referred to as the Sunshine law, the legislature has determined that: “It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.” Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 14 of 49 RAS00000560 RICHMAN GREER, P.A. Miami  West Palm Beach 15 47. Florida prides itself on the transparency required of its elected officials, and its elected officials often pride themselves on providing such transparency to those that have elected them to serve. 48. Accordingly, pursuant to section 119.07, all qualifying entities: “shall permit the record(s) to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions….” In furtherance of this transparency, “a custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees whether such a record exists and, if so, the location at which the record can be accessed.” 49. The Public Records Act authorizes a custodian to collect a fee, prior to disclosing the records, for the cost of copying the records. Fla. Stat. § 119.07(4) (providing the custodian “shall furnish a copy ... of the record upon payment of the fee prescribed by law”). The custodian may also collect a special service charge for requests that “require extensive use of information technology resources or extensive clerical or supervisory assistance ....” (Fla. Stat. § 119.07(4)(d)). 50. Chapter 119 also extends the transparency requirement, as well as an obligation to respond to public records request, to a “contractor,” defined as “an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency….” See section 119.0701. 51. In addition to criminal penalties, public officers (or “contractors”) are subject to prevailing party attorneys’ fees in civil court upon a showing of “unlawful refus[al] to permit a Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 15 of 49 RAS00000561 RICHMAN GREER, P.A. Miami  West Palm Beach 16 public record to be inspected or copied…” Notably, this prevailing party fee provision is one- sided and can only be invoked by the party making the public records request, and not the agency or contractor responding to the request. 52. It is this threat of prevailing party attorneys’ fees that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme. a. The Origins of the Scheme to Defraud and Extort. i. Martin O’Boyle gets a taste of the potential ill-gotten gains associated with exploiting the Public Records Act. 53. Martin O’Boyle already had an extensive history filing public records requests in New Jersey, Florida and elsewhere. Martin O’Boyle previously used the public records process in an abusive fashion to file thousands of requests and vexatious and frivolous lawsuits, to cripple local governments into granting his development plans and other demands. 54. By way of example, in the case of Martin E. O’Boyle v. Peter Isen, 2014 WL 340104 (N.J.Super.A.D.)5, the Superior Court of New Jersey, Appellate Division, noted: From September 2007 through early July 2008, plaintiff [Martin O’Boyle] and members of his family filed multiple requests pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Longport’s only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, the clerk went to the emergency room because of the stress she attributed to the flood of OPRA requests. And, in February 2008, the Borough’s solicitor notified plaintiff that it would not accept any additional OPRA requests he filed, explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Longport had received 190 requests on October 16 and 17 and thirty filed October 31, 2007. 5 In the Isen case, Martin O’Boyle sued a resident of Longport for claiming Martin O’Boyle was “the enemy of Longport”. The suit for defamation was dismissed by summary judgment and affirmed by the appellate court. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 16 of 49 RAS00000562 RICHMAN GREER, P.A. Miami  West Palm Beach 17 55. Similarly, when his daughter was being prosecuted for driving under the influence in Palm Beach County, Florida, Martin O’Boyle inundated the Palm Beach County State Attorney’s Office both individually and through some of the other Defendants with over 1,300 requests for public records. 56. At one point, Martin O’Boyle had an application with four variance requests pending before the Town when his vexatious campaign of public records requests began in 2013. One of the variances in the request was granted, but O’Boyle was sent a letter of denial pertaining to the other three requests on March 24, 2013. 57. From February 2013 to July 2013, Martin O’Boyle filed hundreds of public records requests with the Town, overwhelming the records custodian with a nearly constant barrage of requests. When the Town’s limited staff could not keep up with the records requests in what Martin O’Boyle believed to be a reasonable period of time, he began filing public records lawsuits. 58. From April to July 2013, Martin O’Boyle filed approximately 16 public records lawsuits in his name and that of his affiliated entities, including Defendants Commerce Group and AH. Many were filed as separate actions on the same day to further burden the Town in responding to the complaints and to increase the costs of the litigation. 59. In July 2013, the Town settled with Martin O’Boyle and paid him $180,000.00, an amount Martin O’Boyle claimed to have accrued in attorney’s fees although his suits had been prosecuted pro se. 60. As a result of the foregoing experiences, and with Jonathan O’Boyle having graduated from law school in 2012, Martin O’Boyle and Jonathan O’Boyle realized that they Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 17 of 49 RAS00000563 RICHMAN GREER, P.A. Miami  West Palm Beach 18 could use the Public Records Act not just to frustrate the workings of city governments, but also to generate an ill-gained profit for themselves. Thus, no longer was Martin O’Boyle’s goal simply to torment local governments, bullying them into caving to his demands. The purpose was now to extort money. 61. In or around January 2014, Martin O'Boyle and his son, Jonathan O’Boyle, met for the purposes of developing a scheme to defraud and extort whereby they would form one or more contrived not-for-profit corporations. The purpose of the not-for-profit corporations would be to file thousands of public records requests with municipalities, government entities and state contractors throughout the State of Florida. Receipt and review of the requested records was not the O’Boyle’s priority. What Martin O’Boyle and Jonathan O’Boyle were really interested in was trying to cause the recipient of the public records request to overlook the request and then slap the recipient with a lawsuit or pre-suit settlement demand for an amount far in excess of their costs and fees and from which they would pocket a generous profit. ii. Creation of the O’Boyle Law Firm and Its Feeder Individuals and Entities. 62. Accordingly, and despite the fact that Jonathan O’Boyle was not a Florida lawyer, he opened and ran the O’Boyle Law Firm as a foreign profit corporation on February 10, 2014. This law firm was opened and operated from his father’s corporate offices of the Commerce Group, located in Deerfield Beach Florida. Both Martin O’Boyle and Commerce Group financed all activities of the O’Boyle Law Firm. 63. Once they had the law firm in place, Martin O’Boyle, Jonathan O’Boyle, and the O’Boyle Law Firm required “clients” —pre-textual plaintiffs that they could use in sending out frivolous and fraudulent public records requests and accompanying lawsuits. Accordingly, Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 18 of 49 RAS00000564 RICHMAN GREER, P.A. Miami  West Palm Beach 19 Martin O’Boyle and Jonathan O’Boyle, along with Ring and DeMartini, decided to activate several of Martin O’Boyle’s dormant corporations and not-for-profits, and to form several new not-for-profit entities, including Defendants CAFI, OPR, and PAI, as a front to make public records requests and create litigation for the O'Boyle Law Firm which then could be used to defraud and extort Class Members into paying inflated settlement amounts and line their pockets with the proceeds derived therefrom. 64. Martin O’Boyle, Jonathan O’Boyle, Ring and DeMartini knew that they could not, on the surface, own and control the non-profits they now intended to create as well as the law firm to which all of the so-called “clients” would be referred. So, to further wrap their scheme to defraud and extort in a shroud of legitimacy, they needed someone who is familiar with government transparency—someone that had vast experience in making public records request and someone with a reputation for doing so. They found that someone in Joel Chandler. b. Joel Chandler is Used to Lend Legitimacy To the Scheme To Defraud and Extort. 65. In January 2014, Martin O’Boyle and Jonathan O’Boyle contacted Joel Chandler (hereinafter referred to as “Chandler”). At the time Chandler had been working as a self- employed civil rights and public information activist. Chandler had considerable experience in making public records requests and in public records request litigation throughout the State of Florida, and had garnered a reputation as being a government transparency advocate. 66. Chandler was invited to the O’Boyle home in Gulf Stream, Florida, where both Martin and Jonathan O’Boyle resided. At the initial meetings, Chandler, the O’Boyles, and Witmer discussed the O’Boyle Law Firm’s capacity for handling public records litigation throughout the state. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 19 of 49 RAS00000565 RICHMAN GREER, P.A. Miami  West Palm Beach 20 67. As a result of the meetings, Martin O'Boyle incorporated an alleged not-for-profit entity. Now, Martin O’Boyle and his various entities were funding not only the O’Boyle Law Firm, but also a feeder organization—CAFI.6 68. Martin O’Boyle, on his own and through his other entities, provided actual cash to CAFI and the O’Boyle Law Firm as well as other consideration such as free rent, use of employees, and vehicles. To do this, Martin O’Boyle used both his own personal assets, and the assets of his business, Commerce Group. 69. Martin O’Boyle caused the entity, CAFI, to be incorporated in Florida and directed that his three close business associates, William Ring, Denise DeMartini, and Brenda Russell be named as the board of directors. 70. Martin O’Boyle also agreed with Chandler that he would hire Chandler to serve as the Executive Director of CAFI at a six-figure salary as well as substantial benefits. . 71. Chandler’s actual duty was to travel the state making hundreds of public records requests to public entities and state contractors. Thereafter, any evidence that would serve as a pretext for a lawsuit was to be forwarded immediately to Jonathan O’Boyle for the filing of litigation. Both CAFI and the O’Boyle Law Firm were operating from a room located in Commerce Group’s offices. 72. Prior to meeting the O’Boyles, Chandler had earned approximately $5,000.00 during the year 2013. Upon opening the alleged foundation, Martin O’Boyle agreed to pay Chandler $120,000.00 per year and to provide him with a car to drive around the state to make public records requests. Martin O’Boyle advised Chandler that he would entirely fund the 6 So-called “Feeder” relationships have previously drawn the scrutiny of the Florida Bar, which has found them to be unethical (See FL Eth. Op. 02-8). Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 20 of 49 RAS00000566 RICHMAN GREER, P.A. Miami  West Palm Beach 21 foundation and law firm on an unlimited basis, including the payment of all court filing fees. Martin O’Boyle, Jonathan O’Boyle, Ring and DeMartini did not tell Chandler at the time, but had planned that they were going to require that all of CAFI’s clients be represented by the O’Boyle Law Firm, that Chandler would not have exclusive control over whether a claim is settled and for how much, and that the O’Boyle Law Firm, CAFI, Martin O’Boyle, and Jonathan O’Boyle intended to obtain fraudulent settlements from unwitting defendants by claiming their fees and costs are an amount far in excess of what they actually were. 73. On January 27, 2014, Chandler was hired to act as Executive Director and CAFI was incorporated. 74. As instructed, and in furtherance of the scheme to defraud and extort, albeit unwittingly, Chandler began creating public records requests and legal claims and referred these to the newly created O’Boyle Law Firm. c. O’Hare’s Involvement. 75. In or about 2013, Chandler had previously met with Defendant Christopher O’Hare to discuss public records litigation. O’Hare was upset with the Town over the denial of his zoning application regarding construction of a metal roof. 76. In an attempt to force the Town to approve his roof, O’Hare recruited Chandler and along with the co-Defendants began to inundate the Town with public records requests. 77. O’Hare met regularly with Martin O’Boyle and Jonathan O’Boyle and agreed to work in concert with them and to file hundreds of public records requests in his own name as well as under fictitious names with the clerk for the Town of Gulf Stream. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 21 of 49 RAS00000567 RICHMAN GREER, P.A. Miami  West Palm Beach 22 78. O’Hare further agreed that after the Town was incapacitated and unable to timely and fully respond to the public records requests, the O’Boyle Law Firm would represent him in litigation against the Town, to generate money for the firm and the members of the Enterprise. 79. O’Hare began making public records requests to the Town in July 2013. 80. Initially, those public records requests were made by O’Hare in his own name or using anonymous email addresses ultimately determined to be associated with O’Hare.7 81. Although O’Hare would make numerous requests in a single day, the Town initially did not assess any special service charges to him for extensive use of information technology resources or extensive clerical or supervisory assistance before making responsive records available. 82. In response to sixty (60) individual public records requests O’Hare submitted to the Town in a single day - on January 16, 2014, the Town wrote to O’Hare to advise that since August 2013, O’Hare had made more than 500 public records requests, that the Town had already spent more than 200 hours responding to Mr. O’Hare’s prior requests, that O’Hare had failed to retrieve the vast majority of documents gathered by the Town in response to his requests, and that O’Hare had failed to pay the copy charges associated with those documents that had been made available or to pay estimates associated with other requests. 83. Thereafter, the Town began to assess special service charges against O’Hare for his extensive use of information technology resources and/or extensive clerical or supervisory assistance associated with responding to his requests. 7 See note 3, supra Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 22 of 49 RAS00000568 RICHMAN GREER, P.A. Miami  West Palm Beach 23 84. To avoid those special service charges associated with the time spent responding to requests from a single individual and make the Town believe that numerous individuals were requesting records, O’Hare began making public records requests in a single day or within a few days to the Town using fictitious or fraudulent personal identification. The fraudulent aliases used by O’Hare, many of which mock the names of Town officials including Town Manager Bill Thrasher, Mayor Scott Morgan and Commissioners Donna White, Joan Orthwein and Robert Ganger, include: Irnawaty Tirtarahardja irnawatyt@gmail.com8 Janto Djajaputra jantodjajaputra@gmail.com9 Rodrigo Tejera tejeratejeratejera@gmail.com10 Nevada Smith nevadasmithcowboy@gmail.com11 Frank Smith frank.smith.iconoclast@gmail.com12 Hokuikekai Keihanaikukauakahihuliheekahaunaele ll0i0i00lll0ii0llll00i0ii0llll@gmail.com Buffy Howell buffyhowell@gmail.com Bobby Gangrene bobbygangrene@gmail.com Billy Trasher billytrasher@gmail.com 8 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com. O’Hare has filed at least one public records lawsuit seeking recovery under the Public Records Act for a public records request filed in the name of Irnawaty Tirtarahardja. See O’Hare v. Gulf Stream, Case No. 2014CA008327XXXXMB AF (15th Judicial Circuit in and for Palm Beach County). 9 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com. Moreover, O’Hare has filed public records lawsuits seeking recovery under the Public Records Act for a public records request filed in the name of Janto Djajaputra. See O’Hare v. Gulf Stream, Case No. 2014CA006848XXXXMB AB (15th Judicial Circuit in and for Palm Beach County); O’Hare v. Gulf Stream, Case No. 2014CA007516XXXXMB AD (15th Judicial Circuit in and for Palm Beach County). 10 When a cursor hovers over this email address, a link appears to c@gmail.com. O’Hare has filed at least one public records lawsuit seeking recovery under the Public Records Act for a public records request filed in the name of Rodrigo Tejera. See O’Hare v. Gulf Stream, Case No. 2014CA006848XXXXMB AB (15th Judicial Circuit in and for Palm Beach County). 11 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com. 12 When a cursor hovers over this email address, a link appears to c@gmail.com. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 23 of 49 RAS00000569 RICHMAN GREER, P.A. Miami  West Palm Beach 24 Scotty Morgin scottymorgin@gmail.com Gonna White gonnawhite@gmail.com Freddy Farnsworth Frederick.freddy.farnsworth@gmail.com Groan Orthwein groanorthwein@gmail.com Americo Vespuchi discover.the.record@gmail.com Patrick Henry no.gov.secrets@gmail.com Wyatt Burp ok.coral.record@gmail.com Prigs Hypocrites prigs.and.hypocrites@gmail.com Harry LaFarge lafargetech@gmail.com13 85. O’Hare has made hundreds of additional public records requests to the Town using fictitious or fraudulent personal identification and continues to do so in order to fraudulently induce the Town not to assess special service charges against him associated with the extensive use of resources and clerical or supervisory assistance. 86. O’Hare has turned the nearly one thousand public records requests he has made against the Town into more than two dozen lawsuits. 87. O’Hare has been a client of the O’Boyle Law Firm generally, and Jonathan O’Boyle in particular, since the firm’s inception in January 2014. The O’Boyle Law Firm represents him in approximately 10 of the public records suits he has brought against the Town, with the first such suit filed by the O’Boyle Law Firm on his behalf on January 22, 2014. 88. On May 8, 2014, O’Boyle and O’Hare formally joined forces as Plaintiffs against the Town with the filing of a Complaint to Enforce Florida’s Public Records and Open Public Meetings Act. See O’Boyle and O’Hare v. Town of Gulf Stream, Case No. 13 O’Hare has filed at least one public records lawsuit seeking recovery under the Public Records Act for a public records request filed in the name of Harry LaFarge. See O’Hare v. Gulf Stream, Case No. 2014CC012274XXXMB AB (15th Judicial Circuit in and for Palm Beach County). Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 24 of 49 RAS00000570 RICHMAN GREER, P.A. Miami  West Palm Beach 25 2014CA005628XXXXMB AG (Circuit Civil Division, 15th Judicial Circuit in and for Palm Beach County). c. Chandler Realizes He is Being Used. 89. Towards the end of March and in early April 2014, Chandler learned that Ring and Martin O'Boyle were making public records requests directed to the Town of Gulf Stream, allegedly at the behest of CAFI, without his knowledge or consent. 90. In April 2014, when Chandler inquired as to why he was not informed about all lawsuits filed by CAFI, the organization over which he was the executive director, DeMartini explained to Chandler that she was Martin O'Boyle's key employee and the director on the board of CAFI to whom Chandler was to report. DeMartini further explained that she would be directing the flow of litigation to the O’Boyle Law Firm and that she would be calling the shots. 91. DeMartini, a non-lawyer, attended law firm meetings with Chandler and participated in reviews of all client matters, not just CAFI cases. She made personnel decisions for the O’Boyle Law Firm and managed the alleged law firm’s finances while claiming to be a board member of CAFI. 92. During this same time, DeMartini demanded that Chandler produce a minimum quota of 25 new lawsuits a week for the O’Boyle Law Firm to file. 93. In May 2014 DeMartini notified Chandler that she had full access to all of the O’Boyle Law Firm’s internal records and client files. She shared all client reports with Chandler, not just reports concerning CAFI. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 25 of 49 RAS00000571 RICHMAN GREER, P.A. Miami  West Palm Beach 26 94. After discovering that public records requests were being filed in the name of the foundation without his knowledge, Chandler again directed that all public records requests on behalf of CAFI be made by himself, or at the very least, that he be advised they are being made. 95. On May 16, 2014, DeMartini asked Chandler for a recap of the number of cases referred by CAFI to the O’Boyle Law Firm from January through May. DeMartini expressed her frustration to Chandler that he has only generated 211 cases in the 12 weeks since CAFI was created. 96. During May 2014 Chandler learned that the O’Boyle Law Firm had no written fee agreements or engagement letters between the O’Boyle Law Firm and CAFI. 97. By the end of May, DeMartini and Jonathan O'Boyle continued to express their frustration to Chandler. Chandler insisted on reviewing and verifying all lawsuits to be filed by CAFI. DeMartini and O’Boyle expressed concern that Chandler’s review was slowing down the flow of litigation generated by the firm. 98. By this point, it had become abundantly clear to Chandler that DeMartini, Ring and O’Boyle were only concerned with the volume of cases that could be generated , and of course the profits that could be had in such cases by way of fraudulent settlement demands, rather than any public service. This suspicion was confirmed when Chandler’s repeated attempts to inform Ring and DeMartini of opportunities to work with civil rights groups, public agencies, student groups and journalists on open government issues were completely ignored. 99. In June 2014, it came full circle. Chandler learned that Martin O’Boyle, Jonathan O’Boyle, the O’Boyle Firm, Commerce Group, CAFI, Ring, and DeMartini were operating a Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 26 of 49 RAS00000572 RICHMAN GREER, P.A. Miami  West Palm Beach 27 RICO Enterprise that was engaged in a scheme to defraud and extort the defendants with the hundreds if not thousands of public records requests that were made. 100. The scheme involved the firm demanding monetary settlements on behalf of CAFI (or others) far beyond the actual attorneys’ fees and expenses incurred and contemplated in F.S. §119.12, and to keep all of the proceeds, including the “windfall”. If the demands were not met, then the scheme called for intimidation via threat of additional bogus public records requests and frivolous litigation until the demands were met. 101. On June 30, 2014 Chandler arrived at the Commerce Group/CAFI/O'Boyle Law Firm office and presented his letter of resignation to Ring. Immediately thereafter, Martin O’Boyle demanded that Chandler retract his statement (in an email) confirming Jonathan O’Boyle’s complicity in the scheme to defraud and extort. Martin O’Boyle threatened Chandler that if he did not retract his statements concerning Jonathan O’Boyle’s involvement in the “windfall” scheme, Chandler would “force us to respond by making your life very unpleasant”. Thereafter Chandler refused to retract the emails and Martin O’Boyle repeated his threats several times. 102. As part of the scheme, the O’Boyle Law Firm has now filed hundreds of spurious lawsuits on behalf of O’Boyle, O’Hare, CAFI, and other pretextual entities and individuals including Defendants CG, SDG, OPR, PAI, AH, Commerce GP, CGA, CRO, AE, CRG. These defendants have become engaged in a massive scheme to generate and collect attorneys’ fees from Florida agencies and state contractors beyond any fees actually earned. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 27 of 49 RAS00000573 RICHMAN GREER, P.A. Miami  West Palm Beach 28 d. How the scheme operates: the Example of Gulf Stream. 103. The Town Of Gulf Stream has become the epicenter of the RICO Enterprises’ scheme—a sort of example, of what the Enterprise will do to all Class Members if allowed to continue with its pattern of racketeering activity. 104. Through the RICO Enterprise, Defendants have joined forces to barrage the Town with nearly 2,000 public records requests from fictitious e-mail addresses and purported not-for- profits. (See Composite Exhibit “B.”) Shortly thereafter, Defendants file suit against the Town, asserting unreasonable delay and seeking fees under the Public Records Act. At the same time, they threaten the Town that if it will not settle, it will be faced with hundreds of additional public records requests and dozens of lawsuits, along with the crippling associated costs of both. 105. For instance, in the first 28 days of September, 2013, the Town received 121 public records requests or approximately 6 requests per business day. All of those requests were made by Defendant Chris O’Hare (115) or Joel Chandler (6). With the exception of two requests made by O’Hare’s attorney, Lou Roeder, Esq., all of O’Hare’s requests were made to the Town by inconspicuous e-mail addresses that failed to indicate the requests were made on behalf of O’Hare: emailfinder.mail.mail@gmail.com, publicdocsearch@gmail.com, permit.record.search@gmail.com, record.public@yahoo.com, and account- information@pacificwest.com. 106. O’Hare’s requests were not spread over time; instead, he barraged the Town with multiple requests in a single day, e.g., 18 requests on September 4, 2013, 24 requests on September 20, 2013 and 58 requests on September 23, 2013. (See Composite Exhibit “B.”). On September 29, 2013, a Sunday, O’Hare sent the Town approximately 40 public records requests Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 28 of 49 RAS00000574 RICHMAN GREER, P.A. Miami  West Palm Beach 29 in a four (4)-hour period. The Town responded to the requests, producing documents, providing estimates of fees authorized by the Public Records Act or advising O’Hare that no responsive documents existed. O’Hare ultimately filed 7 lawsuits over those September 29, 2013, requests, alleging that the Town unreasonably delayed in responding to his requests, and has continued to litigate those suits solely to extract settlement payouts from the Town -- even though documents have been produced, he has failed to pay the required estimates or he has been unable to identify responsive records that exist but were not produced. 107. In the first 20 days of January 2014, O’Hare made approximately 94 public records requests to the Town by e-mail. Then, on January 21, 2014, O’Hare and O’Boyle joined forces to hit the Town with 15 public records requests in a single day; O’Hare making his requests by e-mail and O’Boyle making his in person. One of these was a request by O’Boyle for a copy of the Town’s sign-in-log. Although the Town produced the record to O’Boyle in less than 2 business days, the newly formed O’Boyle Law Firm seized on the opportunity to sue the Town on O’Boyle’s behalf, asserting unreasonable delay and seeking attorney’s fees. 108. By June 2014, the Enterprise had made more than 1,000 public records requests to the Town and filed more than two dozen public records suits against it, including more than one dozen suits seeking statutory attorneys’ fees filed by The O’Boyle Law Firm. In the month of June 2014 alone, the Enterprise hit the Town with approximately 180 public records requests. These requests were made by e-mail from Defendants O’Hare (using fictitious names), O’Boyle, CAFI, SDG, CGA, AH and Commerce GP. As noted infra, O’Boyle and O’Hare then appeared at the July 11, 2014 Town Commission meeting overtly threatening to cause the Town to spend increased legal fees or settle with him at risk of continued public records requests and lawsuits. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 29 of 49 RAS00000575 RICHMAN GREER, P.A. Miami  West Palm Beach 30 e. How the scheme operates: the example of Wantman Group. 109. On Saturday, April 19, 2014, Wantman Group received an email from “An Onomy” seeking the “Certificate of Insurance referenced on Page 6 of 16 of the South Florida Water Management District contract 4600002690.” A true and correct copy of the email is attached as part of Composite Exhibit “D.” 110. Approximately 3 weeks later, on or around May 8, 2014, and without any further inquiry to the Wantman Group, including a simple confirmation that the public records request was in fact received, CAFI, through its attorneys, Defendants Taylor and the O’Boyle Law Firm, filed a two-count complaint seeking a copy of the requested record, an immediate hearing, a declaration that Wantman Group violated Section 119.11, and of course, an award of attorneys’ fees and costs. A true and correct copy of the two-count complaint is attached hereto as part of Composite Exhibit “D.” 111. In response to the two-count complaint, Wantman Group, through counsel, sent a letter advising Mr. Taylor and CAFI that “Wantman was not aware of the Chapter 119 request,” as it was sent to an obscure individual and not the records custodian of Wantman. The letter also attached a copy of the requested document “in the spirit of cooperation,” and demanded that the lawsuit be dismissed. A true and correct copy of the May 29, 2014 letter from counsel is attached hereto as part of Composite Exhibit “D.” 112. Before Wantman Group even filed its Answer and Defenses to the complaint, Defendants Taylor, O’Boyle Law Firm, and CAFI sent an email to Wantman Group’s counsel offering to settle the public records dispute for $3,923.00. A true and correct copy of the email Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 30 of 49 RAS00000576 RICHMAN GREER, P.A. Miami  West Palm Beach 31 and attached draft settlement agreement from Defendants Taylor, O’Boyle Law Firm and CAFI is attached hereto as part of Composite Exhibit “D.” 113. Notwithstanding the document had now been produced voluntarily, Defendants Taylor, the O’Boyle Law Firm, and CAFI refused to dismiss the lawsuit, requiring Wantman Group to Answer the same. 114. Upon receipt of the Answer, Defendants Taylor, O’Boyle Law Firm, and CAFI immediately sent form discovery (not even tailored to the Wantman Group, but containing things completely inapplicable to Wantman) as an indirect threat that more litigation is to follow if the settlement demands are not assented to. 115. In all, Wantman Group has incurred substantial damages in having to respond to the bogus records request and then defend against the frivolous litigation. 116. This scheme to defraud and extort has directly injured the Class members as well as the Plaintiffs. To date, Gulf Stream has been injured in the amounts and categories set forth in Composite Exhibit “E” and Exhibit “F” hereto. 117. In light of the foregoing, Plaintiffs were damaged as a direct result of the RICO Enterprise based on Defendants’ fraudulent claims, backed-up by Defendant’s extortion and threats calculated to cause Class Members to spend money responding to bogus public records requests and defending frivolous lawsuits. VI. COUNT I—Violation of 18 U.S.C. § 1964(a) and (c). 118. Plaintiffs’ adopt and incorporate by reference paragraphs 1 through 117 above as though fully set forth herein. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 31 of 49 RAS00000577 RICHMAN GREER, P.A. Miami  West Palm Beach 32 119. Plaintiffs’ seek relief under 18 U.S.C. § 1964(a) of RICO to prevent and restrain Defendants from committing future violations of section 1962, including, but not limited to, ordering the Defendants to divest themselves of their interest in the Enterprise; impose reasonable restrictions on the future activities or investments of the Defendants to ensure no further engagement in a similar endeavor as described herein; and order dissolution of all corporate defendants. 120. Plaintiffs also seek relief under 18 U.S.C. § 1964(c) of RICO, and seek threefold the damages sustained by the Plaintiffs and the Class Members, along with costs of this suit, including a reasonable attorney fee. 121. The Plaintiffs, and each Class Member that Plaintiffs represent are persons within the meaning of 18 U.S.C. § 1964(c) and § 1961(3). 122. 18 U.S.C. § 1962(c) makes it unlawful “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Through § 1964(c), “any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States District Court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.…” Because the Plaintiffs, along with the Class Members, were injured in their business or property by Defendants’ violation of 1962, they are entitled to threefold their damages, attorneys’ fees and costs. a. The Enterprise. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 32 of 49 RAS00000578 RICHMAN GREER, P.A. Miami  West Palm Beach 33 123. The Defendants, through themselves and through their employees and agents, formed a union and association-in-fact enterprise that engages in, and the activities of which affect, interstate commerce. This Enterprise has as its goal, a scheme to defraud and intimidate through acts of extortion, municipalities, municipal agencies, private contractors of municipalities and anyone else subject to, or even arguably subject to, the Sunshine Law, into paying unjustified, grossly inflated and fraudulent settlement amounts so as to create and increase profits to the Enterprise. 124. Every Defendant had a role or position in the Enterprise, all of which worked together towards the common goal of defrauding or extorting municipalities, municipal agencies, private contractors of municipalities and anyone else subject to or even arguably subject to the Sunshine Law. The Defendants’ respective roles and their importance to the Enterprise, as well as how it advanced the interest of the Enterprise are as follows: a. Martin O’Boyle: Martin O’Boyle is one of the engineers of the Enterprise’s scheme to defraud and extort, as well as its principal financier through his various business entities. Martin O’Boyle directs the Enterprise, and is responsible for the following actions taken to advance the goal of the Enterprise: i. Financing the opening and continued existence of the O’Boyle Law Firm, along with his son, Jonathan O’Boyle; ii. Financing the opening and continued existence of CAFI, OPR and PAI; iii. Directing the operations of CAFI, OPR and PAI through his appointed directors and key employees of his other business entities such as Commerce Group. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 33 of 49 RAS00000579 RICHMAN GREER, P.A. Miami  West Palm Beach 34 iv. Utilizing his other business entities including Commerce Group, SDG, AH, CGA, CRO, AE and CRE to make spurious, frivolous, and baseless public records requests and to file resulting lawsuits to either generate windfall fees for himself, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm; or to extort a settlement payment for the victims. v. Mandating, under threat of no funding, that: 1. CAFI file no less than 25 cases per week; 2. All cases filed by CAFI and the other Defendants be referred to the O’Boyle Law Firm; and, 3. All cases be settled for an amount substantially in excess of the fees and costs incurred in the case. b. Jonathan O’Boyle. Jonathan O’Boyle is one of the engineers of the Enterprise’s scheme to defraud and extort, along with his father Martin O’Boyle. To advance the interest of the Enterprise, Jonathan O’Boyle has taken the following actions: i. Creating, and sustaining the O’Boyle Law Firm, a necessary element of the Enterprise; ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate windfall fraudulent and extortive fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm; iii. Directing the prosecution of hundreds of public records suits filed by the O’Boyle Law Firm throughout the State of Florida on behalf of other Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 34 of 49 RAS00000580 RICHMAN GREER, P.A. Miami  West Palm Beach 35 members of the Enterprise including, but not limited to, his father Martin O’Boyle, O’Hare, CAFI, Commerce Group, OPR, PAI, AH, CGA, CRO, AE, and CRG. iv. Ordering that public records suits be filed on behalf of Florida plaintiffs, such as Chandler, without knowledge or consent of the Plaintiffs; and, v. Ordering that, as a pattern and practice, all public records suits would be settled for an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise, and directing that settlement demands be made by the O’Boyle Law Firm to the Class Members in accordance with this pattern and practice using the mail or wires. c. Christopher O’Hare. Christopher O’Hare has taken the following actions to advance the Enterprise’s scheme to defraud: i. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fees for himself, Martin O’Boyle, Jonathan O’Boyle and the O’Boyle Law Firm and, ii. Fraudulently misrepresenting his identity in order to induce violation of the Public Records Act and to avoid fees owed by him thereunder. d. William Ring. William Ring is one of the engineers of the Enterprise’s scheme to defraud and extort, having served as Martin O’Boyle’s “right-hand” for more than 25 years. To advance the interest of the Enterprise, Ring has taken the following actions: Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 35 of 49 RAS00000581 RICHMAN GREER, P.A. Miami  West Palm Beach 36 i. Assisting with the creation of not-for-profit Defendants CAFI, PAI and OPR for the sole purpose of generating fraudulent, extortive and windfall attorney’s fees by the filing and prosecution of frivolous public records lawsuits; ii. Directing the operations of CAFI through key employees of Martin O’Boyle’s other business entities such as Commerce Group. iii. Mandating under threat of no funding, that: 1. All cases filed by CAFI and the other Defendants be referred to the O’Boyle Law Firm; and, 2. All cases be settled for an amount substantially in excess of the fees and costs incurred in the case. iv. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm; v. Ordering, that as a pattern and practice, all public records suits would be settled for an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise; and, vi. Purporting to serve as the Florida supervising attorney of the O’Boyle Law Firm (notwithstanding his total lack of litigation experience) in order to hide the fact that non-Florida attorney Jonathan O’Boyle is truly directing the firm’s activities, all in violation of the Rules Regulating the Florida Bar. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 36 of 49 RAS00000582 RICHMAN GREER, P.A. Miami  West Palm Beach 37 e. Denise DeMartini. Denise DeMartini is one of the engineers of the Enterprise’s scheme to defraud and extort, having served as Martin O’Boyle’s “left-hand” for more than 25 years. To advance the interest of the Enterprise, DeMartini has taken the following actions: i. Assisting with the creation of not-for-profit Defendants CAFI, PAI and OPR for the sole purpose of generating fraudulent, extortive and windfall attorney’s fees by the filing and prosecution of frivolous public records lawsuits; ii. Directing the operations of CAFI through key employees of Martin O’Boyle’s other business entities such as Commerce Group. iii. Mandating under threat of no funding, that: 1. CAFI file no less than 25 cases per week; 2. All cases filed by CAFI and the other Defendants be referred to the O’Boyle Law Firm; and, 3. All cases be settled for an amount substantially in excess of the fees and costs incurred in the case. iv. Ordering, that as a pattern and practice, all public records suits would be settled for an amount substantially in excess of the actual fees and costs incurred to generate a profit for the enterprise; and, v. Managing the operations of the O’Boyle Law Firm while simultaneously serving as an officer of its clients, including CAFI, and sharing confidences of those clients. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 37 of 49 RAS00000583 RICHMAN GREER, P.A. Miami  West Palm Beach 38 f. Commerce Group. To advance the interest of the Enterprise, Martin O’Boyle’s real estate development company, the Commerce Group, has taken the following actions: i. Financing the opening and continued existence of the O’Boyle Law Firm and the not-for-profit Defendants CAFI, OPR and PAI; and, ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. g. Public Awareness Institute, Inc. To advance the interests of the Enterprise, the Florida not-for-profit PAI has taken the following actions: i. Incorporating as a Florida not-for-profit corporation for the sole purpose of generating windfall attorney’s fees by the filing and prosecution of frivolous public records lawsuits; and, ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. h. Citizens Awareness Foundation, Inc. To advance the interests of the Enterprise, the Florida not-for-profit CAFI has taken the following actions: i. Incorporating as a Florida not-for-profit corporation for the sole purpose of generating windfall attorney’s fees by the filing and prosecution of frivolous public records lawsuits; and, Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 38 of 49 RAS00000584 RICHMAN GREER, P.A. Miami  West Palm Beach 39 ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive, and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. i. Our Public Records, LLC. To advance the interests of the Enterprise, the Florida not-for-profit OPR has taken the following actions: i. Incorporating as a Florida not-for-profit corporation for the sole purpose of generating windfall attorney’s fees by the filing and prosecution of frivolous public records lawsuits; and, ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. j. Stopdirtygovernment, LLC. To advance the interests of the Enterprise, SDG has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. k. Airline Highway, LLC. To advance the interests of the Enterprise, AH has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 39 of 49 RAS00000585 RICHMAN GREER, P.A. Miami  West Palm Beach 40 l. Commerce GP, Inc.. To advance the interests of the Enterprise, Commerce GP has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. m. CG Acquisition Co., Inc. To advance the interests of the Enterprise, CGA has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. n. CRO Aviation, Inc.. To advance the interests of the Enterprise, CRO Aviation, Inc. has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. o. Asset Enhancement, Inc. To advance the interests of the Enterprise, Asset Enhancement, Inc. has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm. p. Commerce Realty Group, Inc. To advance the interests of the Enterprise, CRG has filed spurious, frivolous, and baseless public records requests as well as resulting lawsuits solely to generate fraudulent, extortive and windfall fees for Martin O’Boyle, Jonathan O’Boyle, Ring, DeMartini and the O’Boyle Law Firm Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 40 of 49 RAS00000586 RICHMAN GREER, P.A. Miami  West Palm Beach 41 q. The O’Boyle Law Firm. At the center of the Enterprise’s scheme to defraud, the O’Boyle Law Firm has taken the following actions to advance the Enterprise’s interests: i. Profiting from improper illegal, and unethical feeder and fee-sharing relationships and sharing space with its non-lawyer clients, including Defendants Commerce Group, CAFI, OPR and PAI; ii. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits on behalf of its feeder clients, all of which are entities affiliated with and funded by the Enterprise or its members; and, iii. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. r. Ryan Witmer. Ryan Witmer is one of the engineers of the Enterprise’s scheme to defraud, along with his law school classmate and friend Jonathan O’Boyle. To advance the interest of the Enterprise, Witmer took the following actions: i. Creating the O’Boyle Law Firm and agreeing to serve as its purported Florida supervising attorney in order to hide the fact that non-Florida attorney Jonathan O’Boyle is truly directing the firm’s activities, all in violation of the Rules Regulating the Florida Bar; ii. Causing the O’Boyle Law Firm to profit from improper illegal and unethical feeder and fee-sharing relationships and to share space with its Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 41 of 49 RAS00000587 RICHMAN GREER, P.A. Miami  West Palm Beach 42 non-lawyer clients, including Defendants Commerce Group, CAFI, OPR and PAI; iii. Facilitating the unlicensed practice of law by Jonathan O’Boyle; iv. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits; and, v. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. s. Giovani Mesa. An attorney with the O’Boyle Law Firm, Mesa has taken the following actions to advance the Enterprise’s scheme to defraud: i. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits; and, ii. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. t. Nickalaus Taylor. An attorney with the O’Boyle Law Firm, Taylor has taken the following actions to advance the Enterprise’s scheme to defraud: i. Filing spurious, frivolous, and baseless public records requests as well as resulting lawsuits; and, Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 42 of 49 RAS00000588 RICHMAN GREER, P.A. Miami  West Palm Beach 43 ii. Using the mail and wires to demand that putative Class Members settle public records lawsuits in an amount substantially in excess of the actual fees and costs incurred to generate a profit for the Enterprise and fraudulently misrepresenting the amount of those fees and costs. 125. The members of the Enterprise set forth above, function in a fashion so as to become a continuing unit which furnishes a vehicle for the commission of the racketeering activity set forth below. The continuity of the Enterprises’ actions will be repeated in the future if it is allowed to continue. a. Pattern of Racketeering. 126. Pursuant to 18 U.S.C. § 1961(1), “racketeering activity” includes the predicate crimes of mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), and extortion (18 U.S.C. 1951). Under to 18 U.S.C. § 1341, “whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises…for the purpose of executing such scheme or artifice or attempting so to do” and uses the mails or other commercial carrier to do so, commits mail fraud. Similarly, under 18 U.S.C. § 1343, “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire,” commits wire fraud. Under 18 U.S.C. § 1951, extortion is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear (including fear of economic loss) ….” Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 43 of 49 RAS00000589 RICHMAN GREER, P.A. Miami  West Palm Beach 44 127. All members of the Enterprise have committed at least one predicate act of mail fraud, wire fraud, or extortion, which, when combined, constitutes a pattern of racketeering undertaken by the Enterprise to accomplish the goals of the Enterprise. Examples of predicate acts by each member of the Enterprise is set forth on the charts attached hereto as Composite Exhibit “B”14 and Exhibit “F.” (these charts are exemplary, and by no means exhaustive). In addition to the mail and/or wire fraud predicate acts committed by the RICO Enterprises’ members, O’Hare and Martin O’Boyle have blatantly threatened to cause the Town to spend increased legal fees or settle. 128. For example, at the July 11, 2014 Town Commission Meeting, O’Boyle said to the commissions; “why would you spend $1,700 when on your very best day, best day you win $450? …You want to lower the legal fees, you want to get rid of the lawyer fees? What you spent you could have settled with this guy [O’Hare]…You would have spent half the money and everyone would have been happy.” 129. At this same meeting, Martin O’Boyle, when addressing the Town’s budget , suggested that “you won’t have to worry about millage rate” if the Town would “sit down and try to solve” the issues with O’Hare—described by O’Boyle as “the guy that wants to do nothing but file law suits….” 130. However, Mr. O’Hare’s most obvious act of extortion occurred at a September 12, 2014 Commission Tentative Budget Hearing, when, while referencing the outstanding public records requests, he stated: “There’s a lot on the board and a lot more comin’. Be so much easier just to get this settled instead of spending more money each time the lawyers write a letter than it 14 Unless otherwise indicated, each of the Public Records request contained in Composite Exhibit “B” was made via email or facsimile and constitutes a use of the wires. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 44 of 49 RAS00000590 RICHMAN GREER, P.A. Miami  West Palm Beach 45 would take to settle some of these things.” A month later, Mr. O’Hare reiterated these threats at the October 10, 2014 Town Commission meeting, stating that “So many of these cases could be resolved by just admitting guilt [and] paying the attorneys’ fees….I meant a typical public records case settled for …..what was Joel Chandlers? Was it $1,500 to make him go away? And yet you spend $20,000 saying no, we’re not guilty and we’re not gonna cooperate. That’s just not a good use of public money.” 131. In addition to the verbal threats, Martin O’Boyle and O’Hare have also attempted mutiny-styled rallies of the citizens to try and pressure the Town into settling the scores of public records requests. In January of 2015, Martin O’Boyle and O’Hare published the “Gulf Stream Patriot,” a professionally prepaid bulletin in large part devoted to seeking support to force settlement of all of the public records lawsuits. In this bulletin, O’Boyle and O’Hare suggest to the residents of the Town that: “Because of the stout costs, [of the public records litigation] the residents are the ones being punished! Let’s all hope a resolution is in sight; and the costs disappear.” 132. On the back page, the “Gulf Stream Patriot” states that the “hottest topic” in the Town right now is the public records litigation. Accordingly, the bulletin then asks the readers to answer the following question in an online survey: “Are you in favor of the Town reaching a peaceful resolution with Mr. O’Boyle and Mr. O’Hare, which would end all the expenses and litigation in a prompt fashion?” 133. Each of these statements made by either O’Boyle or O’Hare is an overt threat that additional frivolous public records requests and accompanying litigation will follow if the Town Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 45 of 49 RAS00000591 RICHMAN GREER, P.A. Miami  West Palm Beach 46 does not agree to settle the current cases. Accordingly, each of these statements is an act of extortion, carried out to further the goal of the scheme to defraud and extort. 134. Each of these actions is a regular way of doing business for the enterprise’s members and threatens repetition in the future. b. Reliance. 135. The frivolous and often inconspicuous public records requests, as well as the false and disguised identity of the requester, along with the fraudulent settlement demands that were sent by the mails and the wires were justifiably relied upon by Plaintiffs and Class Members when they paid the fraudulent and inflated settlement demands or when they retained additional staff and spent additional resources in responding to the same. c. Proximate Cause and Damages. 136. The wrongful conduct of the enterprise set forth above, including the acts of mail fraud, wire fraud, and extortion have directly harmed the Plaintiffs and the Class Members. The Plaintiffs and the Class members were and are being extorted to pay inflated and fraudulent settlement demands based on the frivolous and often inconspicuous public records requests made by the enterprise, amounts they would not otherwise have paid. 137. In addition, when the volume of the frivolous public records request began to increase exponentially as the scheme to defraud and extort progressed, the Plaintiffs and Class Members were forced to incur additional internal costs associated with having to try and respond to the same. See the spreadsheet attached hereto as Composite Exhibit “E,” setting forth the amount of additional internal costs the Town was forced to absorb as a result of the Enterprises’ pattern of racketeering. Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 46 of 49 RAS00000592 RICHMAN GREER, P.A. Miami  West Palm Beach 47 138. Finally, the acts of extortion were directly intended to cause the Plaintiffs to spend money defending frivolous actions having no nexus or relation to the original settlement demands as to which they were being coerced to comply with and pay. The Plaintiffs had a pre- existing right to be free from the threats of the previously unrelated public records requests and frivolous litigation, and the resolution of the threatened public records requests and litigation would not impact the resolution of the case in which the threats were made but for the extortionate nature of the threats. The threatened public records requests and frivolous litigation were simply used as leverage to influence and gain compliance with fraudulent settlement demands made in unrelated cases—a tool to extort additional money from the Plaintiffs. See the spreadsheet attached hereto as Exhibit “F” outlining the amount spent in defending against the frivolous public records requests and accompanying litigation brought to achieve a simple yet calculated goal of causing the Town to hemorrhage money and consider settling. 139. There is no person who has more directly sustained these injuries than the Plaintiffs and Class Members, and the injuries are a direct and intended result of the enterprise’s scheme to defraud the Plaintiffs, as well as the mail and wire fraud acts undertaken as part of the scheme to defraud the Plaintiffs and Class Members. 140. Pursuant to 18 U.S.C. § 1964(c), Counter-Plaintiff requests an award of attorneys’ fees and costs for having to bring the instant suit. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of all other similarly situated, pray for relief and judgment as follows: Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 47 of 49 RAS00000593 RICHMAN GREER, P.A. Miami  West Palm Beach 48 a. Certifying the proposed Class and approving Plaintiffs Town of Gulf Stream and Wantman Group, Inc. as class representatives; b. Appointing Richman Greer, P.A as class counsel; c. Awarding Plaintiffs and the Class treble damages in an amount to be proven at trial, along with costs, interest, an attorneys’ fees; and d. Entering whatever orders the Court deems necessary to divesting the Defendants from their interest in the enterprise and imposing reasonable restrictions on the future activities or investments of the Defendants to prohibit them from engaging in a similar type endeavor; e. Awarding any further relief the Court deems just and proper. JURY DEMAND Plaintiffs demand a trial by jury on all issues so triable. Respectfully submitted this 12th day of February, 2015. RICHMAN GREER, P.A. Counsel for Plaintiffs One Clearlake Centre, Suite 1504 250 Australian Avenue, South West Palm Beach, Florida 33401-5016 Telephone: (561) 803-3500 Facsimile: (561) 820-1608 By: /s/ Gerald F. Richman __________ GERALD F. RICHMAN Florida Bar No.: 066457 grichman@richmangreer.com dcostonis@richmangreer.com ERIC M. SODHI Florida Bar No.: 0583871 esodhi@richmangreer.com mramirez@richmangreer.com Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 48 of 49 RAS00000594 RICHMAN GREER, P.A. Miami  West Palm Beach 49 LEORA B. FREIRE Florida Bar No.: 0013488 lfreire@richmangreer.com Case 9:15-cv-80182-KAM Document 1 Entered on FLSD Docket 02/12/2015 Page 49 of 49 RAS00000595 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 15-80182-CIV-MARRA TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, vs. MARTIN E. O’BOYLE, an individual, CHRISTOPHER O’HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O’BOYLE, an individual, DENISE DEMARTINI, an individual, GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O’BOYLE LAW FIRM, P.C., INC., Defendants. _______________________________________________________/ JUDGMENT THIS CAUSE is before the Court upon the Court’s Order entered at DE 47 on June 30, 2015, granting the motions to dismiss of all Defendants. In accordance with this Ordrer, it is hereby ORDERED AND ADJUDGED that Judgment is hereby entered in favor of Defendants MARTIN E. O’BOYLE, an individual, CHRISTOPHER O’HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O’BOYLE, an individual, DENISE DEMARTINI, an individual, Case 9:15-cv-80182-KAM Document 48 Entered on FLSD Docket 07/01/2015 Page 1 of 2 RAS00000596 GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O’BOYLE LAW FIRM, P.C., INC. Plaintiffs, TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, shall take nothing from this case. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 30 day of June, 2015. th ___________________________ KENNETH A. MARRA United States District Judge Case 9:15-cv-80182-KAM Document 48 Entered on FLSD Docket 07/01/2015 Page 2 of 2 RAS00000597 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 15-80182-CIV-MARRA TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, vs. MARTIN E. O’BOYLE, an individual, CHRISTOPHER O’HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O’BOYLE, an individual, DENISE DEMARTINI, an individual, GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O’BOYLE LAW FIRM, P.C., INC., Defendants. _______________________________________________________/ OPINION AND ORDER This cause is before the Court upon Defendants Martin E. O’Boyle, Airline Highway, LLC, Commerce GP, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Asset Enhancement, Inc., Commerce Realty Group, Inc., and Commerce Group, Inc.’s Motion to Dismiss Class Action Complaint [DE 10]; Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer’s 1 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 1 of 9 RAS00000598 Motion to Dismiss Plaintiff’s Class Action Complaint [DE 9]; Defendants Denise DeMartini, Citizens Awareness Foundation, Inc., Our Public Records, LLC, Stop Dirty Government, LLC, and Public Awareness Institute’s Notice of Joinder in Motions to Dismiss Class Action Complaint [DE 12]; Defendants William Ring, Jonathan O’Boyle, and The O’Boyle Law Firm, P.C., Inc.’s Notice of Joinder and Motion to Dismiss Class Action Complaint [DE 13]; Defendant Christopher O’Hare’s Notice of Joinder to Motions to Dismiss and Supplemental Motion to Dismiss Class Action Complaint [DE 17]. All motions are ripe for the Court’s consideration. The Court has reviewed all papers filed in connection with these motions; the entire file; and is otherwise duly advised in the premises. A. Legal Standard With respect to a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court observes first that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court has held that “[w]hile a complaint attacked by a 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above a speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations and citations omitted). “A claim has facial plausibility when 2 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 2 of 9 RAS00000599 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. B. Background Facts When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The Complaint alleges violations by Defendants of the Racketeer Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964(a) and (c) [DE 1 at 31]. The basis for Plaintiffs’ claim is the alleged filing of large numbers of frivolous public records requests, which are often intentionally inconspicuous, followed by the commencement of lawsuits when the requests are not addressed. Plaintiffs allege that Defendants then use the mails and wires to extort their victims by demanding settlements, including attorneys’ fees and costs as provided by the public records statute, or face protracted litigation and a flurry of additional frivolous public records requests and lawsuits. [DE 1 at 2]. Specifically, Plaintiffs assert that: [T]his bogus public records request was an essential first-step of the RICO Enterprises’ scheme to defraud and extort money from the class members----it was nothing more than bait, a records request for documents that the RICO Enterprise had no intention of reviewing, and instead, intended to be overlooked or missed by the receiving class member so as to trigger the next step in the RICO Enterprises’ scheme. After the bogus records request was sent and hopefully overlooked, the RICO Enterprise would then use the mail and the wires to: (i) demand a settlement of the records request in excess of the actual attorneys’ fees 3 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 3 of 9 RAS00000600 and costs incurred by the Defendants; or (ii) file a frivolous lawsuit against the recipient of the bogus records request followed by the demand for settlement. * ** It is this threat of prevailing party attorneys’ fees that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme. [DE 1 at ¶¶ 37, 38, 52]. C. Discussion Accepting the allegations in the Complaint as true for purposes of the motions pending before the Court, Plaintiffs certainly find themselves in a very difficult situation. In particular, the Town of Gulf Stream, a small town of 974 residents and 17 full time employees, has been inundated with public records requests by Defendants. The issue before the Court, however, is limited to whether Defendants’ acts, as alleged by Plaintiffs, violate RICO. For the reasons set forth below, the Court finds that they do not. 1. Threatening to Sue or Actually Suing Someone Does Not Constitute a Predicate Act Under RICO. In order for a Plaintiff to survive a motion to dismiss a civil RICO case, a plaintiff must show a “pattern of racketeering activity” by alleging that the defendants committed two qualifying predicate acts. Republic of Panama v. BCCI Holdings, 119 F.3d 935, 948-49 (11 Cir. 1997). This requires that a plaintiff allege facts that th support each statutory element of a violation of one of the state or federal laws described in 18 U.S. C. § 1961(1). Raney v. Allstate Ins. Co., 370 F.3d 1086,1087 (11 Cir. 2004). th The Court finds the Eleventh Circuit decision in Raney to be dispositive of the issue 4 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 4 of 9 RAS00000601 before the Court. In Raney, the Court held that the filing of a lawsuit, even if done maliciously, cannot form a predicate act under RICO. In Raney, the RICO claim depended upon the Plaintiff’s ability to show a violation of the Hobbs Act, which bars interference in interstate commerce by means of extortion. See 18 U.S.C. § 1951. The Eleventh Circuit noted that all of Raney’s allegations of mail fraud and extortion related to “the alleged conspiracy to extort money through the filing of malicious lawsuits.” 370 F.3d at 1088. The Raney Court noted that this argument was foreclosed by the Eleventh Circuit’s decision in United States v. Pendergraft, 297 F.3d 1198 (11 Cir. 2002), where the Court “held th that neither the threat to litigate nor the fabrication of evidence behind the lawsuit made the action ‘wrongful’ within the meaning of 18 U.S.C. § 1951 and therefore could not be a predicate act under RICO.” Id. The Raney Court made it clear that Pendergraft did not only apply to threats of litigation, but applied with equal force to actual litigation. We noted [in Pendergraft] that courts possess adequate procedures to distinguish valid claims from invalid claims and held that Congress did not intend to punish citizens merely for accessing the legal system. . . We found ourselves “troubled by any use of this federal criminal statute to punish civil litigants.” . . . We noted that “allowing litigants to be charged with extortion would open yet another collateral way for litigants to attack one another.” . . .We also expressed concern about transforming every state-law malicious prosecution action into a federal crime. . . .All of these concerns apply to actual litigation with added force. 370 F.3d at 1088 (citations omitted). The instant case is indistinguishable from Raney. Plaintiffs’ allegations that Defendants committed the “predicate crimes” of mail fraud under 18 U.S.C. §1341, wire fraud under 18 5 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 5 of 9 RAS00000602 U.S.C. § 1343, and extortion under 18 U.S.C. § 1951, are ultimately dependent upon the threat of filing lawsuits or the actual filing of lawsuits in order to extort prevailing party costs and attorneys’ fees. While the filing of allegedly fraudulent public records requests “was an essential first-step of the RICO Enterprises’ scheme,” “[i]t is the threat of prevailing party attorney’s fees that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme.” [DE 1 at ¶¶37, 52]. Plaintiffs’ attempts to distinguish Raney are unavailing. They argue that courts have determined that when a RICO defendant sues or threatens to sue as part of an overriding scheme or plan to extort money that it otherwise has no right to, and the suit threatened or brought has no relation to the dispute in which the threat was made (i.e. resolution of the threatened litigation could not resolve the dispute in which the threat is made), such a threat does constitute the predicate act of extortion for purposes of RICO. DE 34 at 8. The cases cited by Plaintiffs, however, are all factually inapposite and from other districts. This Court is bound to follow Raney. In their analysis, Plaintiffs ignore that Raney specifically addressed malicious lawsuits, finding that they do not constitute predicate acts. 2. The Filing of Public Record Requests Does Not Constitute a Predicate Act under RICO. To the extent Plaintiffs may assert that they are relying on the filing of public record requests, in and of themselves, as predicate acts to support their claims, the Court rejects the legal viability of that claim. This assertion would be completely inconsistent with Plaintiffs’ allegation that the public records requests were merely “an essential first-step” in the scheme to defraud and extort money by threats of and the actual filing of lawsuits. [DE 1 at ¶¶ 37, 38, 52]. Nevertheless, Plaintiffs allege that Defendants: used the mail and the wires to send out what is usually an 6 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 6 of 9 RAS00000603 inconspicuous and frivolous public records request to the Class Members, often times under the guise of a false non-profit organization, and with a stated or implied purpose of advancing the public’s interest in government transparency. [DE 1 at ¶37]. Plaintiffs further allege that they were damaged due to “additional expenditures by the class members (i.e. hiring additional staff, paying overtime, etc.) to review and respond to the massive volume of bogus records requests”. Id. at ¶39. Section 1961requires that a RICO plaintiff establish that a defendant could be convicted for violating any of its predicate statutes. . . . 18 U.S.C. § 1961 (defining racketeering activity to include conduct that is “chargeable” or “indictable” and “offenses” that are “punishable” under various criminal statutes). Therefore, in order to survive a motion to dismiss, a plaintiff must allege facts sufficient to support each of the statutory elements for at least two of the pleaded predicate acts. Republic of Panama v. BCCI Holdings, 119 F.3d 935, 948-49 (11 Cir. 1997). th Defendants could not be convicted for filing the public record requests. Under Chapter 119 of the Florida Statutes, Defendants had the absolute right under current Florida law to file public record requests and then file lawsuits if the requests went unanswered. The motive for making a public record request is irrelevant under Florida law. See e.g., Microdecisions, Inc. v. Skinner, 889 So.2d 871, 875 (Fla. 2d DCA 2004). Furthermore, someone requesting access to or copies of public records may not be required to disclose background information such as a name or address unless the custodian is required by law to obtain the information. Chandler v. City of Greenacres, 140 So.3d 1080, 1084-85 (Fla. 4 DCA 2014). The request can come from th someone anonymously. Id. at 1085. The validity of the lawsuits Defendants brought is for the Florida state courts to 7 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 7 of 9 RAS00000604 determine. Essentially, Plaintiffs are complaining that Defendants are abusing the rights set forth in the Florida statutes. To the extent Defendants are abusing the rights afforded them by the Florida public records laws, those abuses must be addressed in the individual lawsuits filed, or through a change in the laws by the Florida Legislature. Defendants’ legal use of these statutes does not constitute a predicate act under RICO. D. Conclusion Plaintiffs’ failure to plead a predicate act requires the dismissal of their Complaint. Because this is a fundamental prerequisite to a viable RICO claim, the Court does not need to address the other arguments raised by Defendants in support of their motions to dismiss. Accepting all of the facts set forth in the Complaint as true, the Court finds that it would be futile for Plaintiffs to try to amend their Complaint. The Complaint fails not due to a lack of finesse in pleading; rather, it fails because on the most fundamental level, the entire factual underpinning of Plaintiffs’ case cannot, under any circumstances, constitute a RICO violation. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Defendants Martin E. O’Boyle, Airline Highway, LLC, Commerce GP, Inc., CG Acquisition Co., Inc., CRO Aviation, Inc., Asset Enhancement, Inc., Commerce Realty Group, Inc., and Commerce Group, Inc.’s Motion to Dismiss Class Action Complaint [DE 10] is GRANTED; 2. Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer’s Motion to Dismiss Plaintiff’s Class Action Complaint [DE 9] is GRANTED; 3. Defendants Denise DeMartini, Citizens Awareness Foundation, Inc., Our Public Records, LLC, Stop Dirty Government, LLC, and Public Awareness Institute’s 8 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 8 of 9 RAS00000605 Notice of Joinder in Motions to Dismiss Class Action Complaint [DE 12] is GRANTED; 4. Defendants William Ring, Jonathan O’Boyle, and The O’Boyle Law Firm, P.C., Inc.’s Notice of Joinder and Motion to Dismiss Class Action Complaint [DE 13] is GRANTED; 5. Defendant Christopher O’Hare’s Notice of Joinder to Motions to Dismiss and Supplemental Motion to Dismiss Class Action Complaint [DE 17] is GRANTED. 6. This case is DISMISSED. Each party shall bear its own fees and costs. The Clerk of this Court shall CLOSE this Case. All pending motions are DENIED AS MOOT with each party to bear its own fees and costs. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 30 day of June, 2015. th _________________________ KENNETH A. MARRA United States District Judge 9 Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 9 of 9 RAS00000606 Case: 15-13433 Date Filed: 06/21/2016 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 15-13433 Non-Argument Calendar D .C. Docket No. 9:15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of F lorida on its own behalf and on behalf of those municipalities simi larly situated, WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, MARTIN E. O'BOYLE, an indiviqual, CHRISTOPHER O'HARE, an individual , WILLIAM RING, an individual , JONATHAN O'BOYLE, an individual , DENISE DEMARTINI, an individual, GIOV ANI MESA, an individual, et al., Plaintiffs -Appellants, versus RAS00000607 Case: 15-13433 Date Filed: 06/21/2016 Page : 2 of 13 Defendants -Appellees . Appeal from the United States District Court for the Southern District of Florida (June 21 , 2016) Before WILSON, ROSENBAUM and TILL PRYOR, Circuit Judges . PERCURJAM: The Town of Gulf Stream, Florida ("Gulf Stream" or the "town") and its contractor Wantman Group, Inc. ("Wantman") (collectively the "plaintiffs") appeal the dismissal of their class action complaint 1 under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c), 1964(c). The plaintiffs ' complaint was premised on, among other actions, the defendants' alleged efforts to inundate the town with public records requests in an attempt to cause a violation ofFlorida's Public Records Act, F la. Stat. § 119.07 (the "Act"), and then to threaten litigation and the pos s ibility of liability for attorneys' fees to 1 The pl a intiffs defined the proposed class to include the followin g : All state or local municipa lities, munici pal agencies, or private contractors in the State of Florida, who hav e been served with a public record s request b y any of th e Defendants and who either (a) paid a settlement amount in conjunction with, or to reso lve the publi c records r equest ; or (b) incurred attorn eys ' fees and costs to respond to or litigate again st public rec ords requests from any of the Defendants . Compl. 1[3 1, Doc. 1. Citations to "Doc." refer to docket entries in th e di strict court record in this case. 2 RAS00000608 Case: 15-13433 Date Filed: 06/21/2016 Page: 3 of 13 extort an unreasonable settlement. The district court recognized the "very difficult situation" the plaintiffs allegedly found themselves in, Doc. 47 at 4, but nevertheless held that the plaintiffs failed to allege at least two predicate acts in support of their RICO claim. After careful review, we agree that the plaintiffs' allegations, although troubling, fail to state a claim under RICO. Therefore, we affirm. I. Gulf Stream is a tiny town of under 1,000 residents and just 17 full time employees .2 The defendants-Martin E. O'Boyle, William F. Ring, Christopher O 'Hare, Jonathan R. O'Boyle, Denise DeMartini, and their associated companies-pummeled the town with nearly 2,000 public records requests, many of them frivolous, with no intention of actually reviewing the results. Examples of such requests included • "All email addresses created or received by the Town of Gulf Stream," Com pl. Ex. B, Doc. 4-2 at 2 (No. 1 ); • "All phone numbers in the town's records," id. (No.3); and • "Any and all records containing a social security number," id. at 10, No . 322. 2 We derive these fact s from the complaint 's well-pled allegations, which we accept as true for purposes of the motions to dismis s . See Chaparro v. Carnival Corp., 693 F .3d 1333 , 1335 (11th Cir. 20 12). 3 RAS00000609 Case: 15-13433 Date Filed: 06/21/2016 Page: 4 of 13 These and other bogus requests were "an essential first-step" in a "scheme to defraud and extort money from the class members." Compl. ~ 37, Doc. 1. The purpose of this onslaught of records requests was to induce a violation of the Act and then threaten a lawsuit, or actually file one, which could entitle the defendants to prevailing party attorneys' fees under Fla. Stat. § 119.12.3 "It is this threat of prevailing party attorneys' fees," the plaintiffs alleged, "that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO Enterprise to carry out that scheme." Compl. ~52, Doc. 1. The defendants then demanded unreasonable settlements and threatened to file more frivolous records requests if the town did not settle the claims . Since 2013, the defendants have filed 43 public records suits against the town. 4 3 Florida Statutes§ 119 .12 provides : If a civi l 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. Fla. Stat. § 119.12 . 4 In addition to the public records disputes liti gated in state court, Martin O'Boyle and the town have had other d isagreements, some of w hich have been litigated in federal court. See, e.g., O'Boyle v. Thrasher, Ward, & Town of Gulf Stream, No. 15-10997, _F. App'x _, 20 16 WL 158757 (11th Cir. Jan. 14, 2016) (affirming the district court's dismissal ofO'Boyle's claims against the town under 42 U .S.C. § 1983); O'Boyle v. Town of Gulf Stream , et al., No. 9:14-cv- 80317-DMM (S.D. Fla. Mar. 30, 20 15) (granting the defendants ' motion for summary judgment and dismissing a First Amendment challenge to the town's sign ordinance), appeal docketed, No. 15-13964 (11th Cir. Sept. 3, 2015). We recently affirmed the award ofattorneys' fees in the 4 RAS00000610 Case: 15-13433 Date Filed: 06/21/2016 Page: 5 of 13 In addition, defendant O'Hare employed aliases when making public records requests to avoid incurring a special service charge the town would have otherwise imposed. Florida authorizes the town to condition public records production on the payment of certain costs and expenses, but only "[i]fthe nature or volume of public records requested to be inspected or copied ... is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both." Fla. Stat. § 119 .07(4)(d). When the town began to assess special service charges against O'Hare for his voluminous requests, he started using fake names to hide his identity. The defendants also lodged a bogus public records request with Wantman, a government contractor also covered by the Act. See Fla. Stat. § 119.0701.5 When the defendants did not receive the document requested , they filed suit and promptly demanded nearly $4,000 to settle the claim. § 1983 action. O 'Boyle v. Thrasher, Ward & Town ofGulfStream , No. 15-10997, _F. App'x , 2016 WL 1426013 (lith Cir. Apr. 12 , 2016). 5 During the relevant time, Fla. Stat.§ 119.0701(2) (2003) provided that "each public agency contract for services must include a provision that require s the contractor to comply with public records laws." Florida recently amended this statute to specify precisely when a public records requester may bring suit against a contractor. See 2016 Fla. Law Serv. ch. 2016-20 (CS/HB 273) (codified at Fla. Stat.§ 119.0701(3)-(4) (2016)). 5 RAS00000611 Case: 15-13433 Date Filed: 06/21/2016 Page: 6 of 13 Based on these and similar allegations , the plaintiffs filed a class action complaint on their own behalf and on behalf of other similarly situated state or local municipalities, municipal agencies, or private contractors. They alleged that each defendant committed at least one predicate act of mail fraud, wire fraud, or extortion, constituting a pattern of racketeering activity in violation of RICO, 18 U.S .C. §§ 1962(c), 1964(c). The defendants moved to dismiss arguing, among other points, that neither filing frivolous public records requests nor threatening to file or actually filing a lawsuit is a predicate act under RICO. The district court agreed, granted the defendants' motions to dismiss, and dismissed the case with prejudice. This appeal followed . II . "We review de novo the district court's grant of a Rule 12(b)(6) motion to dismis s for failure to state a claim, accepting the complaint's allegations as true and construing them in the light most favorable to the plaintiff." Chaparro v . Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (internal quotation marks and citation omitted). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting B e ll At/. Corp. v. Twombly, 550 U.S . 544, 570 (2007)). A complaint is insufficient if it "tenders naked a ss ertions devoid of further factual enhancement." !d. (internal quotations marks and citation 6 RAS00000612 Case: 15-13433 Date Filed: 06/21/2016 Page: 7 of 13 omitted). To survive a motion to dismiss, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." !d. III. To establish a federal civil RICO violation under §§ 1962( c) and 1964( c), the plaintiffs must prove the conduct of an enterprise through a pattern of racketeering activity and an injury to business or property by reason of the RICO enterprise. See Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282-83 (11th Cir. 2006). The district court dismissed the plaintiffs' RICO claim on the ground that the plaintiffs failed to allege a pattern of racketeering activity. We therefore focus on this element of the claim. A RICO "pattern of racketeering activity" requires at least two "qualifying predicate acts," each of which constitutes "a violation of one of the state or federal laws described in 18 U.S.C. § 1961(1)." Raney v. Allstate Ins. Co ., 370 F.3d 1086, 1087 (11th Cir. 2004). The plaintiffs argue that they have adequately pled two types of predicate acts: (1) extortion under the Hobbs Act, 18 U .S.C. § 1951, and (2) mail and wire fraud under 18 U .S.C. §§ 1341, 1343 . See 18 U.S.C. § 1961(1) (listing violations of the Hobbs Act and the mail and wire fraud statutes). We consider each type of predicate act in turn. 7 RAS00000613 Case: 15-13433 Date Filed: 06/21/2016 Page: 8 of 13 A . The Hobbs Act prohibits extortion, defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U .S.C. § 1951(b)(2). The plaintiffs contend that the defendants' "systematic use of unjustified lawsuits as part of a more extensive extortion scheme to obtain money" supports a claim of extortion under the Hobbs Act. Appellants ' Br. at 18. Our precedent commands otherwise. We held in United States v. Pendergraft that a "threat to file litigation against [the government], even if made in bad faith and supported by false affidavits , [was] not 'wrongful ' within the meaning of the Hobbs Act." 297 F.3d 1198 , 1208 (11th Cir. 2002). The issue was whether a threat to add a bogus claim in a federal lawsuit against a county government in an effort to force a large settlement could support a Hobbs Act violation. "[U]nder our system," we explained, "parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights." Id. at 1206. Thus, "litigants may be sanctioned for only the most frivolous of actions." I d. And even then, such sanctions-through tort actions for malicious prosecution, for example-"are heavily disfavored." Id. We also expressed confidence in the "time-tested procedures " of the courts to resolve disputes in litigation by "separating validity from invalidity, honesty from 8 RAS00000614 Case: 15-13433 Date Filed: 06/21/2016 Page: 9 of 13 dishonesty." !d. Moreover, citizens have a constitutional right to petition the government for redress under the First Amendment. !d. at 1207. For these reasons, we rejected the contention that a threat to file litigation against the government can trigger Hobbs Act liability. !d. at 1206-1207. We clarified in Raney, a civil RICO case, that Pendergraft applies both to threats of litigation and actual litigation. Raney, 370 F.3d at 1088 . In Raney, the plaintiff alleged that the defendants filed frivolous lawsuits in an effort to extort money from him. !d. at 1087. We held unequivocally that "the filing of a lawsuit may not state a claim for extortion under the federal RICO statutes." !d. The material difference between this case and Pendergraft or Raney is the number of times the defendants allegedly threatened to file a lawsuit or actually sued in an effort to extort money. Indeed, assuming the allegations in the complaint are true, as we must, the defendants have engaged in a pattern of frivolous litigation activity while abusing, on a grand scale, their statutory right to request public documents from the government. Nonetheless, the same concerns driving our decisions in Pendergraft and Raney are equally present here. Our judicial system, and the Act in particular, encourages citizens to use the courts to resolve public records disputes. Moreover, citizens have a constitutional right to petition the government for redress. We believe that regardless of the scope and scale ofthe litigation, the courts are amply equipped to deal with frivolous 9 RAS00000615 Case: 15-13433 Date Filed: 06/21/2016 Page: 10 of 13 litigation. See, e.g., The Florida Bar v. Committe, 916 So. 2d 741, 749 (Fla. 2005) (sanctioning an attorney for, among other things, "repeatedly attempt[ing] to relitigate the same nonmeritorious issue in an attempt to frustrate the legal process and to harass [an] attorney debt-collector"). Thus, Pendergraft and Raney control, and the alleged misconduct cannot as a matter of law constitute the predicate act of extortion for purposes ofthe plaintiffs' civil RJCO claim. The plaintiffs also alleged that the defendants abused their right to request public records; they argue on appeal that this abuse amounted to a RlCO predicate act. As alleged in the complaint, the defendants intentionally set the town up to violate the Act. Whether it was a setup or not , the town may be on the hook for attorneys' fees if it failed to respond timely to the requests. See Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee , 189 So. 3d 120, 124-25 (Fla. 20 16) (holding that once the court determines that the defendant "unlawfully refused" to permit a public record to be inspected or copied, the court must assess reasonable attorneys' fees, whether or not the defendant acted in good faith (citing Fla. Stat.§ 119.12)); Promenade D'Iberville, LLC v. Sundy, 145 So. 3d 980,983 (Fla. 1st DCA 2014) (holding that a delay in producing non-exempt public records for no legally sufficient reason constitutes a violation of the Public Records Act). We nevertheless agree with the district court that the alleged abuse of the Act "must be addressed in the individual lawsuits filed, or through a change in the laws 10 RAS00000616 Case : 15-13433 Date Filed: 06/21/2016 Page : 11 of 13 by the Florida Legislature." Doc. 47 at 8 . RlCO and the Hobbs Act in particular do not provide the remedy the plaintiffs seek. B . The plaintiffs next contend that mail and wire fraud constitute the predicate acts necessary to support their RlCO claim. Specifically, they argue that O'Hare's use of aliases to avoid incurring a special service charge when lodging public records requests amounted to fraud. We are unpersauded. "The elements of mail and wire fraud are: (1) intentional participation in a scheme to defraud, and, (2) the use of the interstate mails or wires in furtherance of that scheme." United States v. Maxwell, 579 F .3d 1282, 1299 (11th Cir. 2009). "Nondisclosure of material information can constitute a violation ofthe mail and wire fraud statutes where a defendant has a duty to disclose, either by statute or otherwise." McCulloch v. PNC Bank Inc., 298 F .3d 1217 , 1225 (11th Cir. 2002); accord Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043 , 1065 (11th Cir. 2007) (holding that the failure to allege a duty to disclose is fatal to a RlCO claim premised on mail fraud arising out of alleged nondisclosure of material information). Although the plaintiffs argue that O'Hare 's concealment of his true identity to avoid incurring a special service charge constituted fraud , they alleged no facts to plausibly suggest that O'Hare had any duty to disclose that information. To the 11 RAS00000617 Case: 15-13433 Date Filed: 06/21/2016 Page: 12 of 13 contrary, Florida law recognizes a person's right to request public records anonymously. See Chandler v. City of Greenacres, 140 So. 3d 1080, 1084 -85 (Fla. 4th DCA 2014) (holding that a city cannot require a public records requester to provide identifying information, which "could have a chilling effect on access to public records and is not required by the Public Records Act"). Accordingly, the plaintiffs failed to allege the predicate acts of mail and wire fraud to support their RlCO claim. Because we conclude that the plaintiffs' mail and wire fraud allegations fail on this basis, 6 we do not consider the defendants' alternative reasons for rejecting it. IV. The allegations in the plaintiffs' complaint paint a frustrating picture. Accepting those allegations as true, the defendants have engaged in a concerted effort to capitalize on the relatively unfettered access to public records Florida has granted its citizens by bombarding small towns and municipalities with public records requests to which they cannot respond adequately. As distasteful as this 6 See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) ("We may affirm the district court's judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below."). 12 RAS00000618 Case: 15-13433 Date Filed: 06/21/2016 Page: 13 of 13 conduct may be, the allegations do not support a RICO claim under our precedent. We therefore affirm the dismissal of the plaintiffs' complaint.7 AFFIRMED. 7 Some of the defendants have also filed a motion for sanctions under Federal Rule of Appellate Procedure 38. We DENY that motion. 13 RAS00000619   Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO: 9:15-cv-80182-KAM TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own CLASS ACTION behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiff, v. MARTIN E. O'BOYLE, an individual, CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, an individual, GIOVANI MESA, an individual, NICKLAUS TAYLOR, an individual, RYAN WITMER, an individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC., CG ACQUISITION CO., INC., CRO AVIATION, TNC., ASSET ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC., PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC., Defendants. / NOTICE OF WITHDRAWAL OF DEFENDANT CHRISTOPHER O'HARE'S MOTION FOR SANCTIONS On July 21, 2016, Defendant Christopher O'Hare, through his undersigned attorney, filed his Motion for Sanctions. Defendant Christopher O'Hare now files this Notice to inform the Court that he is withdrawing his previously filed Motion for Sanctions. Respectfully submitted December 2, 2016 By: /s/ Louis Roeder Louis Roeder, Esq. Fla. Bar No. 0004316 7414 Sparkling Lake Road Orlando, FL 32819 Phone: 407-758-4194 Email: lou@louroeder.com Counsel for Defendant, Christopher F. O'Hare Case 9:15-cv-80182-KAM Document 63 Entered on FLSD Docket 12/02/2016 Page 1 of 3 RAS00000620   Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 2, 2016 a true and correct copy of the foregoing, was electronically filed with the Clerk using the CM/ECF filing system and served upon on all counsel of record and/or pro se party(ies) listed below, either via transmission of Notices of Electronic Filing generated by the CM/ECF filing system or, if indicated, in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. By: /s/ Louis Roeder Louis Roeder, Esq. Fla. Bar No. 0004316 7414 Sparkling Lake Road Orlando, FL 32819 Phone: 407-758-4194 Email: lou@louroeder.com Counsel for Defendant, Christopher F. O'Hare Case 9:15-cv-80182-KAM Document 63 Entered on FLSD Docket 12/02/2016 Page 2 of 3 RAS00000621   Page 3 of 3 SERVICE LIST   Steven D. Weber sweber@bergersingerman.com    Etan Mark emark@bergersingerman.com    Mitchell W. Berger mberger@bergersingerman.com   BERGER SINGERMAN Las Olas Centre II 350 E. Las Olas Blvd. Suite 1000 Fort Lauderdale, FL 33301 Tel: 954.525.9900 Attorneys for Martin E. O’Boyle, Airline Highway LLC, Commerce Gp Inc., GC Acquisition Co. Inc., CRO Aviation Inc., Asset Enhancement Inc., Commerce Realty Group Inc., and Commerce Group Inc., Defendants Daniel DeSouza ddesouza@desouzalaw.com DESOUZA LAW, P.A. 101 N. Third Avenue Suite 1500 Ft. Lauderdale, FL 33301 Tel: 954.551.5320 Attorneys for Denise DeMartini, Citizens Awareness Foundation Inc., Our Public Records LLC, Stop Dirty Government LLC, and Public Awareness Institute, Inc. Stuart R. Michelson smichelson@smichelsonlaw.com LAW OFFICES OF STUART MICHELSON 800q SE 3rd Avenue, 4th Floor Fort Lauderdale, FL 33316 Tel: 954.463.6100 Attorneys for Giovanni Mesa, Nicklaus Taylor and Ryan Witme, Defendants   Joanne M. O’Connor, Esquire Florida Bar No.: 0498807 joconnor@jonesfoster.com JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, FL 33401 Telephone: (561) 659-3000 Attorneys for Plaintiff, Town of Gulf Stream   Gerald F. Richman, Esquire grichman@richmangreer.com   Leora B. Freire, Esquire lfreire@richmangreer.com Eric M. Sodhi, Esquire esodhi@richmangreer.com RICHMAN GREER, P.A. 250 Australian Ave., South, Suite 1504 West Palm Beach, FL 33401 Telephone: (561) 803-3500 Attorneys for Plaintiff, Town of Gulf Stream Adam T. Rabin arabin@mccaberabin.com   Robert C. Glass rglass@mccaberabin.com   MCCABE RABIN, P.A. 1600 Forum Place, Suite 505 Palm Beach, FL 33401 Tel: 561.659.7878 Attorneys for William Ring, Jonathan O’Boyle And The O’Boyle Law Firm, P.C., Inc., Defendants     Case 9:15-cv-80182-KAM Document 63 Entered on FLSD Docket 12/02/2016 Page 3 of 3 RAS00000622 Renee Basel From: Cynthia Miller <IMCEAEX-_O=JABIP OU=FIRST+20ADM INISTRATIVE+ 20G ROUP_CN=RECIPIENTS_CN=CM I LLER@namprd20.prod.outlook.com> Sent: Tuesday, July 12, 2016 3:02 PM To: OConnor, Joanne M. (JOConnor@jonesfoster.com) Cc: Robert Sweetapple;'mmacfarlane@jonesfoster.com'; Cynthia Miller Subject: Responses to PRRs Attachments: 7.12.16 - JOC.Iet from CM re request to PRR from COH.3 SBV and GR emails re RICO.docx.pdf; 7.12.16 - JOC.Iet from CM re request to PRR from COH.3 SBV and JF emails re RICO.docx.pdf Joanne, Please see attached responses to two PRRS from Christopher O'Hare. Thank you. CYNTHIA J. MILLER Certified Paralegal/Florida Certified Paralegal/Florida Registered Paralegal Sweetapple, Broeker & Varkas, P.L. 20 SE 3rd Street Boca Raton, FL 33432 (561) 392-1230(t) X. 305 (561) 394-6102(f) cmiller@sweetaDD[elaw.com www.sweetapplebroeker.com STATEMENT OF CONFIDENTIALITY The information in this e-mail is confidential and may be legally privileged. If you are not the named addressee, or if this message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate, maintain, save or otherwise use this email. Please contact the sender at the above number immediately. Delivery of this message to any person other than the intended recipient(s) is not intended in any way to waive privilege or confidentiality. LAW OFFICES OF SWEETAPPLE9 BROEKER & VARKASS P.L. DOUGLAS C. BROEKER, P.A. 44 Wert FlailierStreet, Ste.1500 Miami, Florida 33130-6817 Telephone; (305) 374.5623 Facsimile: (305) 358-1023 ROBERT A. SWEETAPPLE DOUGLAS C. BROEKER KADISHA D. PHELPS ALEXANDER D. VARKAs, III ASHLEIGH M GREENE BERKLEY S. VITALE ' 90MOCeat81N BUSnStf llnMTt011 A1Tea12Y •• aOAaa [CR'nf¢a CINLTRtAL AIIeaNEY July 12, 2016 VIA EMAIL Joanne O'Connor, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, Florida 33402-3475 SWEETAPPLE & VARKAS, P.A. 20 S.E. 3"' Street Bou Raton, Florida 33432A914 Telephone: (561) 392-1230 Facsimile: (561) 394.6102 Plenae Reply To: Bou Raton rsw=WPle*weetappielaw.wrn ajvarkas@sweempplelaw.com bvitale@sweetapplelaw.com cbailey@sweetapPlclaw.Wnn dsmith@sw tapplelaw.com Re: Public Records Request to SBV re: RICO emails w. Richman Greer Dear Joanne: Pursuant to Mr. O'Hare's public records request dated Thursday, June 30, 2016 at 7:37 a.m., I have located what I believe are the three earliest records of communication between our firm and Richman Greer which mention RICO. I have enclosed the following emails: Date Time To From Subject 10/26/2014 9:51 a.m. Scott Morgan, Robert Sweetapple Gulf Stream legal action Gerald Richman, Joanne O'Connor, Robert Sweetapple 11/20/2014 2:19 p.m. Joanne O'Connor, Dottie Costonis Re: Gulf Stream, Town Robert Sweetapple, of — O'Boyle, et al. Eric M. Sodhi, Document: Class Action Gerald Richman, Complaint Leora B. Freire 11/26/2014 5:50 p.m. Cynthia Bailey, Gerald F. Richman Re: O'Boyle v. Gulf Robert Sweetapple, Stream Joanne O'Connor, Leom B. Freire, Eric M. Sohdi Joanne O'Connor, Esquire July 12, 2016 Page 12 Please note that pursuant to the request, I have made it a point not to exceed 15 minutes of search time and was as careful as possible during that time. However, a search of all office emails and hard files would take at least 2 hours. My hourly rate is $125.00. CM Encl. Very truly yours, CYNTHIA J. MILLER, CP, FCP, FRP Lnw Orncesw SwrzrAPPLE, BROEKER & VnRKAR, P.L. Re: Gulf Stream legal action - Robert Sweetapple https://ms 11-eden.e2engine.net/owa/#viewmodel=ReadMessageltem&... Re: Gulf Stream legal action Robert Sweetapple <rsweetapple@sweetapplelaw.com> Sun 10/26/2014 9:57 AM To:Scott Morgan <scottmorgan75@gmail.com>; ccgrichman@richmangreencom<grichman@richmangreeccom>;joconnor@jonesfosteccom <joconnor@jonesfosteccom>; Robert Sweetapple <rsweetapple@sweetapplelaw.com>; All Tuesday AM or Wed after 3:30 work for me. Regards, Bob Sweetapple > On Oct 25, 2014, at 12:07 PM, "Scott Morgan" <scottmorgan75@gmail.com> wrote: > If the three of you are available on Tuesday or Wednesday, I think we should meet to discuss everyone's thoughts on the type of actions to be filed against O'Boyle and O'Hare. There are arguments to be made for federal vs. state court RICO as well as for a separate conspiracy to abuse process action. I would like to have a consensus on moving forward. > Let me know if Tues or Wed works for you. > Scott I of 1 7/5/2016 10:26 AM Re,: GULF STREAM, TOWN OF - O'BOYLE, Et Al. Document: CL...... https://ms I 1-eden.e2engine.net/owa/#viewmde[=ReadMessageltem&... Re: GULF STREAM, TOWN OF - O'BOYLE, Et Al. Document: CLASS ACTION COMPLAINT Dottie Costonis <DCostonis@richmangreercom> Thu 11/20/2014 2:19 PM Tojoconnor@jonesfostercom <jcccnnor@jonesfostercom>; Robert Sweetapple<rsweetapple@sweetapplelaw.com>; cc:Eric M. Sodhi <ESodhi@richmangreer.com>; Gerald F. Richman <GRichman@richmangreeccom>; Leora B. Freire <LF reire@richmangreercom>; 1 attachment CLASS ACTION COMPLAINTdoa; Attached is a first draft of the Complaintfor your comments/suggestions. Dottie Costonis / Legal Assistant to Gerald F. Richman Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax 561.820.1608 Direct 561.803.3506 Email: DCostonis@richmangreeccom iLevRichmanGreercom U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.. I oft 7/5/201610:29 AM Re,: GULF STREAM, TOWN OF - O'BOYLE, Et Al. Document CL..... https://ms 1 t-eden.e2engine.net/owa/#viewmodel=ReadMessageltem&... 2 oft 7/5/2016 10:29 AM IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.: TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own CLASS ACTION behalf and on behalf of those municipalities similarly situated, and a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, VS. MARTIN E. O'BOYLE, and individual, CHRISTOPHER O'HARE, and individual, WILLIAM RING, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, and individual, PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, and COMMERCE GROUP, INC. and THE O'BOYLE LAW FIRM, P.C., INC., Defendants. CLASS ACTION COMPLAINT I. Introduction. 1. The TOWN OF GULF STREAM ("Gulf Stream") brings this lawsuit as a class action by and on behalf of municipalities, municipal agencies, and other local and state government entities located in the state of Florida that have been victimized by a fraudulent scheme being carried out by a RICO enterprise created and carried out by the Defendants, and 1 through their RICO enterprise, the Defendants have associated with the sole purpose of unlawfully and illegally extracting settlement payments from the class members by first using the mails and the wires to deliver and advance a frivolous public records request that is intentionally inconspicuous. Then, the Defendants, through their RICO enterprise, immediately use the mails and the wires to demand that these municipal entities and agencies immediately settle with it and pay its allegedly incurred attorneys' fees and costs as provided for in the public records statute or face protracted litigation and a flurry of additional frivolous public records request. The amount demanded by the Defendants to reimburse it for its attorneys' fees and costs is fraudulent—far exceeding the actual costs and fees incurred in the frivolous public records request, resulting in a profit windfall for the Defendants. 2. The Defendants are prolific in their efforts—from March 5, 2013 through July 17, 2013, they filed over 400 public records request with Gulf Stream alone. From August of 2013 through April of 2014, the RICO enterprise filed at least another 600 public records request. For purposes of context—Gulf Stream is a small community, having a population of 928 residents and only 16 full time employees with a land mass of less than one square mile. 3. The Defendants also target private entities that have contracted with municipalities and are therefore subject to the public records laws of Florida. brings this lawsuit as a class action on behalf of itself and other private entities that have been victimized by Defendants' scheme to defraud. 4. [insert paragraph on engineering firm] II. Jurisdictional Allegations. 5. As this is an action brought under 18 U.S.C. §§ 1961, 1962 and 1964, this Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331. 2 Additionally, this Court has original jurisdiction over the subject matter of this action pursuant to 18 U.S.C. §§ 1964 (a) -(c). This Court has supplemental subject matter jurisdiction over Plaintiffs' state law claims under 28 U.S.C. § 1367(a) because they are so related to the RICO claims as to form part of the same case and controversy. Finally, this Court has personal jurisdiction over the Defendants pursuant to 18 U.S.C. § 1965. 6. Venue is appropriate in this district pursuant to 18 U.S.C. § 1965(a) as well as 28 U.S.C. § 1391(6)(1) and (2), as the Defendants reside in this district and a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this district. III. Parties. 7. Plaintiff, TOWN OF GULF STREAM, is a municipality organized and existing under the laws of the State of Florida. 8. Plaintiff, Wantman Group, Inc. is a Florida corporation, which maintains its principal place of business in Palm Beach County, Florida. 9. Defendant MARTIN E. O'BOYLE, ("MO") is a resident of Florida, residing in Palm Beach County. MO is also: (i) the President and owner of Defendant Commerce Group, Inc.; (ii) the sole member of Defendant Stopdirtygovernment, LLC; (iii) the sole member of Defendant Our Public Records, LLC; and (iv) a director of Defendant Public Awareness Institute, Incorporated. 10. Defendant WILLIAM F. RING ("Ring") is an attorney licensed to practice law in the state of Florida, and upon information and belief, is practicing with, and is a partner or shareholder of, Defendant The O'Boyle Law Firm, P.C., Inc., as well as its registered agent. Ring is also: (i) Vice-president of Defendant Commerce Group, Inc.; (ii) the founding President 3 of Defendant Citizens Awareness Foundation, Inc., (iii) and the registered agent for Defendants Our Public Records, LLC, and Stopdirtygovernment, LLC. 11. Defendant CHRISTOPHER O'HARE ("O'Hare") is a resident of Florida, residing in Palm Beach County. O'Hare is also a client of Defendant The O'Boyle Law Firm, P.C., Inc.. 12. Defendant JONATHAN R. O'BOYLE ("JO") is a resident of Florida, residing in Palm Beach County, and is an attorney that is not licensed to practice law in Florida; however, is the founding principal of Defendant The O'Boyle Law Firm, P.C., Inc. and currently its President, sole director and manager. JRO is the son of Defendant MO, and is also a director of Defendant Public Awareness Institute, Incorporated. 13. Defendant DENISE DEMARTINI ("Demartini") is a resident of Florida, residing in Palm Beach County. Demartini is also; (i) an employee of Defendant Commerce Group, Inc.; and (ii) the current President and director of Defendant Citizens Awareness Foundation, Inc 14. Defendant COMMERCE GROUP, INC. ("Commerce Group") is a Florida Corporation with its principal place of business located at 1280 W Newport Center Dr., Deerfield Beach, Florida 33442. Commerce Group is run by MO. 15. Defendant CITIZENS AWARENESS FOUNDATION, INC. ("CAFI"), purports to be a Florida non-profit corporation, with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 16. Defendant STOPDIRTYGOVERNMENT, LLC, ("Stopdirtygovemment") is a Florida limited liability company with its sole member being MO, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 0 17. Defendant OUR PUBLIC RECORDS, LLC, ("OPR") is a Florida limited liability company with its sole member being MO, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 18. Defendant PUBLIC AWARENESS INSTITUTE, INCORPORATED ("PAI") purports to be a Florida non-profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendants MO and JO, along with their family member Sheila O'Boyle (wife of MO and mother of JO) are the directors of PAI. 19. Defendant, THE O'BOYLE LAW FIRM, P.C., INC., ("O'Boyle Firm"), is a foreign corporation, a law firm, having its principal address located at 1001 Broad Street, Johnstown, Pennsylvania. Defendant JO is the sole officer and director of the O'Boyle Firm, but, is not licensed to practice law in the state of Florida. IV. Appropriateness of Class Action Treatment. 20. Plaintiffs bring this action on behalf of themselves and all others similarly situated pursuant to Fed. R. Civ, P. 23(b)(3). This action satisfies the numerosily, commonality, typicality, adequacy, predominance and superiority requirements of Rule 23. 21. The proposed Class is defined as: All municipalities, municipal agencies, or private contractors in the State of Florida who have been served with a public records request by any of the Defendants and which paid a settlement amount in conjunction with, or to resolve, the public records request [need to discuss] or which incurred attorneys' fees and costs to resolve public records requests from any of the defendants. 22. Excluded from the Class are the Defendants, their parents, subsidiaries, affiliates, officers and directors, any entity in which any of the Defendants has a controlling interest, all municipalities, municipal agencies, or private municipal contractors, who make a timely selection to be 5 excluded, all judges assigned to hear any aspect of this litigation, as well as their immediate family members, and any of the foregoing's legal heirs and assigns. 23. Plaintiffs reserve the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 24. Plaintiffs do not currently know the exact number of Class Members or their identities. However, Plaintiffs believe that Class Members number in the hundreds, and are thus sufficiently numerous and geographically dispersed so that joinder of all Class Members is impracticable. Attached hereto as part of Exhibit "A" is a chart listing the current known potential class members. Plaintiffs further believe that each Class Member, including themselves, have claims with a common origin and share a common basis. The claims of all Class Members, as well as the Plaintiffs, originate from the Defendants' pattern of racketeering and use of an enterprise to carry out such conduct. 25. The claims of the Plaintiffs are typical of the Class, in that Plaintiffs, like all Class Members, were injured in their business or property by reason of the Defendants' pattern of racketeering activity carried out by the RICO Enterprise, including the predicate acts of mail and wire fraud. When the RICO Enterprise created by the Defendants used the mail and the wires to: (i) send out an inconspicuous and frivolous public records request to the Class Members; (ii) then used the mail and the wires to demand a settlement of the records request in excess of the actual attorneys' fees and costs incurred by the Defendants, the Class Members, all of whom were injured in having to pay or defend against exorbitant and fraudulent settlement amounts, or risk being bombarded with additional frivolous public records requests and more fraudulent settlement demands. 26. Pursuant to Rule 23(b)(3), there are numerous questions of law and fact common to the Class and those common questions predominate over any questions affecting only individual Class Members, including whether Defendants: a. are associated, organized and acting as an enterprise with the purpose of carrying out a scheme to defraud; 51 b. devised, followed, and actively pursued a scheme to defraud and what the scheme to defraud consisted of, including; i. manipulation of the public records laws of Florida for financial gain, including the filing of frivolous, meaningless, and inconspicuous public records request with no real need or intention to ever review or obtain the public records, but rather, simply set the stage for the next step in the fraudulent scheme; ii. advance fraudulent and inflated settlement demands as a matter of practice, policy, and pattern, which include a substantial profit margin for the so-called "non -profits;" iii. as a matter of practice, policy, and pattern, extort compliance with the fraudulent and inflated settlement demands by threatening scores of additional frivolous public records requests to be followed by scores of additional fraudulent and inflated settlement demands; iv. set up false and fraudulent companies, both non-profit and profit, in furtherance of the scheme to defraud, and using the mails and wires to incorporate, indoctrinate, or otherwise create these bogus companies in the State of Florida; c. have engaged in conduct that constitutes a pattern of racketeering activity in furtherance of their scheme to defraud; d. committed the predicate criminal acts of mail and wire fraud in furtherance of their scheme to defraud; e. [add state law claims] 7 27. Additionally, another common question of law and fact is the appropriate measure of damages sustained by Plaintiffs and other Class Members. 28. A class action is superior to other methods for the fair and efficient adjudication of this controversy. Treatment as a class action will permit a large number of similarly situated persons to adjudicate their common claims in a single forum simultaneously, effectively, and without the duplication of effort and expense, and risk of inconsistent rulings that numerous individual actions would cause. Class treatment will also permit the adjudication of relatively small claims by Class Members who otherwise might not be able to afford to litigate their claims individually. This class action presents no difficulties in management that would preclude maintenance as a class action. 29. This forum is particularly desirable for the prosecution of this class action because Defendants all are residents in, or maintain a principal place of business in, this district, and presumably maintain many of those corporate records which are particularly germane to this action here. As a result of the foregoing, litigating on a class action basis in this forum will likely decrease the cost of discovery and prosecution, generally. 30. Plaintiffs have suffered the harm alleged on behalf of the Class, and have no interests antagonistic to the interests of any other Class Members. They are committed to the prosecution of this action and have retained counsel experienced in the prosecution of class actions, and in complex commercial actions in particular. Accordingly, Plaintiffs are adequate representatives and will fairly and adequately protect the interests of the Class. Plaintiffs are not aware of any other pending litigation concerning this controversy that involves Class Members, other than the individual cases brought by Defendants to enforce the frivolous and fraudulent public records requests. 31. Finally, the Class is readily definable. 8 V. General Allegations. a. Florida Public Records Law 32. Pursuant to Chapter 119, Florida Statutes, commonly referred to as the Sunshine law, the legislature has determined that: "It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency." 33. Florida prides itself on the transparency required of its elected officials, and its elected officials often pride themselves on providing such transparency to those that have elected them to serve. 34. Accordingly, pursuant to section 119.07, all qualifying entities: "shall permit the record(s) to be inspected and copied by an person desiring to do so, at any reasonable time, under reasonable conditions...." In furtherance of this transparency, "a custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees whether such a record exists and, if so, the location at which the record can be accessed." 35. Chapter 119 also extends the transparency requirement, as well as obligation to respond to public records request, to a "contractor," defined as "an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency...." See section 119.0701. 36. In addition to criminal penalties, public officers (or "contractors") are subject to prevailing party attorneys' fees in civil court upon a showing of "unlawful refus[al] to permit a public record to be inspected or copied..." M 37. It is this threat of prevailing party attorneys' fees that is the nucleus around which the Defendants created their scheme to defraud and organized their RICO enterprise to carry out that scheme. a. The Scheme to Defraud Originates. 38. Before and during January 2014, Martin O'Boyle and his son, Jonathan O'Boyle, met for the purposes of developing a scheme to defraud whereby they would form one or more contrived not-for-profit corporations. The purpose of the not-for-profit corporations would be to file thousands of public records request with municipalities, government entities and state contractors throughout the State of Florida. Of course, MO and JO could care less about the documents that were or would be requested—these documents were probably never read but rather simply tossed in the garbage. What MO and JO were really interested in was trying to cause the recipient of the public records request to overlook the request and then slap the recipient with a lawsuit or pre -suit settlement demand for an amount far in excess of their costs and fees and from which they would pocket a generous profit. 39. Prior to this, MO already had an extensive history filing public requests in New Jersey, Florida and elsewhere. MO previously used the public records request process in abusive fashion to file thousands of requests and to file vexatious and frivolous lawsuits in order to cripple local governments into granting his development plans and other demands. 40. In the case of Martin E. O'Boyle v. Peter Isen, 2014 WL 340104 (N.J.Super.A.D.), issued by the Superior Court of New Jersey, Appellate Division, on appeal from case no. L-2341-08 is attached hereto as Exhibit "1". The Court noted, From September 2007 through early July 2008, plaintiff and members of his family filed multiple requests pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:IA-1 to -13. Longport's only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, 10 the clerk went to the emergency room because of the stress she attributed to the flood of OPRA requests. And, in February 2008, the Borough's solicitor notified plaintiff that it would not accept any additional OPRA requests he filed, explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Longport had received 190 requests on October 16 and 17 and thirty filed October 31, 2007. In the Isen case, MO sued a resident of Longport for claiming MO was "the enemy of Longport". The suit for defamation was dismissed by summary judgment and affirmed by the appellate court. 41. Similarly, when his daughter was being prosecuted for driving under the influence in Palm Beach County, Florida, Martin O'Boyle inundated the Palm Beach County State Attorney's Office both individually and through companies he controls with over 1,300 requests for public records. (Attached hereto as Exhibit 11211). 42. However, in January of 2014, both MO and JO realized that they could use the Sunshine Act, not just to frustrate the workings of city governments, but also to generate an ill - gained profit for themselves. Titus, no longer was MO's purpose to torment local governments, bullying them into caving to his demands, but now, the purpose was to make money. 43. Accordingly, and despite the fact that JO was not a Florida lawyer, he opened and ran the O'Boyle Law Firm, as a foreign profit corporation on February 10, 2014. This law firm was opened and operated from his father's corporate offices of the Commerce Group Inc., (hereinafter referred to as "Commerce Group") located in Deerfield Beach Florida. Both MO and Commerce Group financed all activities of the O'Boyle Firm. 44. Now that they had the law firm in place, MO, JO, and the O'Boyle firm required "clients" —pre -textual plaintiffs that they could use in sending out frivolous and fraudulent public records requests and accompanying lawsuits. Accordingly, MO and JO decided to form 11 several not-for-profit entities as a front to make public records requests and create litigation for the O'Boyle Law Firm which then could be used to defraud defendants into paying inflated settlement amounts and line their pockets with the proceeds therefrom. 45. But, MO and JO knew that they could not, on its face, own and control the non- profit they now intended to create as well as the law firm to which all of the so-called "clients" would be referred. So, to further wrap their scheme to defraud in a shroud of legitimacy, they needed someone who is familiar with government transparency—someone that truly believes in the cause, and is not in it for the money. They found that someone in Joel Chandler. I 46. In January 2014 Martin O'Boyle and Jonathan O'Boyle contacted Joel Chandler (hereinafter referred to as "Chandler"). At the time Chandler had been working as a self- employed civil rights and public information activist. Chandler had considerable experience in making public records requests and in public records request litigation throughout the State of Florida and had garnered an excellent reputation as being a legitimate government transparency advocate. Chandler was invited to the O'Boyle home in Gulf Stream, Florida where both Martin and Jonathan O'Boyle resided. At the initial meetings Chandler and the O'Boyles discussed the soon to be created Florida O'Boyle Law Firm's capacity for handling public records request litigation throughout the state. 47. As a result of the meetings, Martin O'Boyle incorporated an alleged not-for-profit entity by the name of Citizens Awareness Foundation, Inc., (hereinafter referred to as "CAFE). Now, MO was funding not only the O'Boyle Law Firm, but also a feeder organization—CAFI. 48. Martin O'Boyle then provided actual cash to CAFI and the O'Boyle Law Firm as well as other consideration such as free rent, use of employees, and vehicles. To do this, Martin O'Boyle used both his own personal assets, and the assets of his business, Commerce Group. 12 49. Martin O'Boyle caused the entity, CAFI, to be incorporated in Florida and directed that his three close business associates, William Ring, Denise DeMartini, and Brenda Russell be named as the board of directors. 50. Martin O'Boyle also agreed with Chandler that he would hire Chandler to serve as the Executive Director of CAFI. As an unwitting participant, Chandler was excited to now be able to advance his cause, government transparency. Chandler's actual duty was to travel the state making hundreds of public records requests to public entities and state contractors. Thereafter, any evidence that would serve as a pretext for a lawsuit was to be forwarded immediately to Jonathan O'Boyle for the filing of litigation. Both CAFI and the O'Boyle Law Firm were operating from a room located in Martin O'Boyle's Commerce Group offices. 51. Prior to meeting the O'Boyle's, Chandler had earned approximately $5,000.00 during the year 2013. Upon opening the alleged foundation, Martin O'Boyle agreed to pay Chandler $120,000.00 per year and to provide him with a car to drive around the state to make public records requests. Martin O'Boyle advised Chandler that he would entirely fund the foundation and law firm on an unlimited basis including the payment of all court filing fees. Of course, unbeknownst to Chandler, both MO and JO were also going to require that all of CAFI's clients be represented by the O'Boyle Law Firm, that Chandler would not have exclusive control over whether a claim is settled and for how much, and that through the O'Boyle Law Firm and CAFI, MO and JO intended to obtain fraudulent settlements from unwitting defendants by claiming their fees and costs are an amount far in excess of what they actually were. 52. On January 27, 2014, Chandler was hired to act as Executive Director and CAFI was incorporated. No board meetings were called or occurred. Instead, Martin O'Boyle 13 undertook to direct the foundation, through his operatives that he placed on the board. Martin O'Boyle threatened to stop the flow of money when his orders were not followed by CAFI. 53. As instructed, Chandler began creating public records requests and legal claims and referred these to the alleged O'Boyle law firm. By February 24, 2014 the flow of litigation caused Chandler to expresses concern that the O'Boyle Law Firm was not adequately prepared for upcoming hearings. 54. In March 2014, Chandler suggested that one lawsuit, CAFI v. Barnes & Noble College Bookstore, be referred to the Thomas & LoCicero law firm in Tampa for filing. Chandler was directed by Martin O'Boyle's operatives that all public record request lawsuits by the foundation must be referred to the O'Boyle Law Firm for filing. 55. From January to at least July of 2014 Jonathan O'Boyle resided permanently at his parents' home in Gulf Stream, Florida. During that time Jonathan O'Boyle directed the O'Boyle Law Firm from his father's offices at Commerce Group, including removing attorneys who were handling CAFI cases. At no time did Chandler direct that specific attorneys be removed from CAFI cases or authorize such personnel change. These decisions were made and directed by Jonathan O'Boyle. a. Chandler Realizes He is Being Duped 56. At the end of March and in early April 2014, Chandler learned that William Ring and Martin O'Boyle were making unauthorized public records requests directed to the Town Of Gulf Stream, allegedly at the behest of CAFI. 57. In April 2014 Defendant Denise DeMartini (hereinafter referred to as "DeMartini") explained to Chandler that she was Martin O'Boyle's key employee and the 14 director on the board of CAFI, to whom Chandler was to report. DeMartini further explained that she would be directing the flow of litigation to the O'Boyle Law Firm. 58. Also during April, DeMartini advised Chandler that Martin O'Boyle had approved the CAFI mission statement. DeMartini, a non -lawyer, attended law firm meetings with Chandler and participated in reviews of all client matters, not just CAM cases. She made personnel decisions for the O'Boyle Law Firm and managed the alleged law firm's finances while claiming to be a board member of CAFI. 59. During April 2014 DeMartini demanded that Chandler produce a minimum of 25 new lawsuits a week for the alleged O'Boyle law firm to file. 60. During this time Chandler also learned from an attorney at the O'Boyle Law Firm that Jonathan O'Boyle had been drafting lawsuits and filing them under the attorney's name without the attorney's knowledge or consent. (Attached hereto as Exhibit 11511). Chandler was informed that this was done on more than one occasion and that Jonathan O'Boyle directed lawyers in the firm on settlement strategies. 61. In May 2014 DeMartini notified Chandler that she had full access to all of the O'Boyle Law Firm's internal records and client files. She shared all client reports with Chandler, not just reports concerning CAFI. 62. Based upon Chandler's learning that public records requests were being filed in the name of the foundation without his approval, Chandler again directed that all public records requests on behalf of CAFI be made by Chandler and Chandler alone. 63. On May 16, 2014 DeMartini asked Chandler for a recap of the number of cases that were referred by the foundation to the O'Boyle Law Firm during January through May. 15 DeMartini expressed her frustration to Chandler that he has only generated 211 cases in the 12 weeks since CAFI was created. 64. On May 19, 2014 Chandler met with Ring and DeMartini and again demanded that public records requests and lawsuits cease being filed without his knowledge or approval. After consulting with Martin O'Boyle, Ring and DeMartini agreed that this would no longer occur and confirmed that Chandler had the sole authority to make public records requests as well as to commence or to settle public record request lawsuits. Despite this, the O'Boyle Law Firm again filed another lawsuit against the town of Gulf Stream allegedly on behalf of CAFI without Executive Director Chandler's knowledge or approval. 65. During May 2014 Chandler learned that the O'Boyle Law Firm in violation of had no written fee agreements or engagement letters between the O'Boyle Law Firm and CAFI. 66. At the end of May 2014, DeMartini repeatedly requested that Chandler prepare verified complaints to be used by the O'Boyle Law Firm in public records request litigation. She specifically requested a template that could be used by the O'Boyle Law Firm. Chandler refused to comply with this demand and explained that his independent attorney had expressed concern that such action might constitute unauthorized practice of law. Despite this, DeMartini continued to attempt to coax Chandler to draft lawsuits for the O'Boyle Law Firm. 67. By the end of May, DeMartini and Jonathan O'Boyle continued to express their frustration to Chandler. Chandler insisted on reviewing and verifying all lawsuits to be filed by the foundation. DeMartini and O'Boyle expressed concern that Chandler's review was slowing down the flow of litigation generated by the firm. W 68. By this point it had become abundantly clear to Chandler that DeMartini, Ring and O'Boyle were only concerned with the volume of cases that could be generated, and of course the profits that could be had in such cases by way of fraudulent settlement demands, rather than any public service. Chandler's repeated attempts to inform Ring and DeMartini of opportunities to work with civil rights groups, public agencies, student groups and journalists on open government issues were completely ignored. 69. On May 28 2014, DeMartini emailed Chandler demanding that more cases be filed. 70. On June 2, 2014 William Ring denied Chandler's request for authorization to refer cases to other law furrrs besides the O'Boyle Law Firm. 71. On June 11, 2014 Chandler met with his private attorneys concerning what he perceived as serious ethical issues regarding CAFI and the O'Boyle Law Firm. His attorneys unanimously recommended to Chandler that he resign from the alleged foundation. 72. On June 12, 2014, Chandler met with Barbara Peterson of the Florida First Amendment Foundation to seek her counsel on his concerns about the alleged foundation and the O'Boyle Law Firm. Barbara Peterson advised Chandler to resign and that his resignation should be made publicly. 73. On or about June 16 Chandler learned that Martin O'Boyle's Commerce Group receptionist Mohler had been directed by Martin O'Boyle to file lawsuits against the Town of Gulf Stream naming CAM as plaintiff. Mohler also disclosed that she had been using the CAM email address without Chandler's knowledge or consent at the direction of Martin O'Boyle and Commerce Group in order to serve public records requests on behalf of CAFI. 17 74. In June 2014 it came full circle. Chandler learned that MO, JO, the O'Boyle Firm, Commerce Group, CAFI, Ring, and DeMartini were operating an enterprise that was engaged in a scheme to defraud not only him, but also the defendants in the hundreds if not thousands of public records requests that were made. 75. The scheme involved the firm demanding monetary settlements on behalf of CAFI far beyond the actual attorneys' fees and expenses incurred and contemplated in F.S. § 119.12 and to keep all of the proceeds including the "windfall". 76. Ring, Jonathan O'Boyle and DeMartini requested that Chandler approve the scheme. Thereafter Chandler learned that Ring, DeMartini and Jonathan O'Boyle actually represented that Chandler had approved the scheme, even though he had vehemently objected to it. (Attached hereto as Exhibit 11611). 77. On June 19, Ring and DeMartini advised they were resigning from the board of CAFI and that Chandler would become a board member and president. Chandler responded by calling Ring and inquiring "Do I have any say in this?" Ring responded by saying that the decision had been made and that he and DeMartini would be working more closely with the law firm and that Ring would become a partner in the law firm. 78. At the same time Chandler learned that Mohler was continuing to make public records requests at Martin O'Boyle's direction to the town of Gulf Stream. These were made to appear as if they were being made on behalf of the Citizens Awareness Foundation even though Chandler was unaware of the requests and never consented to these being made by CAFI. 79. On June 23, 2014 amended articles were filed on behalf of CAFI with the Florida Secretary of State. These dropped Ring and DeMartini as board members. Peter DiLeo, Kathleen Laca and Joel Chandler were listed as new members of the board along with Brenda Russell. 18 Chandler was named as the president. Chandler was never consulted nor did he authorize such change. 80. In late June 2014 Chandler learned that the law firm was still engaging in the "windfall" scheme by demanding and collecting for more in legal fees than was actually earned in filed cases. (Attached hereto as Exhibit "T'), 81. When Chandler expressed his outrage he was advised that the "windfall" settlements were in accordance with the O'Boyle Law Firm policy. Chandler decided at that time that was "the final straw" and drafted his letter of resignation. 82. On June 27, 2014 Ring advised Chandler not to direct his concerns about the firm's "windfall" scheme to attorneys at the O'Boyle Law Firm, but instead to deal with Ring. 83. On June 30, 2014 Chandler arrived at the Commerce Group/CAFI/O'Boyle Law Firm office and presented his letter of resignation to Ring. Immediately thereafter Martin O'Boyle demanded that Chandler retract his email confirming Jonathan O'Boyle's complicity in the "windfall" scheme. (Attached hereto as Exhibit "811). Martin O'Boyle threatened Chandler that if he did not retract his email concerning Jonathan O'Boyle's involvement in the "windfall" scheme, Chandler would "force us to respond by making your life very unpleasant". Thereafter Chandler refused to retract the emails and Martin O'Boyle repeated his threats several times. 84. Upon Chandler's resignation, DeMartini continued to seek Chandler's help in accessing data so that more lawsuits could be filed, allegedly on behalf of CAFI. Ring echoed the request seeking assistance from Chandler to locate data to allow additional lawsuits to be filed by the alleged O'Boyle Law Firm. 85. As part of the scheme the O'Boyle Law Firm has now filed hundreds of spurious lawsuits on behalf of the CAFI and other pretextual entities and individuals. These defendants 19 have become engaged in a massive scheme to generate and collect attorneys' fees from Florida agencies and state contractors beyond any fees actually earned. 86. [insert facts on other defendants] 87. This fraudulent scheme has directly injured the Class members as well as the Plaintiffs. To date, it is believed that the following putative members have been injured in the following amounts: Municpality/Contractor Settlement Paid Date Settlement Paid 88. Based on the foregoing, Plaintiffs and Class Members were induced to pay $ based on Defendants' fraudulent claims for attorneys fees and costs. Asd VI. COUNT I—Violation of 18 U.S.C. § 1964(a) and (c). 89. Plaintiffs' adopt and incorporate by reference paragraphs 1 through 88 above as though fully set forth herein. 90. Plaintiffs' seek relief under 18 U.S.C. § 1964(a) of RICO to prevent and restrain Defendants from committing future violations of section 1962, including, but not limited to, ordering the Defendants to divest themselves of their interest in the enterprise; impose reasonable restrictions on the future activities or investments of the Defendants to ensure engagement in a similar endeavor as described herein; and order dissolution of all corporate defendants. 91. Plaintiffs also seek relief under 18 U.S.C. § 1964(c) of RICO, and seek threefold the damages sustained by the Plaintiffs and the Class Members, along with costs of this suit, including a reasonable attorney fee. 92. The Plaintiffs, and each Class Member that Plaintiffs represent are persons within the meaning of 18 U.S.C. § 1964(c) and § 1961(3). 93. 18 U.S.C. § 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." Through § 1964(c), "any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States District Court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee...." Because the Plaintiffs, along with the Class Members were injured in their business or property by Defendants violation of 1962, they are entitled to threefold their damages, attorneys' fees and costs. a. The Enterprise. 94. The Defendants, through themselves and through their employees and agents, formed a union and association -in -fact entrerprise that engages in, and the activities of which affect, interstate commerce. This enterprise has as its goal, a scheme to defraud municipalities, municipal agencies, private contractors of municipalities and anyone else subject to the Sunshine Law, into paying inflated and fraudulent settlement amounts so as to increase profits to the enterprise. 95. Every Defendant had a role or position in the enterprise, all of which worked together towards the common goal of defrauding municipalities, municipal agencies, private contractors of municipalities and anyone else subject to the Sunshine Law. The Defendants' role and its importance to the enterprise, as well as how it advanced the interest of the enterprise is as follows: 21 a. Martin O'Boyle: Martin O'Boyle is one of the engineers of the enterprise's scheme to defraud, as well as its principal financier through his various business entities. Martin O'Boyle directs the enterprise, and is responsible for the following actions taken to advance the goal of the enterprise: i. Financing the opening and continued existence of the O'Boyle Law Firm, along with his son, Jonathon O'Boyle; ii. Financing the opening and continued existence of CAFI; iii. Directing the operations of CAFI through his appointed directors and key employees of his other business entities such as Commerce Group. iv. Mandating, under threat of no funding, that: 1. CAFI file no less than 25 cases per week; 2. That all cases filed by CAFI be referred to the O'Boyle law firm; 3. That all cases be settled for an amount in excess of the fees and costs incurred in the case. v. [additional facts] b. Jonathan O'Boyle. Jonathan O'Boyle is one of the engineers of the enterprise's scheme to defraud, along with his father Martin O'Boyle. To advance the interest of the enterprise, Jonathan O'Boyle has taken the following actions: i. Created, and sustained the O'Boyle Law Firm, a necessary element of the enterprise; ii. Filed spurious, frivolous, and baseless public records request as well as resulting lawsuits; 22 iii. Ordered, that complaints for public records suits be filed on behalf of plaintiffs, such as Chandler, without knowledge or consent of the Plaintiffs; iv. Ordered, that as a pattern and practice, all public records suits would be settled for an amount in excess of the actual fees and costs incurred to generate a profit for the enterprise; v. [additional facts] c. Christopher O'Hare. [I have no facts on him—more facts] d. William Ring. c. Denise DeMartini. f. The O'Boyle Law Firm. g. Citizens Awareness Foundation, Inc. h. Commerce Group. i. Public Awareness Institute, Inc. j. Citizens Awareness Foundation, Inc., k. Our Public Records, LLC; 1. Slopdirtygovemrnent, LLC. 96. The members of the enterprise set forth above function in a fashion so as to become a continuing unit which furnishes a vehicle for the commission of the racketeering activity set forth below. The continuity of the enterprises' actions will be repeated in the future if it is allowed to continue. a. Pattern of Racketeering. 23 97. Pursuant to 18 U.S.C. § 1961(1), "racketeering activity" includes the predicate crimes of mail fraud (18 U.S.C. § 1341) and wire fraud (18 U.S.C. § 1343). Under to 18 U.S.C. § 1341, "whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises... for the purpose of executing such scheme or artifice or attempting so to do" and uses the mails or other commercial carrier to do so, commits mail fraud. Similarly, under 18 U.S.C. § 1343, "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire," commits wire fraud. 98. All members of the enterprise have committed at least one predicate act of mail or wire fraud which when combined constitutes a pattern of racketeering undertaken by the enterprise to accomplish the goals of the enterprise. Examples of predicate acts by each member of the enterprise is as follows: a. Martin O'Boyle: i. By using the mail and the wires to incorporate CAFI on _, 2014, etc.[need concrete examples of using the mails and wires to advance the fraudulent scheme—documents attached would be beneficial]. b. Jonathan O'Boyle. c. Christopher O'Hare. [I have no facts on him—more facts] d. William Ring. e. Denise DeMartini. f. The O'Boyle Law Firm. [this should list a chart of all public records request sent, lawsuits filed, and most imnortantly, settlement demands made] 24 g. Citizens Awareness Foundation, Inc. h. Commerce Group. i. Public Awareness Institute, Inc. j. Citizens Awareness Foundation, Inc., k. Our Public Records, LLC; 1. Stopdirtygovernment, LLC. 99. Each of these actions is a regular way of doing business for the enterprise's members and threaten repetition in the future. b. Reliance. 100. The frivolous and often inconspicuous public records request, as well as the false and fraudulent settlement demands that were sent by the mails and the wires were justifiably relied upon by Plaintiffs and Class Members when they paid the fraudulent and inflated settlement demands. c. Proximate Cause and Damages. 101. The wrongful conduct of the enterprise set forth above, including the acts of mail fraud and wire fraud, have directly harmed the Plaintiffs and the Class Members. The Plaintiffs and the Class members paid inflated and fraudulent settlement demands based on the frivolous and often inconspicuous public records requests made by the enterprise, amounts they would not otherwise have paid. [need to include a chart listing some of these if possible] 102. In addition, when the volume of the frivolous public records request began to increase exponentionally as the scheme to defraud progressed, the Plaintiffs and Class Members were forced to incur additional internal costs associated with having to try and respond to the same. [need to include a chart listing some of these if possible] 25 103. There is no person who has more directly sustained these injuries than the Plaintiffs and Class Members, and the injuries are a direct and intended result of the enterprise's scheme to defraud the Plaintiffs, as well as the mail and wire fraud acts undertaken as part of the scheme to defraud the Plaintiffs and Class Members. 104. Pursuant to 18 U.S.C. § 1964(c), Counter -Plaintiff requests an award of attorneys' fees and costs for having to bring the instant suit. WHEREFORE, Plaintif VII. COUNT II VIII. COUNT III IX. COUNT IV X. COUNT V XI. JURY DEMAND Plaintiffs demand a trial by jury on all issues so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of all other similarly situated, pray for relief and judgment as follows: A. Certifying the proposed Class and approving Plaintiffs Town of Gulf Stream and as class representatives; B. Appointing Richman Greer, P.A as class counsel; C. Awarding Plaintiffs and the Class damages in an amount to be proven at trial, along with costs, interest, an attorneys' fees; and D. Entering whatever orders the Court deems necessary to divesting the Defendants from their interest in the enterprise and imposing reasonable restrictions on the future activates or investments of the Defendants to prohibit them from engaging in a similar type endeavor; E. Awarding any further relief the Court deems just and proper. 26 RE: O Boyle v. Gulf Stream - Robert Sweetapple RE: O'Boyle v. Gulf Stream https://ms I I-eden.eZengine.nettowa/#viewmodel=ReadMessageltem&... Gerald F. Richman <GRichman@richmangreercom> Wed 11/26/2014 5:50 PM ro:Cynthia Bailey </O=JABIP/OU=First Administrative Group/cn=Recipients/cn=cbailey>; Robert Sweetapple <rsweetapple@ sweetapplelaw.com>; ccjoconnor@jonesfostercom <joconnor@jonesfostercom>; Leora B. Freire <LFreire@richmangreerccm>; Eric M. Sochi <ESodh i@richmangreercom>; I of4 7/5/2016 10:30 AM RE: O'Boyle v. Gulf Stream- Robert Sweetapple https://mslI-eden.c2engine.nettowa/t/viewmodel=ReadMessageltem&—.. While speaking to Mitch Berger today on an unrelated matter he again asked about the town's position re settlement. I told him I would get back to him on Monday, but meanwhile he volunteered that he is having O'Boyle drop the disqualification motion against you, but that CAR would be proceeding with Its motion. He also again mentioned that what the town did was "wrong" re taking down his signs running for mayor, but that O'Boyle will "admit" that he did fly banners over the town, etc. We should speak on Monday re a response. We also need the follow up info re O'Hare so we can finalize the Rico complaint. Gerald F. Richman / Board Certified in Civil Trial Law and Business Litigation by The Florida Bar/Shareholder Richman Greer P.A. One Cleariake Centre Suite 1504 2S0 Australian Avenue South West Palm Beach Florida 33401 Office: 561.803.3500 Fax 561.820.1608 Direct 561.803.3516 Email: GRichman@richmangreercom V -card U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt This email is personal to the named recipient(s) and may be privileged and confidential. If you are notthe intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.. From: Cynthia Bailey[mailto:cbailey@sweetapplelaw.com] Sent: Wednesday, November 26, 2014 5:41 PM To: mberger@bergersingerman.com Cc: OConnor, Joanne M. (JOConnor@jonesfoster.com); Gerald F. Richman; csmith@culversmithlaw.com; ddesouza@desouzalaw.com; Nick Taylor (ntaylor@oboylelawfinn.com); wring@commerce-gmup.com Subject: O'Boyle v. Gulf Stream Mr. Berger, Please see attached correspondence from Bob Sweetapple. Thank you. 2 of 4 7/5/2016 10:30 AM RE: O'Boyle v. Gulf Stream- Robert Sweetapple https://rmII-eden.e2engine.net/owa/#viewmodel=ReadMessageltem& CYNTHIA J. BAILEY Certified Paralegal/Florida Certified Paralegal/Florida Registered Paralegal Sweetapple, Broeker & Varkas, P.L. 20 SE 31d Street Boca Raton, FL 33432 (561) 392-1230 (t) X. 305 (561) 394-6102 (f) cbailev@sweetar)plelaw.com STATEMENT OF CONFIDENTIALITY The information in this e-mail is confidential and may be legally privileged. If you are not the named addressee, or If this message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate, maintain, save or otherwise use this email. Please contact the sender at the above number immediately. Delivery of this message to any person other than the intended recipient(s) is not intended in any way to waive privilege or confidentiality. 3 of4 7/5/2016 10:30 AM RE: O'Boyle v. Gulf Stream - Robert Sweetapple https:Hrns I I-eden.e2engine.netlowa/#viewmodel=ReadMessageltem&... 4 of 4 7/5/2016 10:30 AM LAW OFFICES OF SWEETAPPLE, BROEKER & VARKAS, P.L. DOUGLAS C. BROEKER, P.A. 44 West Flaliler Street, Ste. 1500 Miami, Florida 33130-61117 Telephone (305) 374.5623 Facsimile: (305) 358-1023 ROBERT A. S WEETAPPLE ! •• DOUGLAS C. BROEKER KADLSHA D. PHELPS ALEXANDER D. VARKAS, III ASHLEIGH M. GREENE BERKLEY S. VITALE � 90ARn C0liff1®9VANPSSIJi1WTpN ATRMN9Y •• BOAPn CE0.TP®CIVLLTPW.ATItlWEY July 12, 2016 VIA EMAIL Joanne O'Connor, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, Florida 33402-3475 S WEETAPPLE & VARKAS, PA 20 S.E. 34 Shat Boca Raton, Florida 33432-4914 Telephone: (561) 392-1230 Facsimile: (561) 394-6102 Please Reply To: Boca Raton rsweetapplc&wmtapplelaw.com *arkasialsweetapplelaw.com bvitale@swmtnpplelaw.com cbailey@swmtapplelaw.com dsmith@swmtapplelaw.com Re: Public Records Request to SBV re: RICO emails w. Jones Foster Dear Joanne: Pursuant to Mr. O'Hare's public records request dated Saturday, July 2, 2016 at 7:04 am., I have located what I believe are the three earliest communications between your firm and our firm which mention RICO. I have enclosed the following emails: Date Time To From Sub'ect 4/21/2014 3:41 p.m. Robert Sweetapple Ashlee A. FW: Potential Responses Richman to Public Records Requests 4/21/2014 3:46 p.m. Robert Sweetapple Ashlee A. FW: litigation privilege Richman abuse of rocess 10/25/2014 12:07 p.m. Gerald Richman, Scott Morgan Gulf Stream legal action Joanne O'Connor, Robert Sweetapple It appears that the first two items are actually in reference to defense of public records requests. We will leave it to your office to determine what privilege, if any, should be asserted. Please note that pursuant to the request, I have made it a point not to exceed 15 minutes of search time and was as careful as possible during that time. However, a search of all office emails Joanne O'Connor, Esquire July 12, 2016 Page 12 and hard files would take at least 3 hours. My hourly rate is $125.00. CM Encl. Very truly yours, ti CYNTJ. MILLER, , FCP, FRP LAW OMCE$ OF SWEETAPPLE. BROEKER & VARKAS, P.L. FW: Potential Responses to Public Records Requests -Robert Sweerapple https://rml l-eden.e2engine.net/owa/#viewnwdel=ReadMessageltem&... FW: Potential Responses to Public Records Requests Richman, Ashlee A. <ARichman @jonesfostercom> Mon 4/21/2014 3:41 PM To:Robert Sweetapple<rsweelapple@sweetapplelaw.com>; 1 attachment Potential Responses to Public Records Requests.doa; See the attached memo regarding the research I previously did on our potential responses to the acts (contains some info re: abuse of process, fraud on the court, RICO etc). I will send you cases and other memos I have done, as well. Thanks Ashlee JONESFOSTER Ashlee A. Richman Attorney Direct Dial: 561.650.0467 1 Fax: 561.650.5300 1 arichmanaa jonesfostetcom Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561-659-3000 1 wwwjonesfostetcom U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt This email is personal to die named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received tris in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: Richman, Ashlee A. Sent: Monday, March 31, 2014 5:55 PM To: Kieta, Marge Subject: Potential Responses to Public Records Requests Please save and profile in town of gulf stream general. Had issues with perfect law today and couldn't save it thanks I oft 7/5/2016 10:23 AM FW: Potential Responses to Public Records Requests -Robert Sweetapple https://nisl l-eden.e2engine.net/owa/gviewniodel=ReadMessageItem&... JONESFOSTER Ashlee A. Richman Attorney DirectDial;- 561.650.0467 1 Far. 561.650.5300 1 arichman 'onesfoso com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flaglec Drive, Suite 1100, West Palm Beach, Florida 33401 561-659-3000 1 www,jonesfoster.com U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. 2 oft 7/5/2016 10:23 AM Potential Responses to Public Records Requests/Harassing Behavior/Lawsuits - Malicious Prosecution o As to the lawsuits brought by O'Boyle, O'Hare, etc.: barred by the litigation privilege o As to the public records requests themselves: case law provides intent behind public records request is irrelevant (even if made for harassment purposes) Note: we may have a cause of action as to the numerous requests and lawsuits (see below), but the Town will still have an obligation to respond to the requests themselves- no getting around this absent a change in the statute. - Abuse of process o Very little support/most likely barred by litigation privilege See Miami Herald Pub. Co Div. of Knight-Ridder Newspaper Inc v Ferre, 636 F.Supp. 970 (S.D. Fla. 1985)- involved the mayor bringing a counter claim for abuse of process after it was alleged he destroyed public records. The case did not work out favorably for the mayor, but the facts are not very analogous. This is the pertinent language from the case that may be supportive of an abuse of process claim: "An abuse of process arises only when there has been a perversion of court processes to accomplish some end which the process was not intended by law to accomplish, or which compels the party against whom it has been used to do some collateral thing which he could not legally and regularly be compelled to do ... [[In order to state a claim for abuse of process, FERRE would have to allege that plaintiffs sought the preliminary injunction in this lawsuit in order to coerce FERRE into taking some collateral action not properly involved in the proceeding, i.e., an action other than the intended one of preserving public records. As there is no allegation of coercion, FERRE has failed to state a claim for abuse of process." We may have an argument regarding the records requests and lawsuits initiated for purposes of coercing the Town into allowing variances that were previously denied (plus the settlement O'Boyle got in July/August 2013, incentivizing O'Hare into believing he can obtain the same results). However, we still meet the obstacle of case law interpreting the Public Records Act repeatedly finding that the intent behind records requests themselves not affecting the Town's obligation to respond to the requests. If O'Hare or O'Boyle (etc.) are attempting to obtain some other end (ex. To obtain a variance for his property, or any favorable treatment by the Town to end the records requests) beyond the interest in obtaining public records for the sake of obtaining them, there may be an abuse of process claim. If the sole purpose, however, is simply to obtain the records (as numerous as they may be), he would have the right to do so. See Curry v. State, 811 So. 2d 736 (Fla. 4th DCA 2002)- court held that the "motivation of the person seeking the records does not impact the person's right to see them under the Public Records Act." Curry stands for the proposition that requested records must be produced regardless of motive, not that a Town cannot pursue damages where records requests lawsuits are used as a tool to manipulate a Town Council to obtain favorable results separate from the public records request lawsuits. An abuse of process action would not be a claim that the public records requests themselves are the abuse of process (though over 200 requests in a month form one requester could easily be seen as excessive and harassing); instead, it would be a claim that the subsequent public records lawsuits (and any discovery or actions taken after initiating process) were abusive tactics with ulterior motives to coerce and manipulate the Town. - Fraud on the Court Could move to dismiss on this basis, but not really a proactive tactic to take against O'Boyle or O'Hare - Vexatious Litigant Statute o Pro se 5 losses in 5 years (already moving for this in O'Boyle matter)- it needs to be in a case where he is unlikely to prevail on the merits. Downside- he can continue to bring public records requests and lawsuits (as long as he has counsel and gets permission of court) even if he is deemed V.L under the statute. o May v. Barthet, 934 So. 2d 1184 (Fla. 2006) — citing section 68.093, Fla. Stat. - 57.105 in state court actions, rule 11 in federal court o Takes time and defense posture rather than proactive - Inherent authority of court to sanction o Court could issue injunction and/or show cause (contempt/sanctions) for vexatious litigation. See Hamilton v. State, 945 So. 2d 1121 (Fla. 2006) Supreme Court issued order to show cause why litigant should not be barred from filing pro se petitions to supreme court- Hamilton filed three separate actions (including petition for writ of mandamus), submitted over 130 filings in those cases, each case dismissed and each motion etc was dismissed, denied or stricken. She was ordered to show cause why court should not find she abused legal system and impose sanction for abuse. Court recognized "inherent judicial authority to sanction an abusive litigant." (recognizing "justification for such sanction lies in the protection of the rights of others to timely review of their legitimate filings")- cited U.S. Supreme Court decision re same. Court concluded she abused processes of the court, sanctions were merited Inequitable conduct doctrine o Bitterman v. Bitterman defines contours of inequitable conduct doctrine - permits award of attorney's fees where one party has exhibited egregious conduct or acted in bad faith, even where no statute or contract authorizes (only for extreme cases of bad faith, vexatiousness, wanton, oppressive conduct) - RICO — mail/wire fraud o Federal RICO action for mail/wire fraud- they may be able to make numerous public records requests (and we may have to respond to those) but, if they are doing so for an ulterior purpose (extortion?) we can argue mail/wire fraud violations o U.S. v. Pendergraft, 297 F. 3d 1198 (11th Cir. 2002). The defendants in Pendergraft were convicted of mail fraud and conspiracy to commit mail fraud based on affidavits they gave falsely accusing the Chairman of the Marion County Board of Commissioners of threatening them if their abortion clinic remained open. Id. at 1200. The affidavits were used in support of a summary judgment motion and were mailed to other parties involved in the case. Id. at 1201-02. The Eleventh Circuit reversed the convictions for mail fraud and conspiracy to commit mail fraud, because the Chairman knew that he had not made the alleged threat and thus the Chairman and County could not be deceived by the false affidavits. Id. at 1209. Therefore, the sole basis upon which the court reversed the convictions was that the defendants could not have intended to deceive the County when they mailed the false affidavits. In U.S. v. Lee, 427 F. 3d 881 (11th Cir. 2005) the Eleventh Circuit took the opportunity to explain the limited holding in Pendergraft. The Eleventh Circuit rejected bright line rule and noted that the language in Pendergraft —that serving a motion by mail was a common litigation practice and prosecuting litigation activities would tend to inhibit policies promoting access to the courts — was simply dicta. Id. at 890. The Court also found that unlike Pendergraif, the defendants "had the necessary intent to deceive" because their mailings were intended to deceive banks, not the court, by knowingly writing checks on closed accounts and using the mails to confuse and avoid creditors. Id. at 890-91. o We can argue the email/mail public records request were intended to influence the Town, as opposed to the courts, and made in furtherance of a scheme designed to induce the Town to pay settlements, allow variances etc. o Can argue litigation privilege doesn't bar this claim because the public records requests did not occur in judicial proceedings FW:litigationprivilegeabuseofprocess-RobertSweetapple https://trsll-eden.e2engine.net/owa/#viewmodel=ReadMessageitem&... FW: litigation privilege abuse of process Richman, Ashlee A <ARichman@jonesfostercom> Mon 4/21/2014 3A6 PM To:Robert Sweetapple<rsweetapple@sweetappielaw.com>; 1 attachment Westlaw_Document 12 59 K.doc; JONESFOSTER Ashlee A. Richman Attorney DirectDiah 56L650.0467 1 Fax: 561.650.5300 1 atichman 'onesfosteccom Jones, Poste{ Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561-659-3000 1 wwwionesfosteccom U.S. Treasury Regulation Circular 230 requites us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidentiaL If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message From: westlaw@westlaw.com (malito:westlaw@westlaw.com] Sent: Tuesday, April 01, 2014 2:00 PM To: Richman, Ashlee A. Subject: litigation privilege rico abuse of process Westlaw Delivery Summary Report for ELIBRARIES, Your Search: RICO &'litigation privilege" Date/Time of Request: Tuesday, April 1, 2014 12:59 Central Client Identifier: ELBRARIES I oft 7/5/2016 10:23 AM FW: litigation privilege abuse of process - Robert Sweetapple Database: Citation Text: Lines: Documents: Images: Recipient(s): https://ms I I-eden.e2engine.net/owa/#viewtmdel=Read Messageltem&... FL,CS-ALL Slip Copy 248 ariclirnan(@ionesfoster.com The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates. 2 of 2 7/5/2016 10:23 AM Westlaw. Slip Copy, 2013 WL 5435780 (S.D,Fla.) (Cite as: 2013 WL 5435780 (S.D.Fla.)) Only the Westlaw citation is currently available. United States District Court, S.D. Florida. EMI SUN VILLAGE, INC., et al., Plaintiffs, V. James B. CATLEDGE, et al., Defendants. No.13-ev-21594-KMM. Sept. 27, 2013. ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS K. MICHAEL MOORE, District Judge. *1 THIS CAUSE came before the Court upon the Motions to Dismiss filed by Defendants Michel Diaz and Diaz Reus & Targ, LLP ("Diaz Mot.") (ECF No. 18) and Defendants Hilda Piloto and Amstein & Lehr, LLP ("Piloto Mot.") (ECF No. 19). Plaintiffs re- sponded ("Diaz Resp." and "Piloto Resp.") (ECF Nos. 29 and 30) and Defendants replied ("Diaz Reply" and "Piloto Reply") (ECF Nos. 31 and 32). Plaintiffs filed a Surreply with respect to both Motions (ECF No. 47).M' These Motions are now ripe for review. UPON CONSIDERATION of the Motions, the Responses, the Replies, the Surreply, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order. FNI. Defendants David Rocheford and Richard Smith have filed a Notice of Joinder with respect to the Piloto Motion to Dismiss (ECF Nos. 22 and 27). Defendant Klaus Hofman has filed a Notice of Joinder with respect to both Motions to Dismiss (ECF No. 20). L BACKGROUND This action emanates from a prior proceeding in Page 1 this District before the Honorable United States Dis- trict Judge Alan S. Gold. Piloto Mot., at 1-4 (refer- encing Hojmon v. EMI Resorts, Inc, et el . (09-cv 20526 ASG) ("the Gold Litigation")). In that case, father and son Frederick and Derek Elliott ("the Elliots") and a web of related companies ("the Elliott Companies") were accused of defrauding "hundreds of investors ... out of approximately $170 million in an elaborate Ponzi scheme" involving resort property investments in the Dominican Republic. Id Now, the former Gold Litigation defendants ("the Gold De- fendants") have brought the instant action against the former Gold Litigation plaintiffs (`the Gold Plain- tiffs") for abuse of process and malicious prosecution. See ids FN2. Derek Elliot is not a Plaintiff in the in- stant action. Plaintiff Frederick C. Elliot is the founder of the Elliott Companies. Complaint (ECF No. 1), at 3. The remaining Plaintiffs in the instant action include the following Elliot Companies: EMI Sun Village, Inc.; Sun Village Juan Dolio, Inc.; EMI Resorts (S.V.G.), Inc.: Corfresco Holings, Inc.; Villa Santa Ponca, S.A.; Immobilaria Moncey, S.A., and Sun Village Juan Dolio Associates, LLC. Id at 1 FNa FN3. Defendants contend that Plaintiff Sun Village Juan Dolio Associates, LLC was not a defendant in the Gold Litigation and therefore cannot act as Plaintiff in the instant action. Piloto Mot ., at 9-10. As this Court otherwise resolves this action in favor of Defendants, it is not necessary for this Court to address this argument. Defendants in the instant action include allegedly defrauded investors and Gold Litigation plaintiffs David Rocheford, Richard Smith, John Steve 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2013 WL 5435780 (S.D.Fla.) (Cite as: 2013 WL 5435780 (S.D.Fla.)) Thompson, and Klaus Hofman. Id. at 4-5. Additional Defendants include several attorneys involved in the Gold Litigation, specifically Defendant Michael Diaz ("Diaz'), managing partner of Defendant law firm Diaz, Reus, & Targ, LLP ("DRT'), and Defendant Hilda Piloto, partner at Defendant law firm Arostein & Lehr, LLP ("Arnstein'7. Id at 3-4. The remaining Defendants are James B. Catledge, founder and pres- ident of Defendant Impact, Inc., a timeshare marketing and sale business. Id. at 3. Catledge and Impact were ultimately implicated as responsible parties alongside the Elliots in the Gold Litigation. Id. at 6-7.FN4 FN4. Cadedge and Impact have not re- sponded to the Complaint and Clerk's Default has been entered against Impact. Clerk's Default (ECF No. 55). The Gold Litigation commenced in March 2009 with the entry of a temporary restraining order against the Gold Defendants which expired after ten days. Piloto Mot, at 3-4.Frts Judge Gold proceeded to as- sume jurisdiction over the interests of the plaintiff investors and appointed former United States District Judge and former United States Attorney Thomas Scott as Special Master and Monitor. Id. at 2-5. Scott's responsibilities included investigating the diversion of investor assets; determining Catledge's culpability; conducting a forensic analysis of the Ellims' assets; and maintaining control over the Elliots' use and transfer of funds. See id at 4-5. FN5, Legal actions were also initiated against the Gold Defendants in Turks & Caicos and the Dominican Republic, where it was believed assets had been transferred. Piloto Mot., at 3-4. *2 Scott filed a Report and Recommendation confirming the allegations in the underlying complaint and identifying potential RICO violations, theft, se- curities fraud, wire fraud, and money laundering. Id. at Page 2 5-6. Scott further recommended that the Elliots and Catledge be referred for possible criminal prosecution. Id at 6-7. Judge Gold found that the matter should be referred for criminal prosecution. Id As a result of the criminal referral, the SEC sued Derek Elliot, who consented to a permanent ban from the securities industry and admitted to using investor money to pay prior investors and misleading investors into believing the project was profitable. Id. at 7-8. Derek Elliot and Cadedge were later indicted in the Northern District of California. Id. at 8. In 2010 Judge Gold determined that the action filed collectively by the Gold Plaintiffs had been im- properly joined and severed the matter into 232 new civil actions. Id at 7; Order Granting Motion to Sever (09--cv-20526-ASG, ECF No. 1033). Subsequently, each of the Gold Plaintiffs dismissed their actions without prejudice on the basis that they could not afford to continue the lawsuits individually. Piloto Mot., at 7; Notice of Compliance (09-cv 20526 -ASG, ECF No. 1123).m FN6. Defendants contend that the voluntary dismissals are not relevant to the issue of whether the Gold Litigation was warranted as the dismissals did not pertain to the merits of that litigation. Piloto Mot, at 13-14. Plaintiffs, the underlying defendants in the Gold Litigation, have now brought the instant action. Counts I -XIV of the Complaint are abuse of process and malicious prosecution claims directed at De- fendants Diaz, DRT, Piloto, Amstein, Hofman, Thompson, and Catledge. Complaint, at 31-43. Count XV is a civil conspiracy claim directed at all De- fendants with the exception of Impact. Id. at 43-44. Count XVI is a breach of contract claim directed at Impact and Catledge. Id at 44-46.FM FN7. No party to this action has filed a Mo- tion to Dismiss with respect to Count XVI. 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2013 WL 5435780 (S.D.Fla.) (Cite as: 2013 WL 5435780 (S.D.Fla.)) IL STANDARD OF REVIEW A. Motion to Dismiss A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. See Milburn v. United States, 734 F.2d 762, 765 (1 lth Cir. 1984). On a motion to dismiss, the Court must accept the factual allegations as true and construe the complaint in the light most favorable to the plaintiff. See SEC v. FSM Grp., Ina, 835 F.2d 270, 272 (11th Cir.1988). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face., "Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "But where the well -pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id at 679 (citations omitted). A complaint must contain enough facts to indicate the presence of the required elements. See Watts v. Fla. Intl Univ., 495 F.3d 1289, 1302 (1 Ith Cir.2007). However, "[a) pleading that offers ... 'a formulaic recitation of elements of a cause of action will not do.' " Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "[C]onclasory allegations, unwarranted de- ductions of fact or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002). B. Specific Law at Issue "3 The litigation privilege provides absolute immunity for all actions taken during judicial pro- Page 3 ceedings which are related to those proceed- ings. LaMm Investments, LLC v. Holland & Knight, LLP, 88 So.3d 240, 242 (Fla.Dist.Ct.App.2011). The purpose of the privilege is to preserve candid and unrestrained communications during judicial pro- ceedings. Id. The privilege is properly raised at the Motion to Dismiss stage when the applicability of the privilege is discernible from the face of the complaint. Id at 245. The elements of an action for abuse of process consist of"1) an illegal, improper, or perverted use of process by the defendant; 2) an ulterior motive or purpose in exercising the illegal, improper, or per- verted process; and 3) damages to the plaintiff as a result." Antoine v. State Farm Mut. Auto. Ins. Co., 662 F.Supp.2d 1318, 1324 (M.D.Fla.2009). The litigation privilege is applicable to claims for abuse of process. LatAm, 88 So.3d at 242. The elements of a cause of action for malicious prosecution consist of 1) an original civil or criminal judicial proceeding against the present plaintiff was commenced or continued; 2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; 3) the termination of the original proceeding con- stituted a bona fide termination of that proceeding in favor of the present plaintiff; 4) there was an ab- sence of probable cause for the original proceeding; 5) there was malice on the part of the present de- fendant; and 6) the present plaintiff suffered dam- ages as a result of the original proceeding. Antoine, 662 F.Supp.2d at 1320. Probable cause "is defined as a reasonable ground of suspicion ... to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Fee, Parker & Loyd, P.A. v. Sullivan, 379 So.2d 412, 417 (Fla.Dist.CLApp.1980) ("one need not 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Slip Copy, 2013 WL 5435780 (S.D.Fla.) (Cite as: 2013 WL 5435780 (S.D.Fla.)) be certain of the outcome of a criminal or civil pro- ceeding to have probable cause for instituting such an action") (citations and internal quotation marks omit- ted). III. ANALYSIS A. Abuse of Process Defendants argue that their actions in the Gold Litigation are protected by the litigation privilege, thereby precluding Plaintiffs' claims for abuse of process. See Piloto Mot., at 10. Plaintiffs dispute the applicability of the litigation privilege, arguing that Defendants' actions took place out of the context of judicial proceedings, pointing to Defendants' actions in the Dominican Republic and Turks and Caicos Islands. Piloto Resp., at 15-17. Plaintiffs also point to a "malicious public relations campaign ..." waged by Defendants consisting of emails, press releases, and web content. Id, at 17. Fm FN8. Plaintiffs argue more generally that the litigation privilege is inapplicable here be- cause Defendants "intentionally used the le- gal process as a tactical weapon to extort and financially cripple the Elliots ..." and because the underlying litigation was a "sham." Piloto Resp., at 7, 17-18. This Court finds that Plaintiffs' arguments in this regard lack merit. Defendants contend that the actions in the foreign tribunals were judicial proceedings and that the priv- ilege is applicable to these proceedings. Piloto Reply, at 4. Defendants also argue that the press matters are not actionable because they did not constitute legal process. Id at 5. Rather, Defendants argue, Plaintiffs' arguments as to these materials would be better situ- ated to a claim for libel. Id This Court finds that the litigation privilege is applicable in this instance and that Plaintiffs' claims to the contrary lack merit. Page 4 Plaintiffs' claims pertain to actions taken during the Gold Litigation which are related to those proceed- ings. See LaMm, 88 So.3d at 242. Therefore, De- fendants' claims for abuse of process are not actiona- ble. See idrN9 FN9. Defendants have also raised a statute of limitations defense as to the abuse of process claims. Piloto Mot., at 14-16; Diaz Mot., at 13-14. As this Court finds for Defendants as to these claims, it is not necessary for this Court to address this argument. B. Malicious Prosecution "4 Defendants argue that Plaintiffs' malicious prosecution claims lack merit as the Gold Plaintiffs had probable cause to litigate against the Gold De- fendants. Piloto Mot., at 12; Fee. Parker & Loyd, 379 So.2d at 417. Defendants point to the substantial in- vestor losses and the criminal referral by Judge Gold as evidence of probable cause. Piloto Mot., at 12. Plaintiffs contend that Defendants lacked probable cause, pointing out that Cadedge and Impact were not initially defendants in the Gold Litigation. Piloto Resp., at 13. Defendants contend that the initial status of Catledge and Impact is irrelevant to the question of probable cause. Piloto Reply, at 7. This Court agrees with Defendants.FN1e A review of the record demon- strates that Defendants had ample probable cause to bring the underlying litigation based on the evidence of a fraudulent scheme.FNI FN10. The Parties disagree as to whether the litigation privilege bars a claim for mali- cious prosecution. Piloto Reply, at I; Surre- ply, at'I-3. As this Court finds that the ma- licious prosecution claims lack merit, it is not necessary for this Court to address this ar- gument. FN 11. As Plaintiffs' abuse of process and malicious prosecution claims have failed, 0 2014 Thomson Reuters. No Claim to Grig. US Gov. Works. Slip Copy, 2013 WL 5435780 (S.D.FIa.) (Cite as: 2013 WL 5435780 (S.D.Fla.)) Plaintiffs' claim for civil conspiracy must also fail. There is no actionable conspiracy claim absent an underlying wrong. See Palm Beach Cnty. Health Care Dist. v. Profes- sional Medical Edaa, Inc., 13 So.3d 1090, 1096 (Fla.Dist.Ct.App.2009). Here there is no underlying wrong as this Court has estab- lished that the underlying claims at issue fail on the merits. See Piloto Mot., at 16. IV. CONCLUSION For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants' Motions to Dismiss (ECF Nos. 18 and 19) are GRANTED. Counts I—XV of Plaintiffs' Complaint are DISMISSED WITH PREJUDICE. The Clerk of Court is instructed to CLOSE this Case with respect to De- fendants Michael Diaz, Diaz Reus & Targ, LLP, Hilda Pilato, Amstein & Lehr, LLP, David Rocheford, Richard Smith, Klaus Hofman, and John Steve Thompson. Plaintiffs' Complaint is otherwise unaf- fected by this Order. This action remains pending with respect to Count XVI and Defendants James B. Cart- ledge and Impact, Inc. DONE AND ORDERED. S.D.Fla.,2013. EMI Sun Village, Inc. v. Catledge Slip Copy, 2013 WL 5435780 (S.D.Fla.) END OF DOCUMENT C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 Gulf Stream legal action - Robert Sweetapple https://msI I-eden.e2engine.net/owa/#viewmodel=ReadMessageltem&... Gulf Stream legal action Scott Morgan <scottmorgan75@gmai1.com> Sat 10/25/201412:07 PM To:grichman@richmangreeccom<grichman@dchmangreeccom>;joconnor@jonesfosteccom <joconnor@jonesfosteccom>; Robert Sweetapple<rsweetapple@sweetapplelaw.com>; If the three of you are available on Tuesday or Wednesday, I think we should meet to discuss everyone's thoughts on the type of actions to be fled against O'Boyle and O'Hare. There are arguments to be made for federal vs. state court RICO as well as for a separate conspiracy to abuse process action. I would like to have a consensus on moving forward. Let me know if Tues or Wed works for you. Scott I of 1 7/5/2016 10:25 AM Renee Basel From: Gerald F. Richman <GRichman@richmangreer.com> Sent: Tuesday, December 23, 2014 2:05 PM To: Robert Sweetapple;joconnor@jonesfoster.com Cc: Leora B. Freire Subject: FW: Attachments: CLASS ACTION COMPLAINT-6550126.docx Just received this and have not yet reviewed it. I have not forwarded it to Scott for obvious reasons since it is a work in progress and we certainly do not want to face any public records request issues.... Gerald F. Richman / Board Certified in Civil Trial Law and Business Litigation by The Florida Bar/Shareholder Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office: 561.803.3500 Fax: 561.820.1608 Direct: 561.803.3516 Email: GRichman@richmangreer.com V -card www.RichmanGreer.com U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient. you received this in error. 11 so, any recic%�. dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.. From: Eric M. Sodhi Sent: Tuesday, December 23, 2014 1:46 PM To: Gerald F. Richman; Dottie Costonis; Leora B. Freire; Maria Ramirez Subject: Gerry, Attached is the revised draft of the Class Action RICO complaint. As you can see, I have included as damages attorneys' fees spent on litigating the frivolous lawsuits. The authority for seeking attorneys' fees as RICO damages originates (and is pretty much isolated) to the Second Circuit. I do have cases out of one or two other circuits that allow it (i.e. the Ninth) but the Second is clearly the trailblazer here. As you previously noted, it comes down to causation—did the predicate acts or RICO acts cause the attorneys fees to be incurred? I think we have a good argument. I have also included a lot more on the extortion. The threat of lawsuits can be found to be extortion in certain limited circumstances: i.e.—when the lawsuits threatened or brought bear no relationship to the lawsuit in which the threat is made. There is a case out of the 11th that is strong for the proposition that under no circumstances can the threat of litigation constitute the criminal act of extortion (U.S. v. Pendergraft, 297 F.3d 1198); however, after suggesting that as a matter of law the threat of litigation cannot constitute extortion under the Hobbes Act, it then intentionally limits its holding to the facts of the case which gives us wiggle room. The Kraus case that was passed around at the last meeting actually allows the extortion claims to go forward—so there is authority to allow the threat of litigation to constitute the predicate act of extortion. Finally, I have added a claim for abuse of process. The Third DCA has held that the cause of action is not displaced by the litigation privilege as set forth by the Supreme Court in Levin and Echevarria (see LatAm Invs., LLC v. Holland & Knight, LLP, 88 So.3d 240; Wolfe v. Foreman, 128 So.3d 67); however, must relate to acts either filed before the litigation commences or after suit has been filed but unrelated to the suit. The Federal Courts do apply Florida's litigation privilege in knocking out abuse of process claims; however do follow the Third DCA in allowing claims based on action taken outside of a judicial proceeding. (See Davidson v. Capital One, 2014 WL 3767677 (S.D.Fla. 2014); EMI Sun Village, Inc. v. Catledge, 2013 WL 5435780 (S.D.Fla. 2013). I believe we should all make comments to this draft and have a meeting to flesh out some of the missing facts—we must be factually specific on the predicate acts (what mail and wire fraud and what acts of extortion) including the who, what, where, why, and when for every such act. The more acts we can put in the complaint, the better. I am back in the office on Tuesday, December 29 so let me know what time/day you come back and we can schedule a meeting. Thanks Gerry, and have a Happy Holiday. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION Case No.: TOWN OF GULF STREAM, a municipality organized and existing under the laws of Florida on its own CLASS ACTION behalf and on behalf of those municipalities similarly situated, and WANTMAN GROUP, INC., a domestic company on its own behalf and on behalf of those companies similarly situated, Plaintiffs, VS. MARTIN E. O'BOYLE, and individual, CHRISTOPHER O'HARE, and individual, WILLIAM RING, an individual, JONATHAN R. O'BOYLE, an individual, DENISE DEMARTINI, and individual, PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS, LLC, STOPDIRTYGOVERNMENT, LLC, and COMMERCE GROUP, INC. and THE O'BOYLE LAW FIRM, P.C., INC., Defendants. CLASS ACTION COMPLAINT I. Introduction. 1. The TOWN OF GULF STREAM ("Gulf Stream") brings this lawsuit as a class action by and on behalf of state and local municipalities, municipal agencies, and their private contractors, located in the state of Florida that have been victimized by a scheme to defraud and extort being carried out by a RICO enterprise created by and comprised of the Defendants. Through their RICO enterprise, the Defendants have associated with the sole purpose of unlawfully and illegally extracting settlement payments from the class members by first using the mails and the wires to deliver and advance a frivolous public records request that is intentionally inconspicuous. Then, the Defendants, through their RICO enterprise, immediately use the mails and the wires to demand that these municipal entities and agencies immediately settle with it and pay its allegedly incurred attorneys' fees and costs as provided for in the public records statute or face protracted litigation and a flurry of additional frivolous public records request and lawsuits. The amount demanded by the Defendants to reimburse it for its attorneys' fees and costs is fraudulent—far exceeding the actual costs and fees incurred in the frivolous public records request, resulting in a profit windfall for the Defendants. 2. The Defendants are prolific in their efforts—from March 5, 2013 through July 17, 2013, the RICO enterprise filed over 400 public records request with Gulf Stream alone. From August of 2013 through April of 2014, the RICO enterprise filed at least another 600 public records request. For purposes of context—Gulf Stream is a small community, having a population of 928 residents and only 16 full time employees with a land mass of less than one square mile. 3. The Defendants also target private entities that have contracted with municipalities and are therefore subject to the public records laws of Florida. Wantman Group, Inc. brings this lawsuit as a class action on behalf of itself and other private entities that have been victimized by Defendants' scheme to defraud. 4. [insert paragraph on engineering firm] II. Jurisdictional Allegations. I 5. As this is an action brought under 18 U.S.C. §§ 1961, 1962 and 1964, this Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331. Additionally, this Court has original jurisdiction over the subject matter of this action pursuant to 18 U.S.C. §§ 1964 (a) -(c). This Court has supplemental subject matter jurisdiction over Plaintiffs' state law claims under 28 U.S.C. § 1367(a) because they are so related to the RICO claims as to form part of the same case and controversy. Finally, this Court has personal jurisdiction over the Defendants pursuant to 18 U.S.C. § 1965. 6. Venue is appropriate in this district pursuant to 18 U.S.C. § 1965(a) as well as 28 U.S.C. § 1391(b)(1) and (2), as the Defendants reside in this district and a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this district. I11. Parties. 7. Plaintiff, TOWN OF GULF STREAM, is a municipality organized and existing under the laws of the State of Florida. S. Plaintiff, WANTMAN GROUP, INC., is a Florida corporation, which maintains its principal place of business at 2035 Vista Pkwy, Suite 100, West Palm Beach, Florida, 33411 in Palm Beach County, Florida. 9. Defendant MARTIN E. O'BOYLE, is a resident of Florida, residing in Palm Beach County. Martin O'Boyle is also: (i) the President and owner of Defendant Commerce Group, Inc.; (ii) the sole member of Defendant Stopdirtygovernment, LLC; (iii) the sole member of Defendant Our Public Records, LLC; and (iv) a director of Defendant Public Awareness Institute, Incorporated. 10. Defendant WILLIAM F. RING ("Ring") is an attorney licensed to practice law in the state of Florida, and upon information and belief, is practicing with, and is a partner or Q shareholder of, Defendant The O'Boyle Law Firm, P.C., hic., as well as its registered agent. Ring is also: (i) Vice-president of Defendant Commerce Group, Inc.; (ii) the founding President of Defendant Citizens Awareness Foundation, Inc., (iii) and the registered agent for Defendants Our Public Records, LLC, and Stopdirtygovernment, LLC. 11. Defendant CHRISTOPHER O'HARE ("O'Hare") is a resident of Florida, residing in Palm Beach County. O'Hare is also a client of Defendant The O'Boyle Law Firm, P.C., Inc.. 12. Defendant JONATHAN R. O'BOYLE is a resident of Florida, residing in Palm Beach County, and is an attorney that is not licensed to practice law in Florida; however, is the founding principal of Defendant The O'Boyle Law Firm, P.C., Inc. and currently its President, sole director and manager. Jonathan O'Boyle is the son of Defendant Martin O'Boyle, and is also a director of Defendant Public Awareness Institute, Incorporated. 13. Defendant DENISE DEMARTINI ("Demartini") is a resident of Florida, residing in Palm Beach County. Demartini is also; (i) an employee of Defendant Commerce Group, Inc.; and (ii) the current President and director of Defendant Citizens Awareness Foundation, Inc. 14. Defendant COMMERCE GROUP, INC. ("Commerce Group") is a Florida Corporation with its principal place of business located at 1280 W Newport Center Dr., Deerfield Beach, Florida 33442. Commerce Group is run by Martin O'Boyle. 15. Defendant CITIZENS AWARENESS FOUNDATION, INC. ("CAFI"), purports to be a Florida non-profit corporation, with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 11 16. Defendant STOPDIRTYGOVERNMENT, LLC, ("Stopdirtygovemment") is a Florida limited liability company with its sole member being Martin O'Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 17. Defendant OUR PUBLIC RECORDS, LLC, ("OPR") is a Florida limited liability company with its sole member being Martin O'Boyle, and its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. 18. Defendant PUBLIC AWARENESS INSTITUTE, INCORPORATED ("PAI") purports to be a Florida non-profit corporation with its principal place of business located at 1280 West Newport Center Drive, Deerfield Beach, Florida 33442. Defendants Martin O'Boyle and Jonathan O'Boyle, along with their family member Sheila O'Boyle (wife of Martin and mother of Jonathan) are the directors of PAI. 19. Defendant, THE O'BOYLE LAW FIRM, P.C., INC., ("O'Boyle Firm"), is a foreign corporation, a law firm, having its principal address located at 1001 Broad Street, Johnstown, Pennsylvania. Defendant Jonathan O'Boyle is the sole officer and director of the O'Boyle Firm, but, is not licensed to practice law in the state of Florida. IV. Appropriateness of Class Action Treatment. 20. Plaintiffs bring this action on behalf of themselves and all others similarly situated pursuant to Fed. R. Civ. P. 23(b)(3). This action satisfies the numerosity, commonality, typicality, adequacy, predominance and superiority requirements of Rule 23. 21. The proposed Class is defined as: All state or local municipalities, municipal agencies, or private contractors in the State of Florida who have been served with a public records request by any of the Defendants and which either (a) paid a settlement amount in conjunction with, or to resolve, the public records request; or (b) which incurred attorneys' fees and costs to resolve public records requests from any of the defendants. Fi 22. Excluded from the Class are the Defendants, their parents, subsidiaries, affiliates, officers and directors, any entity in which any of the Defendants has a controlling interest, all municipalities, municipal agencies, or private municipal contractors, who make a timely selection to be excluded, all judges assigned to hear any aspect of this litigation, as well as their immediate family members, and any of the foregoing's legal heirs and assigns. 23. Plaintiffs reserve the right to modify or amend the definition of the proposed Class before the Court determines whether certification is appropriate. 24. Plaintiffs do not currently know the exact number of Class Members or their identities. However, Plaintiffs believe that Class Members number in the hundreds, and are thus sufficiently numerous and geographically dispersed so that joinder of all Class Members is impracticable. Attached hereto as part of Exhibit "A" is a chart listing the current known potential class members, along with the amount of their proposed claim. Plaintiffs further believe that each Class Member, including themselves, have claims with a common origin and share a common basis. The claims of all Class Members, as well as the Plaintiffs, originate from the Defendants' pattern of racketeering and use of an enterprise to carry out such conduct. 25. The claims of the Plaintiffs are typical of the Class, in that Plaintiffs, like all Class Members, were injured in their business or property by reason of the Defendants' pattern of racketeering activity carried out by the RICO Enterprise, including the predicate acts of mail and wire fraud, and extortion. 26. The RICO Enterprise created by the Defendants used the mail and the wires to send out an inconspicuous and frivolous public records request to the Class Members, often times under the guise of a false non-profit organization, and with a stated or implied purpose of advancing the public's interest in government transparency. In reality, this bogus public record P request was an essential first -step of the RICO Enterprises' scheme to defraud and extort money from the class members—it was nothing more than bait, a records request for records that the RICO Enterprise had no intention of reviewing, and instead, intended to be overlooked or missed by the receiving class member so as to trigger the next step in the RICO Enterprises' scheme. 27. After the bogus records request was sent and hopefully overlooked, the RICO Enterprise would then use the mail and the wires to demand a settlement of the records request in excess of the actual attorneys' fees and costs incurred by the Defendants, coupled with a threat of harm to property in the form of more bogus records requests, to be followed up with even more frivolous litigation. 28. This racketeering conduct damaged and injured the class members in three ways: (i) by requiring additional expenditures by the class members (i.e. hiring additional staff, paying overtime, etc.) to review and respond to the massive volume of bogus records requests; (ii) by coercing and extrapolating an inflated settlement amount from the class member to "make this go away,'; and (iii) by requiring the class member to defend against tens, if not hundreds, of spurious lawsuits brought only to increase the pressure and ultimately force the class member to accept the extorted settlement amount. 29. Pursuant to Rule 23(b)(3), there are numerous questions of law and fact common to the Class and those common questions predominate over any questions affecting only individual Class Members, including whether Defendants: a. are associated, organized and acting as an enterprise with the purpose of carrying out a scheme to defraud and extort; b. devised, followed, and actively pursued a scheme to defraud and extort, and what the scheme to defraud and extort consisted of, including; 7 i. manipulation of the public records laws of Florida for financial gain, including the filing of frivolous, meaningless, and inconspicuous public records request with no real need or intention to ever review or obtain the public records, but rather, simply set the stage for the next step in the scheme to defraud and extort; ii. advance fraudulent and inflated settlement demands as a matter of practice, policy, and pattern, which include a substantial profit margin for the so-called "non -profits;" iii. as a matter of practice, policy, and pattern, extort compliance with the fraudulent and inflated settlement demands by threatening scores of additional frivolous public records requests to be followed by scores of additional fraudulent and inflated settlement demands with the sole intended consequence of the class members having to spend scarce resources on responding to the bogus public records request and defending the frivolous litigation; iv. set up false and fraudulent companies, both non-profit and profit, in furtherance of the scheme to defraud, and using the mails and wires to incorporate, indoctrinate, or otherwise create these bogus companies in the State of Florida; c. have engaged in conduct that constitutes a pattern of racketeering activity in furtherance of their scheme to defraud and extort; d. committed the predicate criminal acts of mail fraud, wire fraud, or extortion in furtherance of their scheme to defraud and extort; e. engaged in an illegal, improper, or perverted use of process in carrying out the scheme to defraud and extort; and f. possessed an ulterior motive or purpose in exercising the illegal, improper, or perverted process. 30. Additionally, another common question of law and fact is the appropriate measure of damages sustained by Plaintiffs and other Class Members. 31. A class action is superior to other methods for the fair and efficient adjudication of this controversy. Treatment as a class action will permit a large number of similarly situated persons to adjudicate their common claims in a single forum simultaneously, effectively, and without the duplication of effort and expense, and risk of inconsistent rulings that numerous individual actions would cause. Class treatment will also permit the adjudication of relatively small claims by Class Members who otherwise might not be able to afford to litigate their claims individually. This class action presents no difficulties in management that would preclude maintenance as a class action. 32. This forum is particularly desirable for the prosecution of this class action because Defendants all are residents in, or maintain a principal place of business in, this district, and presumably maintain many of those corporate records which are particularly germane to this action here. As a result of the foregoing, litigating on a class action basis in this forum will likely decrease the cost of discovery and prosecution, generally. 33. Plaintiffs have suffered the harm alleged on behalf of the Class, and have no interests antagonistic to the interests of any other Class Members. They are committed to the prosecution of this action and have retained counsel experienced in the prosecution of class actions, and in complex commercial actions in particular. Accordingly, Plaintiffs are adequate 0 representatives and will fairly and adequately protect the interests of the Class. Plaintiffs are not aware of any other pending litigation concerning this controversy that involves Class Members, other than the individual cases brought by Defendants to enforce the frivolous and fraudulent public records requests. 34. Finally, the Class is readily definable. V. General Allegations. a. Florida Public Records Law 35. Pursuant to Chapter 119, Florida Statutes, commonly referred to as the Sunshine law, the legislature has determined that: "It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency." 36. Florida prides itself on the transparency required of its elected officials, and its elected officials often pride themselves on providing such transparency to those that have elected them to serve. 37. Accordingly, pursuant to section 119.07, all qualifying entities: "shall permit the record(s) to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions...." In furtherance of this transparency, "a custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees whether such a record exists and, if so, the location at which the record can be accessed." 38. Chapter 119 also extends the transparency requirement, as well as an obligation to respond to public records request, to a "contractor," defined as "an individual, partnership, 10 corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency...." See section 119.0701. 39. In addition to criminal penalties, public officers (or "contractors") are subject to prevailing party attorneys' fees in civil court upon a showing of "unlawful refus[al] to permit a public record to be inspected or copied..." Notably, this prevailing party fee provision is one- sided and can only be invoked by the party making the public records request, and not the agency or contractor responding to the request. 40. It is this threat of prevailing party attorneys' fees that is the nucleus around which the Defendants created their scheme to defraud and extort, and organized their RICO enterprise to carry out that scheme. a. The Origins of the Scheme to Defraud and Extort. 41. Before and during January 2014, Martin O'Boyle and his son, Jonathan O'Boyle, met for the purposes of developing a scheme to defraud and extort whereby they would form one or more contrived not-for-profit corporations. The purpose of the not-for-profit corporations would be to file thousands of public records request with municipalities, government entities and state contractors throughout the State of Florida. Of course, Martin O'Boyle and Jonathan O'Boyle could care less about the documents that were or would be requested—these documents were probably never read but instead simply tossed in the garbage. What Martin O'Boyle and Jonathan O'Boyle were really interested in was trying to cause the recipient of the public records request to overlook the request and then slap the recipient with a lawsuit or pre -suit settlement demand for an amount far in excess of their costs and fees and from which they would pocket a generous profit. 42. Prior to this, Martin O'Boyle already had an extensive history filing public requests in New Jersey, Florida and elsewhere. Martin O'Boyle previously used the public records request process in abusive fashion to file thousands of requests and to file vexatious and frivolous lawsuits to cripple local governments into granting his development plans and other demands. 43. By way of example, in the case of Martin E. O'Boyle v. Peter Isen, 2014 WL 340104 (N.J.Super.A.D.)1, the Superior Court of New Jersey, Appellate Division, noted: From September 2007 through early July 2008, plaintiff [Martin O'Boyle] and members of his family filed multiple requests pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Longport's only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, the clerk went to the emergency room because of the stress she attributed to the flood of OPRA requests. And, in February 2008, the Borough's solicitor notified plaintiff that it would not accept any additional OPRA requests he filed, explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Longport bad received 190 requests on October 16 and 17 and thirty filed October 31, 2007. 44. Similarly, when his daughter was being prosecuted for driving under the influence in Palm Beach County, Florida, Martin O'Boyle inundated the Palm Beach County State Attorney's Office both individually and through some of the other Defendants with over 1,300 requests for public records. 45. In January of 2014, both Martin O'Boyle and Jonathan O'Boyle realized that they could use the Sunshine Act, not just to frustrate the workings of city governments, but also to generate an ill -gained profit for themselves. Thus, no longer was Martin O'Boyle's purpose to 1 In the Isen case, Martin O'Boyle sued a resident of Longport for claiming Martin O'Boyle was "the enemy of Longport". The suit for defamation was dismissed by summary judgment and affirmed by the appellate court. 12 torment local governments, bullying them into caving to his demands, but now, the purpose was to make money. 46. Accordingly, and despite the fact that Jonathan O'Boyle was not a Florida lawyer, he opened and ran the O'Boyle Law Firm, as a foreign profit corporation on February 10, 2014. This law firm was opened and operated from his father's corporate offices of the Commerce Group Inc., (hereinafter referred to as "Commerce Group") located in Deerfield Beach Florida. Both MO and Commerce Group financed all activities of the O'Boyle Firm. 47. Now that they had the law firm in place, Martin O'Boyle, Jonathan O'Boyle, and the O'Boyle firm required "clients" —pre -textual plaintiffs that they could use in sending out frivolous and fraudulent public records requests and accompanying lawsuits. Accordingly, Martin O'Boyle and Jonathan O'Boyle, along with Ring and Demartini, decided to form several not-for-profit entities as a front to make public records requests and create litigation for the O'Boyle Law Firm which then could be used to either defraud or extort defendants into paying inflated settlement amounts and line their pockets with the proceeds derived therefrom. 48. But, Martin O'Boyle and Jonathan O'Boyle knew that they could not, on its face, own and control the non-profit they now intended to create as well as the law firm to which all of the so-called "clients" would be referred. So, to further wrap their scheme to defraud and extort in a shroud of legitimacy, they needed someone who is familiar with government transparency— someone that truly believes in the cause, and is not in it for the ill -gained profit. They found that someone in Joel Chandler. b. Joel Chandler is Used to Lend Legitimacy To the Scheme To Defraud and Extort. 49. In January 2014 Martin O'Boyle and Jonathan O'Boyle contacted Joel Chandler (hereinafter referred to as "Chandler"). At the time Chandler had been working as a self - 13 employed civil rights and public information activist. Chandler had considerable experience in making public records requests and in public records request litigation throughout the State of Florida and had garnered a reputation as being a legitimate government transparency advocate. Chandler was invited to the O'Boyle home in Gulf Stream, Florida where both Martin and Jonathan O'Boyle resided. At the initial meetings Chandler and the O'Boyles discussed the soon to be created Florida O'Boyle Law Firm's capacity for handling public records request litigation throughout the state. 50. As a result of the meetings, Martin O'Boyle incorporated an alleged not-for-profit entity by the name of Citizens Awareness Foundation, Inc., (hereinafter referred to as "CAFI). Now, Martin O'Boyle was funding not only the O'Boyle Law Firm, but also a feeder organization—CAFI. [need facts on other corporate defendants] 51. Martin O'Boyle, on his own and through his other entities, then provided actual cash to CAFI and the O'Boyle Law Firm as well as other consideration such as free rent, use of employees, and vehicles. To do this, Martin O'Boyle used both his own personal assets, and the assets of his business, Commerce Group. 52. Martin O'Boyle caused the entity, CAFI, to be incorporated in Florida and directed that his three close business associates, William Ring, Denise DeMartini, and Brenda Russell be named as the board of directors. 53. Martin O'Boyle also agreed with Chandler that he would hire Chandler to serve as the Executive Director of CAFI at a six -figure salary as well as substantial benefits. Chandler was excited to now be able to advance his cause, government transparency, and earn a substantial living in doing so. Chandler's actual duty was to travel the state making hundreds of public records requests to public entities and state contractors. Thereafter, any evidence that 14 would serve as a pretext for a lawsuit was to be forwarded immediately to Jonathan O'Boyle for the filing of litigation. Both CAFI and the O'Boyle Law Firm were operating from a room located in Commerce Group's offices. 54. Prior to meeting the O'Boyle's, Chandler had earned approximately $5,000.00 during the year 2013. Upon opening the alleged foundation, Martin O'Boyle agreed to pay Chandler $120,000.00 per year and to provide him with a car to drive around the state to make public records requests. Martin O'Boyle advised Chandler that he would entirely fund the foundation and law firm on an unlimited basis including the payment of all court filing fees. Of course, unbeknownst to Chandler, both Martin O'Boyle and Jonathan O'Boyle were also going to require that all of CAFI's clients be represented by the O'Boyle Law Firm, that Chandler would not have exclusive control over whether a claim is settled and for how much, and that the O'Boyle Law Finn, CAFI, Martin O'Boyle and Jonathan O'Boyle intended to obtain fraudulent settlements from unwitting defendants by claiming their fees and costs are an amount far in excess of what they actually were. 55. On January 27, 2014, Chandler was hired to act as Executive Director and CAFI was incorporated. No board meetings were called or occurred. Instead, Martin O'Boyle undertook to direct the foundation, along with his operatives that he placed on the board—Ring and Demartini. 56. As instructed, and in furtherance of the scheme to defraud and extort, Chandler began creating public records requests and legal claims and referred these to the alleged O'Boyle law firm. 57. In March 2014, Chandler suggested that one lawsuit, CAFI v. Barnes & Noble College Bookstore, be referred to the Thomas & LoCicero law firm in Tampa for tiling. 15 Chandler was directed by Ring and Demartini that all public record request lawsuits by the foundation must be referred to the O'Boyle Law Firm for filing. c. Chandler Realizes He is Being Duped. 58. Towards the end of March and in early April 2014, Chandler learned that William Ring and Martin O'Boyle were making public records requests directed to the Town Of Gulf Stream, allegedly at the behest of CAFI, without his knowledge or consent. 59. In April 2014, when Chandler inquired as to why he was not informed about all lawsuits filed by CAFI, the organization over which he was the executive director, Demartini explained to Chandler that she was Martin O'Boyle's key employee and the director on the board of CAFI, to whom Chandler was to report. DeMartini further explained that she would be directing the flow of litigation to the O'Boyle Law Firm and that she would be calling the shots. 60. Also during April, DeMartini advised Chandler that Martin O'Boyle had approved the CAFI mission statement. DeMartini, a non -lawyer, attended law firm meetings with Chandler and participated in reviews of all client matters, not just CAFI cases. She made personnel decisions for the O'Boyle Law Firm and managed the alleged law firm's finances while claiming to be a board member of CAFI. 61. During April 2014 DeMartini demanded that Chandler produce a minimum quota of 25 new lawsuits a week for the alleged O'Boyle law firm to file. 62. During this time Chandler also learned from an attorney at the O'Boyle Law Firm that Jonathan O'Boyle had been drafting lawsuits and filing them under the attorney's name without the attorney's knowledge or consent. Chandler was informed that this was done on more than one occasion and that Jonathan O'Boyle directed lawyers in the firm on settlement strategies. 16 63. In May 2014 DeMartini notified Chandler that she had full access to all of the O'Boyle Law Firm's internal records and client files. She shared all client reports with Chandler, not just reports concerning CAFI. 64. Based upon Chandler's learning that public records requests were being filed in the name of the foundation without his knowledge, Chandler again directed that all public records requests on behalf of CAFI be made by himself, or at the very least, that he be advised they are being made. 65. On May 16, 2014 DeMartini asked Chandler for a recap of the number of cases that were referred by the foundation to the O'Boyle Law Firm during January through May. DeMartini expressed her frustration to Chandler that he has only generated 211 cases in the 12 weeks since CAFI was created. 66. During May 2014 Chandler learned that the O'Boyle Law Firm had no written fee agreements or engagement letters between the O'Boyle Law Firm and CAFI. 67. At the end of May 2014, DeMartini repeatedly requested that Chandler prepare verified complaint forms to be used by the O'Boyle Law Firm in public records request litigation. She specifically requested a template that could be used by the O'Boyle Law Firm. Chandler refused to comply with this demand. 68. By the end of May, DeMartini and Jonathan O'Boyle continued to express their frustration to Chandler. Chandler insisted on reviewing and verifying all lawsuits to be filed by the foundation. DeMartini and O'Boyle expressed concern that Chandler's review was slowing down the flow of litigation generated by the firm. 69. By this point it had become abundantly clear to Chandler that DeMartini, Ring and O'Boyle were only concerned with the volume of cases that could be generated, and of 17 course the profits that could be had in such cases by way of fraudulent settlement demands, rather than any public service. Chandler's repeated attempts to inform Ring and DeMartini of opportunities to work with civil rights groups, public agencies, student groups and journalists on open government issues were completely ignored. 70. In June 2014 it came full circle. Chandler learned that Martin O'Boyle, Jonathan O'Boyle, the O'Boyle Firm, Commerce Group, CAFI, Ring, and DeMartini [add other defendants] were operating an enterprise that was engaged in a scheme to defraud and extort the defendants in the hundreds if not thousands of public records requests that were made. 71. The scheme involved the firm demanding monetary settlements on behalf of CAFI far beyond the actual attorneys' fees and expenses incurred and contemplated in F.S. § 119.12 and to keep all of the proceeds including the "windfall". If the demands were not met, then the scheme called for intimidation via threat of additional bogus public records requests and frivolous litigation. 72. On June 30, 2014 Chandler arrived at the Commerce Group/CAFI/O'Boyle Law Firm office and presented his letter of resignation to Ring. Immediately thereafter Martin O'Boyle demanded that Chandler retract his email confirming Jonathan O'Boyle's complicity in the scheme to defraud and extort. Martin O'Boyle threatened Chandler that if he did not retract his email concerning Jonathan O'Boyle's involvement in the "windfall" scheme, Chandler would "force us to respond by making your life very unpleasant". Thereafter Chandler refused to retract the emails and Martin O'Boyle repeated his threats several times. 73. [insert facts on other defendants] d. How the scheme operates: the Example of Gulf Stream. e. How the scheme operates: the example of Wantman Group. IU 74. This fraudulent and scheme has directly injured the Class members as well as the Plaintiffs. To date, it is believed that the following putative members have been injured in the amounts set forth on Exhibit "A." 75. Based on the foregoing, Plaintiffs and Class Members were induced to pay $ based on Defendants' fraudulent claims, backed -up by Defendant's extortion and threats. VI. COUNT I—Violation of 18 U.S.C. § 1964(a) and (c). 76. Plaintiffs' adopt and incorporate by reference paragraphs 1 through — above as though fully set forth herein. 77. Plaintiffs' seek relief under 18 U.S.C. § 1964(a) of RICO to prevent and restrain Defendants from committing future violations of section 1962, including, but not limited to, ordering the Defendants to divest themselves of their interest in the enterprise; impose reasonable restrictions on the future activities or investments of the Defendants to ensure engagement in a similar endeavor as described herein; and order dissolution of all corporate defendants. 78. Plaintiffs also seek relief under 18 U.S.C. § 1964(c) of RICO, and seek threefold the damages sustained by the Plaintiffs and the Class Members, along with costs of this suit, including a reasonable attorney fee. 79. The Plaintiffs, and each Class Member that Plaintiffs represent are persons within the meaning of 18 U.S.C. § 1964(c) and § 1961(3). 80. 18 U.S.C. § 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through 19 a pattern of racketeering activity." Through § 1964(c), "any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States District Court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee...... Because the Plaintiffs, along with the Class Members were injured in their business or property by Defendants violation of 1962, they are entitled to threefold their damages, attorneys' fees and costs. a. The Enterprise. 81. The Defendants, through themselves and through their employees and agents, formed a union and association -in -fact enterprise that engages in, and the activities of which affect, interstate commerce. This enterprise has as its goal, a scheme to defraud and intimidate through acts of extortion, municipalities, municipal agencies, private contractors of municipalities and anyone else subject to the Sunshine Law, into paying inflated and fraudulent settlement amounts so as to increase profits to the enterprise. 82. Every Defendant had a role or position in the enterprise, all of which worked together towards the common goal of defrauding or extorting municipalities, municipal agencies, private contractors of municipalities and anyone else subject to the Sunshine Law. The Defendants' role and its importance to the enterprise, as well as how it advanced the interest of the enterprise is as follows: a. Martin O'Boyle: Martin O'Boyle is one of the engineers of the enterprise's scheme to defraud, as well as its principal financier through his various business entities. Martin O'Boyle directs the enterprise, and is responsible for the following actions taken to advance the goal of the enterprise: 20 i. Financing the opening and continued existence of the O'Boyle Law Firm, along with his son, Jonathon O'Boyle; ii. Financing the opening and continued existence of CAFI; iii. Directing the operations of CAR through his appointed directors and key employees of his other business entities such as Commerce Group. iv. Mandating, under threat of no funding, that: 1. CAFI file no less than 25 cases per week; 2. That all cases filed by CAR be referred to the O'Boyle law firm; 3. That all cases be settled for an amount in excess of the fees and costs incurred in the case. v. [additional facts] b. Jonathan O'Boyle. Jonathan O'Boyle is one of the engineers of the enterprise's scheme to defraud, along with his father Martin O'Boyle. To advance the interest of the enterprise, Jonathan O'Boyle has taken the following actions: i. Created, and sustained the O'Boyle Law Firm, a necessary element of the enterprise; ii. Filed spurious, frivolous, and baseless public records request as well as resulting lawsuits; iii. Ordered, that complaints for public records suits be filed on behalf of plaintiffs, such as Chandler, without knowledge or consent of the Plaintiffs; 21 iv. Ordered, that as a pattern and practice, all public records suits would be settled for an amount in excess of the actual fees and costs incurred to generate a profit for the enterprise; v. [additional facts] c. Christopher O'Hare. [I have no facts on him—more facts] d. William Ring. e. Denise DeMartini. f The O'Boyle Law Firm. g. Citizens Awareness Foundation, Inc. h. Commerce Group. i. Public Awareness Institute, Inc. j. Citizens Awareness Foundation, Inc., k. Our Public Records, LLC; 1. Stopdirtygovernment, LLC. 83. The members of the enterprise set forth above function in a fashion so as to become a continuing unit which furnishes a vehicle for the commission of the racketeering activity set forth below. The continuity of the enterprises' actions will be repeated in the future if it is allowed to continue. a. Pattern of Racketeering. 84. Pursuant to 18 U.S.C. § 1961(1), "racketeering activity" includes the predicate crimes of mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), and extortion (18 U.S.C. 1951). Under to 18 U.S.C. § 1341, "whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do" and uses the mails or other commercial carrier to do so, commits mail fraud. Similarly, under 18 U.S.C. § 1343, "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire," commits wire fraud. Under 18 U.S.C. § 1951, extortion is "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear (including fear of economic loss) ...." 85. All members of the enterprise have committed at least one predicate act of mail or wire fraud, or extortion, which when combined constitutes a pattern of racketeering undertaken by the enterprise to accomplish the goals of the enterprise. Examples of predicate acts by each member of the enterprise is as follows (this list is exemplary, and by no means exhaustive): a. Martin O'Boyle: i. By using the mail and the wires to incorporate CAFI on _, 2014, etc.[need concrete examples of using the mails and wires to advance the fraudulent scheme—documents attached would be beneficial]. b. Jonathan O'Boyle. c. Christopher O'Hare. [I have no facts on him—more facts] d. William Ring. e. Denise DeMartini. L The O'Boyle Law Firm. [this should list a chart of all public records request sent, lawsuits filed, and most importantly, settlement demands made] g. Citizens Awareness Foundation, Inc. 23 h. Commerce Group. L Public Awareness Institute, Inc. j. Citizens Awareness Foundation, Inc., k. Our Public Records, LLC; I. Stopdirtygovernment, LLC. 86. Each of these actions is a regular way of doing business for the enterprise's members and threaten repetition in the future. b. Reliance. 87. The frivolous and often inconspicuous public records request, as well as the false and disguised identity of the requester, along with the fraudulent settlement demands that were sent by the mails and the wires were justifiably relied upon by Plaintiffs and Class Members when they paid the fraudulent and inflated settlement demands or when the retained additional staff and spent additional resources in responding to the same. [need list of settlements paid] c. Proximate Cause and Damages. 88. The wrongful conduct of the enterprise set forth above, including the acts of mail fraud and wire fraud, have directly harmed the Plaintiffs and the Class Members. The Plaintiffs and the Class members paid inflated and fraudulent settlement demands based on the frivolous and often inconspicuous public records requests made by the enterprise, amounts they would not otherwise have paid. [need to include a chart listing some of these if possible] 89. In addition, when the volume of the frivolous public records request began to increase exponentially as the scheme to defraud progressed, the Plaintiffs and Class Members were forced to incur additional internal costs associated with having to try and respond to the same. [need to include a chart listing some of these if possible] 24 90. The acts of extortion were directly intended to cause the Plaintiffs to spend money defending a frivolous action having no nexus or relation to the original settlement demand to which they attempted to force compliance and payment. The Plaintiffs had a pre-existing right to be free from the threats of the unrelated public records request and frivolous litigation, and the resolution of the threatened public records requests and litigation would not impact the resolution of the case in which the threats were made but for the extortionate nature of the threats. The threatened public records requests and frivolous litigation were simply used as leverage to influence and gain compliance with fraudulent settlement demands made in unrelated cases—a tool to extort additional money from the Plaintiffs. [need chart showing fees spent on bogus records requests and frivolous litigation] 91. There is no person who has more directly sustained these injuries than the Plaintiffs and Class Members, and the injuries are a direct and intended result of the enterprise's scheme to defraud the Plaintiffs, as well as the mail and wire fraud acts undertaken as part of the scheme to defraud the Plaintiffs and Class Members. 92. Pursuant to 18 U.S.C. § 1964(c), Counter -Plaintiff requests an award of attorneys' fees and costs for having to bring the instant suit. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of all other similarly situated, pray for relief and judgment as follows: a. Certifying the proposed Class and approving Plaintiffs Town of Gulf Stream and as class representatives; b. Appointing Richman Greer, P.A and as class counsel; c. Awarding Plaintiffs and the Class treble damages in an amount to be proven at trial, along with costs, interest, an attorneys' fees; and 25 d. Entering whatever orders the Court deems necessary to divesting the Defendants from their interest in the enterprise and imposing reasonable restrictions on the future activities or investments of the Defendants to prohibit them from engaging in a similar type endeavor; e. Awarding any further relief the Court deems just and proper. VII. COUNT II—Abuse of Process. 93. Plaintiffs adopt and incorporate by reference paragraphs 1 through _, above. 94. Defendants have, and will continue, to use the public records request process, backed by the threat of future litigation and exposure to trumped up attorneys' fees claims, to force Plaintiffs to pay either: (i) fraudulent and inflated pre -suit settlement amounts; or (ii) pay attorneys' fees to ward off frivolous actions, and to take steps to ensure the exposure to any frivolous litigation is minimized by policies and procedures in place to address and confront the aforementioned scheme to defraud and extort prior to any suit being filed. 95. The Defendants are using the public records statute, and particularly the force of its one-way prevailing party attorneys' fees provisions of an illegal, improper, and perverted use which is driven by an ulterior motive or purpose. 96. Specifically, the Defendants are using the public records statute not for the purpose of obtaining access to public records, but rather, to force compliance by Plaintiffs with Defendants extortionate pre -suit settlement demands. 97. The costs associated with these policies and procedures include the payment of attorneys' fees, the hiring of additional staff, and other costs and expenses. Attached hereto as Exhibit `B," is a list of the costs incurred by Plaintiffs which do not include any post -suit amounts, or amounts that may otherwise be barred by the litigation privilege. 26 98. As Exhibit `B" illustrates, Plaintiffs have been injured in their property and damaged as a result of Defendants abuse of process. WHEREFORE, Plaintiffs Respectfully requests the Court enter judgment in its favor in an amount to be determined at trial, and for such other relief as the Court deems just and proper. JURY DEMAND Plaintiffs demand a trial by jury on all issues so triable. 27