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1544 (Rev 12,'12) CIVIL COVER SHEET
The IS 44 civil cover sheet and the information contained heroin neither law non supplement We fifiop and service of pleadings or other papers us inquired It) Imr, =qA as
provided W local rules of court This form, approved by the Judicial C er = of the United States In September 1974. is rogmred for the ase of the Ierk of Court for the
purpose or "tinting the civil docket sheet ( SEEJASTRUC 77ONSO.VNEI7PAGEOFTHISFl7Rtt)
L (a) PLAINTIFFS
Chris O'Hare
(b) County of Residenee of First Lisle, Plaintiff Palm Beach
fEMEPTU'L'S. PL41V77FFC45ES)
(C) Atlomel's lFvm A' ume . gJJreu. are /le/eybne:l'umber)
Robert Gershman, Esquire
2150 W Atlantic Avenue, 2d Floor
Delray Beach, Florida 33445
11. BASIS OF JURISDICTION(PLseo :F "moneBavony)
0 1 U.S. Govonmrnl J 3 Federal Question
1'laimill (L'S. Gmsanemem.Vor a Paul)
0 2 IIA Gmvemmmm 0 4 Divinity
Defendant (ln,6cas C,remh,p 0 P",.. in hem III)
IV. NATURE OF SUIT (Pkacea Y",n0.B.On/,•)
airs ctx vevx 10
Town Of Gulf Stream, Town Of Gulf Stream Commission, Town
Manager William Thrasher, Special Magistrate Lars Donlon, Officer
David Ginsberg, Sergeant Adam Gorel, Steven Tobias 8 Marty Minor
Cmmp' of Residence of First Listed Defendant Palm Beach
(IN ¢S. P1 LW27FF C4SES ONLY)
NOTE INLAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACr OF LAND INVOLVED.
Attorneys rlfW ro n;
CITIZENSHIP OF PRINCIPAL PARTIES (Place an':1"',n one BarforPlomQf
(ForD,vemty Cow Only) , ad0.Bcaf.,DefenJan?)
PTF DEF PTF DEF
Citizen.' This Stab, 01 0 1 Incorporate ur principal Place O 4 O4
oleudn o.In This Slab,
C.luen of Another Stec O 2 O 2 1ncaaporatd and Prina iel Pia¢ 7 5 03
of Business In Anwh> Sslc
Citizen o Subject ofa 03 O 3 Foreign Nation 0 6 06
D,,,,,,n r. —,..
Y. VAlb111 (YLxnan- S- tnomlf=onry)
I Original O 2 Removed from O 3 Remanded it= 0 4 Reinstated or 0 5 Transferred I'mm C1 6 Multidismcl
Proceuling State Court Appellate Court Reopened Another District Litigation
PFtirq„
Cite Ono U S. Civil Statute under wfich you are filing (Do oar s•Yejaria6dinnd.amuea senlm drvnsYy)'
42 U.S.C. 1983
VI. CAUSE OF ACTION.— .
I Deprivation of Constitutional Rights Under the 14th Amendment
VII. REQUESTED IN O CHECK IF Tins JS A CLASS ACTION DEMANDS CHECK YES only if demanded at complaint
COMPLAINT: UNDER RULE 23, F.R.Cv.P. 2,400,000.00 JURY DEMAND: ',Yes 0 N
VIII. RELATED CASE(S)
IF ANY (Seaofmsai.)' JUDGE Donald Mkddlebrooks 13- 80432- CV- Middlebmaks
, n DOCKET NIJMBQt
eC�
10/16/2013
0
0 1 t Iowan..
PERSONAL INJURY PERLSONAL INJURY
0 625 Aug Rclaled Scion
0 422 Apical 28 USC 158
Cl 375 Falx CI4611; Act
0 120 Marine
0 130 Miller Act
0 140 Negotiable InatrfmCn
O 150 Raowuv ofOraps ymant
S Ent'trwnml of Judgment
O 151 Mdic, .Ad
D 1521team'eryofDefaolte
Shdont Loans
0 310 Abplaoe O 363 Pcosrxlel Injury -
O 315 Aural. IN PrdudLiability
liability 0 3671Icdth Grc'
0 320 AaxWC Libel At Pharmacmtiod
Slander porxul Injury
0330 Fdaal Eanpt product liability
Liabiliy 0368 Asheatm P.]
0 340 Marine Injury Product
of Property 21 USC 881
0 690 Oulu
Cl 423 Withdrawal
28 USC 157
0 400 Slate Resppalionmrnt
0 410 Antimat
0 430 Dania and Banking
O 4511 Come...
0460 Depsrration
0470 Racket= Influenced and
Comfit Orgmtnt...
0 480 Cmsumu Cida
08M Copyngltb
:3 H30 Pa1mt
0840 Tradonad:
(Ewudca Veterans)
0 345 Maim Product Liability
0 4911 Cable Sal TV
0710 Fab labor Sorkidu
0961 IIIA(13951p
0153 Recovery archnpaymmt
Liability PERSONAL PROPERTI'
08505ecuri6escoranali6ea
of Vdoan , BrnNts
0160 Sluekhuldc'Suits
13 190 Other Contract
0 193 Contract Product Liability
01%ronchisc
0 350 Mato Vehicle 0 370 Other Fraud
0355 Moor Vdticle 0371 Tnnh in Landing
Product liability 0 330 M. Personal
0 360 Other lWsonal Proper' Danger
Injury 0385 Prnparly Damage
0362 Pasuml Injure- Product Liability
Maid Nialroacti.
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07201abor1lmugament
Ralaliam
O 740 Rail. Labor Act
0751 Fvmilymilhldkal
Leaver Act
07%Otho lobo litigation
0 791 &nploy'ee Retirement
Income Security Act
0 962 Black Lung (927)
O 863 DrWCDIW1A'(405(8)
Cl 96455= TIthimll
O 863 RSI (403(8))
Exchmgc
0890 OIho Slamlury Action,
0 891 Agsiculnwl Acs
0 893 Favbrmmrnsl \lances
0895 Redo= of Infomarion
Act
0 896Arbitr ice
0 899 Administrative Procedure
ActRcv,cwnr Appeal of
Agcnc' Decision
0930 Constiotiueality of
Stale Slawles
RFAL PROPERTY
CIVIL RJORTS
PRISON .R P .
FEDERAL TAX SUITS
7210 Lind Cnndrnmation
0 220 Foesluuuc
0230 Rot lux R Ejectrium
0 240 Tors to Lind
0 243 Tat Proud liability
A 440 falter Civil Rights
0 441 Voting
0442 Employman
0 443 Harting,
Accommodations
habeas Carpus:
0 463 Alice Unainm
0$IrhlMiml Wl'arab,
Sentence
0 530 Gosral
0870 Taxes (CS. Phuraff
or Dol'mda r)
0871 IRS —Dodd Party
26 USC 7609
0 290.0 Other Rcti Pf ty
0 445 Ama. vDisshiliu.-
0 535 Di Pmalp•
IMMIGRATION
Emtdymael
O 446 Ara. w.Dismbilities-
Other:
7 540 hlandamtu A Other
0 462 Nam,alunan. Application
0 465 Dlsa Immigrau,m
OWc
0 550 Civil Rights
Actions
0 449 Education
0 553 Prison Condition
0 560 Civil Desinee-
Conditions of
Confmanml
Y. VAlb111 (YLxnan- S- tnomlf=onry)
I Original O 2 Removed from O 3 Remanded it= 0 4 Reinstated or 0 5 Transferred I'mm C1 6 Multidismcl
Proceuling State Court Appellate Court Reopened Another District Litigation
PFtirq„
Cite Ono U S. Civil Statute under wfich you are filing (Do oar s•Yejaria6dinnd.amuea senlm drvnsYy)'
42 U.S.C. 1983
VI. CAUSE OF ACTION.— .
I Deprivation of Constitutional Rights Under the 14th Amendment
VII. REQUESTED IN O CHECK IF Tins JS A CLASS ACTION DEMANDS CHECK YES only if demanded at complaint
COMPLAINT: UNDER RULE 23, F.R.Cv.P. 2,400,000.00 JURY DEMAND: ',Yes 0 N
VIII. RELATED CASE(S)
IF ANY (Seaofmsai.)' JUDGE Donald Mkddlebrooks 13- 80432- CV- Middlebmaks
, n DOCKET NIJMBQt
eC�
10/16/2013
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 1 of 36
CHRIS O'HARE,
Plaintiff,
VS.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.
TOWN OF GULF STREAM;
TOWN OF GULF STREAM COMMISSION;
TOWN MANAGER WILLIAM THRASHER, Town Manager, in his individual capacity and
official capacity as the Town manager for the Town of Gulf Stream;
TOWN SPECIAL MAGISTRATE LARA DONLON, Special Magistrate, in her individual
capacity and official capacity as a Special Magistrate for the Town of Gulf Stream;
OFFICER DAVID GINSBERG, Officer, in his individual capacity and official capacity as an
Officer for the Town of Gulf Stream;
SERGEANT ADAM GOREL, Sergeant, in his individual capacity and official capacity as an
Sergeant for the Town of Gulf Stream;
STEVEN TOBIAS, Building Official, in his individual capacity and official capacity as a
Building Official for the City of Delray Beach; and
MARTY MINOR, Planning Consultant, in his individual capacity and official capacity as a
Planning Consultant for the Town of Gulf Stream.
Defendants.
COMPLAINT FOR LEGAL DAMAGES AND OTHER RELIEF
COMES NOW, Plaintiff, CHRIS O'HARE by and through his undersigned counsel and
hereby sues Defendants,
the TOWN OF
GULF STREAM, TOWN
OF GULF
STREAM
COMMISSION, TOWN
MANAGER
WILLIAM THRASHER,
TOWN
SPECIAL
MAGISTRATE LARA DONLON, OFFICER DAVID GINSBERG, SERGEANT ADAM
GOREL, STEVEN TOBIAS and MARTY MINOR and alleges:
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 2 of 36
INTRODUCTION
Plaintiff, Chris O'Hare, brings this action to recover monetary damages from the
Defendants for violating Plaintiffs civil rights. Beginning in September of 2011,
O'Hare's unfriendly encounter with Ginsberg set off a chain of events that led to the
Town of Gulf Stream and some of its employees retaliating against O'Hare in numerous
ways to punish O'Hare for his insolence in demanding equal treatment under the law. In
doing so, the Town has (a) enforced unconstitutionally vague laws, and parts of the Town
Code which give no notice that they carry the force of law, (b) prosecuted O'Hare
without giving any notice as to what facts and law would be in question beforehand, and
(c) required O'Hare to remedy supposed violations under the Town Code, utilizing
unconstitutionally vague standards. Indeed, the Town and its named Defendants agents
have acted upon their invidious animus and utilized vague and unnoticed standards to
carry out their retribution. O'Hare has suffered dearly, both economically and
emotionally.
JURISDICTION AND VENUE
1. O'Hare brings this action under 18 U.S.C. 1983, Florida common law and F.S.S.
768.28.
2. This Court has jurisdiction under 28 U.S.C. 1331, which gives district courts
original jurisdiction over civil actions arising under the Constitutional laws or
treaties of the United States.
3. This Court has jurisdiction under 28 U.S.0 1443(2), which gives district courts
jurisdiction over actions to secure civil rights extended by the United States
government.
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Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 3 of 36
4. This Court has jurisdiction under 28 U.S.C. 1367, which gives the district court
supplemental jurisdiction over state law claims.
5. Venue is appropriate in this judicial district under 28 U.S.C. 1391(b) because the
events that gave rise to this complaint occurred in this district.
PARTIES
6. Plaintiff, Christopher O'Hare ( "O'Hare ") is now and at all times pertinent was a
resident of the Town of Gulf Stream, Palm Beach County, Florida which is located in
the United States, Southern District of Florida.
7. Defendant, Town of Gulf Stream ( "Town ") is a Florida municipality duly formed and
operating under the laws of the State of Florida and the United States of America.
8. Defendant, David Ginsberg ( "Ginsberg ") was a Zoning Enforcement Officer for the
Town and an active member of the Town's municipal police force during all times
relevant.
9. Defendant, Adam Gorel ( "Gorel ") was a Sergeant for the Town and an active member
of the municipal police force during all times relevant.
10. Defendant, Town Manager William Thrasher ( "Thrasher "), was at all times pertinent,
the Gulf Stream Town Administrator with authority over the actions of Ginsberg,
Gorel, Minor and the Town.
11. Defendant Magistrate Lara Donlon ( "Donlon "), was at all times pertinent, (presenting
herself or acting as) the Gulf Stream Town Special Magistrate who presided over Code
Enforcement Hearings.
12. Defendant Marty Minor ( "Minor "), was at all times pertinent, the Town's Planning
Consultant.
3
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 4 of 36
13. Defendant, Town of Gulf Stream Commission ( "Commission ") is the Commission
duly formed and operating under and for the Town, a Florida municipality operating
under the laws of the State of Florida and the United States of America.
14. Defendant, Steven Tobias ( "Tobias ") is a Building Official for the City of Delray
Beach, which is under an interlocal agreement to provide building inspection services.
GENERAL ALLEGATIONS (a -e)
(a) Officer Ginsberg's Illegal Search and Seizure Under the Fourth and
Fourteenth Amendments
15. Starting on or about August, 2011, O'Hare chose to perform improvements on his
residence located at 2520 Avenue Au Soleil, Gulf Stream, Florida 33483 - which is
located in the Place Au Soleil subdivision.
16. The improvements involved both interior and exterior renovations to his residence
including the replacement of the existing roof.
17. On or about September 15, 2011, Ginsberg arrived at O'Hare's home, ordering
landscaping workers to cease and desist for lack of a vendor registration decal on the
workers' commercial vehicle. When O'Hare asked Ginsberg if the workers could
continue while someone went to Town Hall to obtain said decal, Ginsberg refused and
stated that he felt compelled to "act tough" with these "beaners" or they would never
comply with the Town's rules.
18. Upon hearing such blatant racist remarks from Ginsberg, O'Hare replied with moral
disapproval, "This is just great, I got a racist and a Barney Fife protecting my family."
19. Ginsberg then became agitated and shook his finger at O'Hare, whereupon Ginsberg
retorted that O'Hare should be grateful that when the new Wal -Mart opened (on the
west side of Federal Highway and across from the entry to the Place Au Soleil
4
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 5 of 36
subdivision), that he, Ginsberg, would be keeping the trash out the neighborhood -
referring ostensibly to the non -white people of color, ethnicity, or national origin who
would supposedly be attracted to the new Wal -Mart store.
20. On or about October 28, 2011, Ginsberg, acting in his official capacity under the color
of municipal law, entered the curtilage of O'Hare's property and inside O'Hare's
house with neither consent nor warrant, all the while, dawning a police officer's pistol.
21. Prior to entering the curtilage of O'Hare's home, Ginsberg asked Vincent Gonzales
( "Gonzales "), a lawn maintenance worker, who was immediately adjacent to the gate
surrounding O'Hare's curtilage; Gonzales responded - "only workers."
22. Ginsberg then proceeded through a self - closing gate into the curtilage of O'Hare's
residence, speaking to no person(s), past several Spanish speaking minority painters,
working on the house.
23. There was no apparent cause and/or justification; Ginsberg's intentions were totally
unknown at the time.
24. Having breached O'Hare's curtilage, but before entering O'Hare's house, again with
neither consent nor a warrant, Ginsberg made contact with the only Caucasian
construction worker, John Gundlach ( "Gundlach ").
25. When Gundlach became aware of Ginsberg's presence, and seeing that Ginsberg was
bearing a firearm, Gundlach inquired about Ginsberg's identity and intentions.
26. Ginsberg said he wanted to enter the home. Gundlach refused Ginsberg's request and
warned him that Gundlach did not have authority to allow Ginsberg's entry.
5
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 6 of 36
27. Ginsberg, saying nothing further and without presenting any official credentials
whatsoever, proceeded to open O'Hare's rear porch door and walked into O'Hare's
home over the continued verbal objections of Gundlach.
28. As he entered O'Hare's home, Ginsberg finally replied to Gundlach's objections by
stating - "I am a police officer. I can go anywhere I want."
29. While standing in the middle of O'Hare's home, Ginsberg consulted with Thrasher via
Ginsberg's cell phone.
30. After Ginsberg finished his call with Thrasher, Gundlach informed Ginsberg that he
had spoken with O'Hare and that O'Hare wanted the officer to leave the home.
31. Ginsberg replied forcefully - "You're the one who has to leave!" and exclaimed - "I
want you all to stop working and leave right now!"
32. Gundlach then informed all of the workers of Ginsberg's cease and desist order.
33. Immediately upon leaving, Ginsberg drove his town -owned vehicle around the comer
to the property at 2516 Avenue Au Soleil, located adjacent to O'Hare's home at 2520
Avenue Au Soleil, and owned by O'Hare. Once there, Ginsberg proceeded to walk
past the same maintenance worker, Gonzales, through another self - closing gate, and
entered the curtilage of O'Hare's property. Ginsberg then reached over a six foot high
solid wood fence and photographed the curtilage and those portions of O'Hare's home
located at 2520 Avenue Au Soleil, not visible to the public, including the interior of
O'Hare's home as seen through the rear porch of O'Hare's private backyard.
34. Ginsberg departed O'Hare's home and returned a short time later, accompanied by
Steve Tobias, a Building Official for the City of Delray Beach, which is under contract
with the Town to provide building inspection services for the Town. Ginsberg and
11
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 7 of 36
Tobias attempted to gain entry to the interior of O'Hare's home at the front entry door
and the side garage door; but found both doors locked. Ginsberg then proceeded to
take additional pictures of the rear of O'Hare's home and adjacent curtilage area by
positioning his camera over the top of the six foot high fence which encloses the
curtilage of O'Hare's home.
35. While Ginsberg stated in his subsequent police report regarding this incident that he
was suspicious of "banging noises" at O'Hare's residence due to two recent burglaries
of "unoccupied houses" in the Town, Town Attorney John Randolph subsequently
revealed that Ginsberg said he really entered O'Hare's home unannounced to check
the immigration status of the workers therein.
36. On or about March 5, 2012, Ginsberg repeatedly slammed on O'Hare's door. After
Gundlach answered the door, Ginsberg proceeded to disparage O'Hare, ending his
tirade by stating that the Town - "had Mr. O'Hare's number."
37. On or about March 5, 2012, Ginsberg stood in that part of the street that faces the front
of O'Hare's home and proceeded to stare down O'Hare, who was standing in his front
yard, in an outrageous and menacing fashion so as to cause O'Hare to be concerned for
his safety.
38. On March 20, 2012, O'Hare pulled into his driveway at 2516 Avenue Au Soleil with a
large trailer in order to unload some boxes, etc. into his garage. Due to the size of the
trailer, O'Hare had to park across his driveway and partly on his lawn. Ginsberg pulled
up behind O'Hare's trailer, parked his patrol car facing O'Hare, got out of his car and
walked to the rear of the trailer, stopped and stared at O'Hare for a few minutes
without speaking. Ginsberg inexplicably returned to his patrol car and moved it
7
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 8 of 36
forward facing away from O'Hare. Ginsberg again got out of his patrol car and
approached O'Hare and inquired of Mr. O'Hare as to how long he planned to have the
trailer parked there. O'Hare explained that he was just unloading a few items and
would be leaving in few minutes. Ginsberg then left.
39. Later in 2012, O'Hare learned from other Town residents that the Town police
systematically execute illegal searches by routinely entering the curtilage of residents'
homes without consent, authority or cause.
40. On or about October 11, 2013, O'Hare learned that another resident of the Town,
Martin O'Boyle, was contacted by Gorel, acting as a zoning officer, to let Mr.
O'Boyle know that two painters were working at his house without a Town work
permit. Mr. O'Boyle asked Gorel if he could get work permits at a later date and if
Gorel could allow the workers to continue. Mr. O'Boyle then went on to ask Gore] if
it would be "cool" to take this one up with Town Clerk Rita sometime next week.
Gorel replied accommodatingly that they ("the police ") do whatever "Town Hall" says
and chose to delay enforcement indefinitely until hearing from "Town Hall."
(b) Metal Roof
41. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs I through 40.
42. On or about August 29, 2011, O'Hare submitted a "ROOF/RE -ROOF PERMIT
APPLICATION" to the Town for a replacement roof of his single - family home, for
which he was already in the course of improving.
43. The Re- Roofing Permit was issued on or about the day it was applied for with the sole
condition that work commence within 180 days or else it would expire.
9
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 9 of 36
44. After the existing roof was removed, O'Hare became suspicious that the home's
structure was not strong enough to support the appropriate replacement — a white
colored concrete flat tile roof which was deemed appropriate in design and character
for the Place Au Soleil district.
45. On or about October 26, 2011, O'Hare contacted his roofer to let him know he was
concerned about the structural integrity of his roof and would be seeking to change the
roof covering materials on his residence from concrete the to metal - because a metal
roof was patently lighter than concrete tile.
46. On or about November 3, 2011, John Mulleavey of Roof Tee, e- mailed O'Hare that,
while attending a Roofing Association Meeting the previous evening, he discussed
"with another long -time roofing contractor in our area" that O'Hare was considering a
metal roof, and was told by the contractor - "that it doesn't matter what system we use,
THE TOWN OF GULFSTREAM DOES NOT ALLOW METAL ROOFS OF ANY
KIND."
47. On or about November 15, 2011, O'Hare's roofer submitted an application on
O'Hare's behalf for a metal roof permit in the same white color as the previously
approved roof.
48. Thrasher, acting in his capacity as Administrator, rejected O'Hare's request to change
the roof materials to metal. Mulleavey informs O'Hare by e-mail that - "We submitted
the permit revision today and was rejected by Bill Thrasher with a simple and stern
"No Metal Roofs PERIOD."
49. However, Thrasher failed to inform O'Hare there was a metal roof exception clause
under Section 70- 187(2) of the Town Code, the Gulf Stream Design Manual - which,
7
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 10 of 36
in fact, authorizes metal roofs on single - family residences under certain circumstances.
Although Article V, section 70 -99(3) and Article V1, section 70- 187(2) generally state
that all metal roofs are prohibited, Article VI, section 70- 187(2) includes an exception
which reads, in pertinent part:
Certain metal roofs determined by the town to be appropriate to the structure
and to the neighborhood may be approved only in instances of re- roofing of
existing structures based upon an engineer's certification that the existing
structure will not support a tile roof. Additionally, unpainted copper may be
used either as a decorative accent or on minor accessory structures.
50. On or about December 13, 2011, O'Hare had a certified engineer, Terrence E. Lunn.
PE, inspect the house's roof framing.
51. The next day, December 14, 2011, engineer Lunn informs O'Hare that his roof will
not support the type of concrete tile required by the Town and issued O'Hare a
certified letter as to same.
52. On or about March 6, 2012, after engineer Lunn certified that O'Hare's home could
not support a concrete tile roof thereby entitling O'Hare to the benefit of a metal roof
under Section 70- 187(2) of the Gulf Stream Design Manual, Thrasher, in a letter to
O'Hare, refused to acknowledge the metal roof entitlement as a matter of policy, and
informed O'Hare that metal roofs were prohibited and should he want a metal roof,
O'Hare needs to apply for a variance. Thrasher also informed O'Hare that the variance
process would require an inspection of the property by the Town's engineer in order to
verify the conclusions reached by Lunn and the veracity of Lunn's certification letter.
53. On or about March 28, 2012, O'Hare, relying upon the provisions of Sec. 70- 187(2) of
the Town Code, filed an appeal of Thrasher's March 6, 2012 decision in which he
stated that a variance would be required for a metal roof.
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54. On or about March 30, 2012, the Town through Clerk Rita Taylor and Thrasher,
requested that the Town Engineer be allowed to verify O'Hare's engineer's Letter of
Certification. Since verification was not required to meet the exception of Section 70-
187(2), O'Hare refused.
55. On or about April 13, 2012, at a Hearing of the Town Commission sitting as the Board
of Adjustment to consider O'Hare's appeal, Thrasher stated that he knew of conflicts
regarding metal roofs in Article V and Article VI, but felt the more restrictive Article
V was controlling. Thrasher took this position despite the fact that Article VI, section
70- 186(b) of the Town Code states that where portions of Article VI may conflict with
portions of Article V, Article VI shall prevail - thus making the exception to a metal
roof as outlined in Section 70- 187(2) the exception that supersedes the rule.
56. Town Clerk Rita Taylor stated that she had spoken to Diana, as secretary at Roofrec,
the roofer who had worked on O'Hare residence, and Diana said that O'Hare `just
wanted a metal roof."
57. Thrasher stated that O'Hare wanted a metal roof and further stated that O'Hare even
asked the Town for a metal roof before conducting a structural analysis.
58. Town Attorney John Randolph said that if O'Hare could let the Town verify the basis
for Engineer Lunn's certification, then O'Hare would be entitled to a metal roof and
that a variance would not be required.
59. However, at the May 11, 2012 Board of Adjustment hearing, a continuation of the
April 13, 2012 hearing, the Town Commission and Town Attorney John Randolph
stated that despite what the Town Code said, the Town ought to be able to review
engineer Lunn's certification for veracity.
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60. Then Vice Mayor Joan Orthwein stated that a variance was required because of
questions surrounding Engineer Lunn's report; and also stated that because the roof
had held concrete tiles for the last 35 years, the Board had a right to question the
integrity of the engineer's certification.
61. Commissioner Devitt, sitting on the Board, said that the metal roof would be a "done
deal" if the town could verify the engineer's certification.
62. Commissioner Dering, sitting on the Board, said that the issue of whether O'Hare was
entitled to a metal roof or required a variance would become "quite clear" upon
allowing the Town's Engineer to inspect O'Hare's home and verify Engineer Lunn's
certification.
63. Also during the May 11, 2012 Board of Adjustment hearing, Town Attorney Randolph
conceded that O'Hare had done everything required of him to qualify for the exception
allowing a metal roof under Town Code Section 70- 187(2), and further no variance
was required for O'Hare's metal roof; but because O'Hare would not let the Town
independently verify engineer Lunn's certification by an engineer of the Town's
choosing, O'Hare would need to apply for a variance.
64. O'Hare was never given any notice that the April 13, 2012, Board of Adjustment
Hearing would address the factual veracity of Engineer Lunn's certification and as
such was not given a meaningful opportunity to prepare arguments of law and present
factual evidence to address the Board's concern. Rather, O'Hare was only noticed that
the Board would address whether Thrasher was wrong to require a variance in order
for O'Hare to have a metal roof permit as a matter of law.
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65. Many times during both the April 13, 2012 and May 11, 2012 Board of Adjustment
Hearings, O'Hare's counsel, Mr. Roeder, asked the Board what part of the Town's
Code specifically provides for a variance from the regulations of Chapter 70, including
70- 187(2), and further asked the Board where such a provision could be found. The
Board did not respond to either inquiry.
66. After the Board of Adjustment hearing on May 30, 2012, the Town Commissioners
issued a Final Action sustaining Thrasher's denial of a metal roof without first
obtaining a variance.
67. On July 13, 2012, just two months after the final action by the Commission in the
Appeal before the Board of Adjustment, the Commission changed Sec 70- 187(2) of
the Code with the adoption of Ordinance 12/4, to mandate engineer's certifications be
presented with studies/reports and a provision giving the Town the discretion to
inspect the applicants home with their own engineer - precisely the conditions they
placed upon O'Hare at the previous appeal hearings without any notice.
68. On or about June 18, 2012, O'Hare filed a petition for Certiorari before the 15''
Judicial Circuit Court of Florida challenging the Commission's final action on
Thrasher's decision. The Town's response to this petition included their assertions that
the use of the word "may" as it appears in the Town Code would mean "may or may
not" and the choice of which meaning applied was at the sole discretion of the Town.
69. On June 28, 2012, O'Hare also filed for an emergency writ of mandamus seeking to
compel the Town to issue a permit for a metal roof because the Florida hurricane
season was imminent.
70. On September 4, 2012, the writ of mandamus was denied with no opinion.
Er-1
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71. On or about January 28, 2013, the 15'' Judicial Circuit ruled on O'Hare's petition for
Certiorari by issuing a per curium denial.
72. On or about February 27, 2013, O'Hare sought appellate review of the 15a' Judicial
Circuit Court order before the Fourth District Court of Appeals.
73. On June 18, 2013, with no response from the Town, the appeal to the Fourth District
Court of Appeals was denied on its merits - with no opinion.
74. Since October of 2011, the O'Hares have been prevented from installing a proper roof
on their home and, as such, have been unable to obtain homeowners insurance.
Because of the events described above, O'Hare, his wife, and his minor children have
been forced to endure much consternation and severe emotional distress for which
Mrs. O'Hare has sought and received medical assistance.
(c) Illegal Seizure of Plants And O'Hare
75. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 74.
76. On or about November 21, 2011, O'Hare was planting several small trees near the
edge of his home's property, apparently within the public right of way, yet further
from the edge of the road than similar and larger trees planted at several other homes
within the Town's district, including the home of then current Commissioner
Anderson at 960 Indigo Drive in the same Place Au Soleil subdivision. The portion of
the public right -of -way where the trees were planted is the continuous landscaped zone
located from the edge of the roadway pavement to the edge of his property line. The
maintenance responsibility of this area has historically been that of the owner of the
property immediately adjacent to the right -of -way.
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77. Gorel observed O'Hare in the process of planting the trees and proceeded to converse
telephonically with Thrasher in front of O'Hare.
78. Gorel thereafter ordered O'Hare to move the trees back from the edge of the road, but
refused to inform O'Hare how far the plants needed to be moved back.
79. O'Hare then gets Gorel's consent to retrieve his copy of the Town Code and asks
Gorel to show him where in the Code was the prohibition against O'Hare's type of
plantings in the right of way.
80. Gorel declined to look in O'Hare's copy of the Town Code and retorted by telling
O'Hare that - "police have their own book of rules." After again talking on his cell
phone to Thrasher, Gore] informs O'Hare that Thrasher said the plants had to be
removed "or else."
81. On or about November 22, 2011, Thrasher sends Ginsberg to O'Hare's residence to
photograph said plants.
82. On or about November 23, 2011, Thrasher had a letter hand - delivered to O'Hare
stating that O'Hare needed a "landscaping permit prior to commencing any
landscaping on [his] property."
83. Thrasher also informs O'Hare that the police use the same code book that O'Hare had
presented to Gorel two days before.
84. On or about March I, 2012, Lou Roeder, attorney for O'Hare, requests the Town for a
cite of that portion of the code that requires a permit for "any" landscaping.
85. On or about March 6, 2012, Thrasher replied to Mr. Roeder's question and stated, in
effect, "any" landscaping is what the Town Administrator, says it is.
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86. In the same reply, Thrasher also stated that he was directed by the Town Commission
in 2004, to prohibit planting in the right of way as a matter of policy, but could not
provide a reference to any Town law.
(d) Fraudulent Code Violations
87. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 86.
88. On or about October 1, 2012, Thrasher sends a town employee to photograph
O'Hare's landscaping at 2520 Avenue Au Soleil.
89. On or about October 5, 2012, Thrasher initiates a -mails back and forth with Board
Members of the Place Au Soleil Homeowners Association, soliciting a negative
reaction to O'Hare's recent plantings. Thrasher tells the HOA Board members that "if
[they] are happy with [O'Hare's planting] in [their] community, then he is not going to
force the issue with the O'Hares'; however, "if [they] are not happy, [they] are to
advise him and he will take the appropriate action."
90. On or about October 16, 2012, Minor responds to Thrasher's request to review the
landscaping at O'Hare's home. In a subsequent memorandum, Minor reports to
Thrasher that O'Hare is in violation of Town Code Sec. 70 -32, 70 -146, and 70 -150.
91. On or about November 5, 2012, O'Hare receives a code violation letter stating that he
is in violation of Town Code: (a) 58 -138 for moving fill on his property without a
permit, (b) 70 -150 which outlines the types of plants found in the town; (c) 70 -32
which summarizes the common characteristics of the Place Au Soleil district,
including, as undefined, "open front lawns "; and (d) 70 -146 which outlines several
purposes of the landscape standards.
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92. On or about January 28, 2013, O'Hare sends Thrasher a letter requesting clarification
of the November 5, 2012 charges because O'Hare did not understand in what way he
had violated the quoted sections of the Gulf Stream Design Manual. More
specifically, O'Hare took issue with Thrasher's interpretation of those parts of the code
which carry the force of law and those parts of the code that merely reference the
history and past characteristics of the Town, and those parts that resemble an
architectural reference manual intended to be used for the purpose of reviewing
development proposals.
93. On or about February 26, 2013, Thrasher responds to O'Hare's January 28, 2013 letter
not by answering his request for clarification, but by informing O'Hare of a formal
Code Enforcement hearing date which had been set before Dolon.
94. O'Hare requested a copy of the Town's Staff Report prior to the Code Enforcement
hearing but received no response.
95. On or about February 26, 2013, the Town informed O'Hare of a Code Enforcement
hearing scheduled for March 21, 2013.
96. When Thrasher is asked during the hearing on cross examination to define what
constitutes an "open front lawn," he replies, "I don't think that, specifically, it's
defined. The fact that you can or cannot see the front of the home would be an
indicator ..." Thrasher continued, "At this time, I do not know if there is a definition
in our code of open front yards. It is a general term that I have referred to and
referenced whether or not you could see the front door, see the front of the house."
97. On or about April 2, 2013, Donlon, finds that (a) 58 -128 does not apply, (b) no
violation for 70 -150 or 70 -146, but does find (c) O'Hare in violation of the "open front
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lawns" provision under 70 -32(a) entitled "Summary of district [Place Au Soleil]
characteristics."
98. Donlon then orders O'Hare to remove the plants in his driveway "that block the view
of the home and return it to the previously existing condition." Not defining what IT
is, or to what extent any plants need to be removed to open the view to the driveway,
and without reference to any pre - existing date or configuration to which the
landscaping would need to be reverted.
99. On or about April 19, 2013, Thrasher met O'Hare and O'Hare's employee, Rodrigo
Tejera, at O'Hare's home to inspect landscaping and determine whether the property
complied with Donlon's order.
100. While Thrasher acknowledged that O'Hare now met the definition of an "open front
lawn" as ordered by Donlon, he insisted that O'Hare was still not in compliance
because he did not return his home to its pre - existing condition.
101. Thrasher then showed O'Hare a never before -seen photo — evidently copied from
Google Earth Street View, with a time stamp of May 2011, and demanded that O'Hare
restore his landscaping to conform to that photo.
102. The photo was not offered into evidence during the March 21, 2012 Code
Enforcement Hearing before Donlon, and was neither referenced nor presented to
O'Hare prior to the April 19, 2013 meeting with Thrasher.
103. On the same day, O'Hare filed a Motion for Reconsideration before Donlon, because
the findings of facts and conclusions of law were not supported by the evidence
presented at the hearing by Thrasher.
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104. On or about May 13, 2013, O'Hare searched the Town's public records and
discovered that (1) the sworn testimony of Thrasher wherein he states (a) the town has
consistently used an "open front lawns test" when enforcing landscaping provisions of
the code; and (b) that all non - complying similarly situated properties were lawfully
"grandfathered in" and (2) hired witness Minor's testimony that O'Hare was planting
prohibited species were all directly contradicted by photographic and other evidence
located in the Town's own records. These records contradicted Thrasher's unwavering
definition of "open front lawns" from his own testimony at the hearing.
105. O'Hare filed a Motion for Sanctions for Fraud Upon the Court after discovering that
critical evidence presented by the Town at the March 21, 2013 Code Enforcement
Hearing before Donlon was intentionally false.
106. On or about May 14, 2013, O'Hare attended the Fine Assessment Hearing before
Donlon, wherein Donlon refused to consider O'Hare's Motion for Reconsideration and
his Motion for Sanctions in the presence of Town Attorney John Randolph.
107. Donlon also found that O'Hare had not complied with her order to remove plants
from the driveway, despite the fact that removing plants from the driveway in their
entirety was not specifically mandated by Donlon's April 2, 2013, Order.
108. Donlon fined O'Hare $100 dollars a day instead of $200 a day because O'Hare took
remedial action and attempted to comply with Donlon's Order. Before issuing the
order, Donlon appeared to recognize that the Order was vague, but nevertheless ruled
for the Town to ensure that her law firm would continue serving as the Special
Magistrate at the pleasure of the Town.
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109. The same day, O'Hare removes vegetation to conform to Thrasher's photograph - at
an estimated cost of $5,400.
110. On all relevant dates in this section, Donlon was not a duly appointed Special
Magistrate pursuant to Town Code Sec. 2-67(a)—(c) and, as such, without jurisdiction.
(e) Garage Permit - Unilateral Style Change
111. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 110.
112. On or about September 15, 2012, O'Hare submitted a permit application to Thrasher
for a hurricane -rated garage door on his residence at 2520 Avenue Au Soleil.
113. On or about September 18, 2012, Thrasher denies the garage door permit saying that
it did not conform to the "Bermuda" Style as defined in the Town Design Manual.
114. Thrasher made this determination despite the fact that the Town Manual, a part of the
Town Code, classifies O'Hare's home style as "Other /Various ", not "Bermuda ".
Thrasher instructed Minor to find any reason to justify changing this property's zoning
description as it is codified in the Town's Code therefore to provide Thrasher with a
supported rational basis for this change and then, for the purpose of enforcing a design
standard, not clearly defined in the Town's Code, did change the official description of
this property without the benefit of a public hearing as required by the Town Code.
115. Because Thrasher unilaterally redefined O'Hare's home style as "Bermuda" instead
of "OtherNarious," O'Hare is not now entitled to improve his home in ways allowed
under "OtherNarious" Style but must adhere to contrary standards reserved
exclusively for "Bermuda" Style.
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COUNTI
Illegal Search and Seizure Under the Fourth and Fourteenth Amendment
116. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs I through 115.
117. Ginsberg entered the curtilage and home of the O'Hare family on October 28, 2011,
without a warrant or exigent circumstances as either a code enforcement officer, police
officer, or both, in violation of the Fourteenth Amendment Search provision.
118. The Town Code Sec. 2 -26 specifically cross references Florida State procedures for
obtaining inspection warrants before entering residential property.
119. Ginsberg seized O'Hare's workers without a warrant and in the course of executing
an illegal search, thereby causing harm to O'Hare's right to privacy, emotional
wellbeing, the loss of contractual services, and diminution in value of building
materials.
120. Ginsberg entered the curtilage of the O'Hare home on October 28, 2011, without a
warrant, authority or exigent circumstances as either a code enforcement officer or law
enforcement officer, or both, in clear violation of the Fourteenth Amendment Search
provision.
121. Ginsberg attempted to enter O'Hare's home a second time on October 28, 2011,
accompanied by Tobias, without a warrant, authority or exigent circumstances as
either a code enforcement officer or law enforcement officer, or both, in clear violation
of the Fourteenth Amendment Search provision.
122. Additionally, the information gained from Ginsberg's illegal search was used as the
basis for a Notice of Violation issued by Thrasher on October 29, 2011, and
subsequently and prejudicially influenced the Town Commission when they
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subsequently denied O'Hare's exemption for a metal roof without any apparent cause
on May 30, 2012.
COUNTII
First Amendment Retaliation
123. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 122.
124. Ginsberg retaliated against O'Hare because of O'Hare's association with non - whites.
125. In the alternative, Ginsberg retaliated against O'Hare because of O'Hare's critical
statements and expressed moral outrage at Ginsberg's disposition towards race and
displays of overt racism.
126. As a result of Ginsberg retaliation, Ginsberg caused harm to O'Hare's right to
privacy, emotional well- being, the loss of contractual services, and diminution of
value of building materials as well as the harms stated above.
COUNT III
Impairment of Contract Based on Race
127. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs l through 126.
128. Ginsberg impaired O'Hares contracts during the unlawful search on October 28,
2011 in violation of 42 U.S.C. 1981 when he ordered O'Hare's contractors /workers to
cease performing their obligations based upon Ginsberg's previously - stated beliefs as
to their non -white status as "beaners," thereby furthering his promise to rid the
neighborhood of "trash."
129. This impairment of contract under color of law caused O'Hare to suffer loss of
contract services, and diminution of value of building materials and labor.
Fkj
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COUNT IV
Denial of Equal Protection Under the Fourteenth Amendment
130. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs Ithrough 129.
131. Ginsberg performed an illegal search, seizure, and otherwise acted harassingly,
intruding upon O'Hare's seclusion, based upon an irrational basis that was motivated
by invidious purposes - O'Hare's association with non - whites and Ginsberg's personal
spite toward O'Hare.
132. In acting without a rational basis, Ginsberg caused all of the aforementioned harms
in Count I through Count IV above.
COUNT V
Denial of Equal Protection /Substantive Due Process Under the Fourteenth
Amendment — Supervisor Liability
133. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 132.
134. Thrasher, the direct supervisor of Ginsberg, whom he was in constant and detailed
communication concerning all code enforcement issues as well as contemporaneous
telephonic contact during the search, ratified, encouraged, or otherwise acted favorably
towards Ginsberg's October 28, 2011, illegal search, seizure, and other prior and
subsequent acts, with deliberate indifference to O'Hare's constitutional rights which
violates the civil rights as described in Counts I through IV above.
COUNT VI
Denial of Equal Protection /Substantive Due Process Under the Fourteenth
Amendment — Municipal Liability
135. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 134.
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136. Thrasher, the chief executive policy enforcer of the Town and the direct supervisor of
Ginsberg, in his code enforcement duties, with whom he was in constant and detailed
communication concerning all code enforcement issues, ratified, encouraged, or
otherwise acted favorably towards Ginsberg's October 28, 2011 illegal search, seizure,
and other acts with reckless disregard to O'Hare's civil rights as described in Counts I
through V, above.
137. The Town policy of allowing police /code enforcement officers to execute illegal
searches without a warrant, as implemented through Thrasher, caused the harms in
Count 1 through VI above.
138. Town adjudicated against O'Hare using a quasi-judicial process presided over by an
unauthorized Special Magistrate who acted without proper authority.
COUNT VII
Trespass
139. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs I through 138.
140. On or about October 28, 2011, Ginsberg unlawfully and intentionally entered
O'Hare's home wherein he ordered O'Hare's contractors /workers to cease work.
141. The same day, Ginsberg intentionally and unlawfully entered O'Hare's property
wherein he photographed the curtilage of the O'Hare home.
142. The same day, Ginsberg returned to O'Hare's property with Tobias and intentionally,
unlawfully and successfully attempted to enter O'Hare's home for a second time, and
to photograph the curtilage of the O'Hare home from over a six foot high privacy
fence.
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143. These actions caused O'Hare the aforementioned harm in Count I through Count VII
above.
COUNT VIII
Tortuous Interference with Contract
144. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 143.
145. On or about October 28, 2011, Ginsberg, in the course of illegally trespassing in
O'Hare's home, intentionally and illegally caused O'Hare's contractors to cease work,
thereby denying them the ability to fulfill their contractual duties, and causing O'Hare
to undergo delays in construction, money to pay for services not rendered and all other
harms noted in Counts I through VIII above.
COUNT IX
Intrusion Upon Seclusion
146. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs Ithrough 145.
147. Ginsberg's trespass upon O'Hare's home on October 28, 2011, whereupon he
photographed the curtilage, backyard, and interior of O'Hare home, and Ginsberg's
return visit to again photograph O'Hare's curtilage and backyard, constituted a highly
offensive intrusion upon the solitude or seclusion of O'Hare's private residential
spaces thereby causing O'Hare emotional distress, insecurity, concern for the safety of
his family, and loss of privacy interest in the non - public portions of his home.
FAc:
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Count X
Denial of Equal Protection
148. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 147.
149. Thrasher denied O'Hare equal protection by denying O'Hare a vested property
interest to a metal roof with no rational basis and/or based on invidious contempt,
spite, personal taste, or other illegitimate government interest with willful disregard to
the Town's Code.
150. As a result of the aforementioned conduct, O'Hare has been forced to endure two
hurricane seasons without a properly weatherproofed roof, was unable to acquire
homeowner insurance because he lacked a completed roof, and was forced to mend
and repair leaks caused by storm events otherwise preventable by a proper roof.
O'Hare was also caused to endure costly appeals and suffered emotional distress
stemming directly from Thrasher's harassing treatment and indirectly from the anxiety,
pain, and suffering of his family stemming from the adverse living conditions caused
directly by Thrasher.
151. Thrasher caused all of the harms noted in Count 1 thru X above.
COUNT XI
First Amendment Retaliation
152. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 151.
153. In the alternative, Thrasher denied O'Hare's metal roof permit because O'Hare had
exhibited dissidence towards one of the Town's employees, Ginsberg, when O'Hare
called Ginsberg a "racist" and a `Barney Fife" in September, 2011.
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154. Town Manager Thrasher caused all of the harms noted in Count X1.
COUNT XII
Illegal Seizer under the Fourth and Fourteenth Amendments
155. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 154.
156. On or about November 22, 2011, Gorel illegally seized O'Hare and his trees when he
ordered O'Hare to move the trees planted in the Right of Way of O'Hare's property.
157. O'Hare was seized without probable cause of a violation of law and/or with the
intentions to retaliate against O'Hare for his dissidence stemming from speech and/or
invidious spite. The seizure of O'Hare was otherwise unreasonable in scope and
duration when Gorel ordered Chris to personally remove the plants.
158. O'Hare suffered emotional distress, a deprivation of dignity, and was forced to
personally undertake an extremely laborious task.
COUNT XIII
Conversion of Chattels or Trespass to Chattels
159. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 158.
160. On or about November 21, 2011, Gorel intentionally and illegally exhibited domain
over O'Hare's plants when he ordered O'Hare to move the plants on his property
causing O'Hare time and labor to comply with Gorel's order and depriving O'Hare of
his property interest in exclusive control of his chattels, and causing O'Hare emotional
distress from Gorel's assault on O'Hare's dignity and all harms noted in Count X11.
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COUNT XIV
Illeeal Seizer under the Fourth and Fourteenth Amendments — Supervisory &
Municipal Liability
161. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 160.
162. Thrasher, the chief executive policymaker for the Town, had supervisory and
municipal liability for Gorel's November 22, 2011 seizure of O'Hare and O'Hare's
property because Thrasher was aware of Gorel's actions, they were in constant
telephone contact, and Thrasher ratified Gorel's actions, affirmatively and by silence.
163. The Town's unwritten policy of planting in the right of way, through the Town
Commission's 2004 discussion, caused Gorel to illegally search and seize O'Hare and
his property without probable cause or reasonable suspicion of a violation of law.
164. O'Hare's harms are identical to those noted in Count X1I.
COUNT XV
Denial of Equal Protection under the Fourteenth Amendment
165. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 164.
166. Gore], the Town, and Thrasher denied O'Hare equal protection when Gorel, under
supervision of Thrasher, forced O'Hare to remove and transplant several trees, on
November 21, 2011, under the Town custom of not allowing plants in the public right
of way adjacent to O'Hare's property while allowing then Commissioner Anderson
and other property owners to engage in the same behavior without action and,
therefore, without a rational basis.
167. O'Hare suffered the same harms noted in Count X11.
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COUNT XVI
Denial of Due Process under the Fourteenth Amendment
168. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs I through 167.
169. On or about May 30, 2012, the Town denied O'Hare's appeal of Thrasher's decision
denying O'Hare's property interest in a metal roof because the Commission, sitting as
the Board of Adjustment, was suspicious of the veracity of Engineer Lunn's
certification. The Town denied O'Hare's permit for a metal roof, a property interest
he was lawfully entitled to under the Town Code because of concern of fraud, without
giving O'Hare a hearing to present evidence to allay any factual concerns that the
Board may have had with Engineer Lunn's certification.
170. In the alternative, the Board pre - textually denied O'Hare's appeal with spite,
insidious, or retaliatory motive in violation of equal protection.
171. The Town also did not meaningfully notice O'Hare that his Board of Adjustment
Appeals would concern the legal or factual issues surrounding the impact of an
engineer's report under the Town Code.
172. The aforementioned Board actions causing O'Hare to live without a completed roof,
hurricane insurance and to undergo costly appeals and suffer emotional distress,
anxiety from the numerous severe storms (including hurricanes and tropical storms)
that frequent South Florida, and a basic enjoyment of life.
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COUNT XVII
Failure to Hire. Train & Supervise
173. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 172.
174. The Town, to this date, still has no procedural guidelines for Code Enforcement
officers despite, during the most recent final budget hearing on September 17, 2013,
Commissioner Ganger's request for the town to adopt code enforcement training or
hire an outside agency for training. To date, the commission failed to investigate code
enforcement employee training.
175. The Town, acting with gross negligence, reckless disregard, and/or deliberate
indifference to O'Hare's constitutional rights to property, liberty, speech, and equal
protection under the Fourteenth Amendment of the Constitution, hired Thrasher,
Ginsberg, Gorel, and Minor and failed to train same, or failed to supervise same, or
failed to provide a standard code of conduct or procedural guide for same, and as a
direct result Thrasher, Ginsberg, Gore] and Minor violated O'Hare's constitutional
rights causing any and all harms in the aforementioned counts.
176. Thrasher, the chief executive policymaker for the Town, acting with deliberate
indifference to constitutional rights, recklessly, trained, supervised, and /or hired
Ginsberg and Gorel as the code enforcement officers, and Minor as the Town Planning
Consultant, without the benefit of code enforcement guidelines. As a direct result,
O'Hare has suffered deprivations of constitutional rights and all of the aforementioned
harms in any and all of the aforementioned counts.
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COUNT XVIII
Florida Negligent Hiring, Supervising. Training of Ginsberg, Gorel, Minor
and Thrasher
177. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 176.
178. Under Florida Statute 768.28, the Town, as an employer, negligently hired, trained,
or supervised Thrasher in code enforcement actions, including his failure to designate
O'Hare's home as an "OtherNarious" style despite being so designated such under
town Code 70 -215, which caused O'Hare to be refused for his hurricane -rated garage
door permit causing embarrassment, frustration, and emotional distress and potential
damage from a future storm.
179. The Town's failure to train Thrasher caused him to negligently interpret the law and
for O'Hare to be denied a metal roof, despite O'Hare's clear and unambiguous
entitlement for that vested property interest, after the submission of an engineer's
certification, under the Town Code, causing O'Hare to live without a completed
weather -proof roof, to live with a leaking roof, to live without the ability to get
hurricane insurance for over a year, as well as embarrassment, frustration, and
emotional distress.
180. Thrasher negligently interpreted Town Code 70 -32 "open front lawns" provision to
carry the force of law, failed to recognize the term as unconstitutionally vague before
enforcement, failed to determine a definitive and published interpretation, and
therefore lacked probable cause before enforcement. This caused O'Hare to undergo a
hearing before Donlon, costing O'Hare legal fees, emotional distress, and frustration.
31
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181. Under the same statute, Thrasher negligently trained or supervised Ginsberg in
conducting code enforcement actions, and Minor as the Town Planning Consultant,
which caused O'Hare emotional distress, harms to privacy, harms to dignity,
embarrassment, and frustration.
182. Thrasher negligently trained or supervised Gorel and Minor when Thrasher consulted
with Gorel and Minor about plantings in the right of way after Gorel's seizure of
O'Hare, and consulted with Minor about Town Planning issues against O'Hare,
causing O'Hare emotional distress, embarrassment, frustration, and the pains of labor.
183. The Town was negligent in failing to exercise reasonable care to consider the plane
language of their own code when it caused O'Hare to undergo a code enforcement
hearing without a neutral decision maker after failing to appoint Donlon per the
requirements of the Town Code, causing O'Hare legal fees, emotional distress,
frustration, and the lost profits stemming from the inability to attend to his business.
COUNT XIX
Denial of Due Process
184. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 183.
185. Donlon denied O'Hare Due Process when she issued a vague order on April 2, 2013,
demanding O'Hare open up his front lawn and to return it to its "preexisting condition"
without specifying a particular date. Although O'Hare attempted to comply with the
vague order, he was forced to remove a good portion of his plants at a cost of
thousands of dollars or face $100 a day fine.
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186. The Town of Gulf Stream denied O'Hare Due Process when they prosecuted him in a
code enforcement hearing without a neutral magistrate due to the fact that Donlon was
unlawfully appointed and not a legally recognized Magistrate, thereby acting in clear
absence of any jurisdiction.
187. The Town denied O'Hare Due Process when it enforced a false Order issued by
Dolan who was unlawfully appointed and not a legal Magistrate, thereby acting in
clear absence of any jurisdiction and thus creating false documents under the color of
authority, thereby forcing O'Hare to take remedial action on his property or be fined.
188. The Town denied O'Hare Due Process when his property, both real and monetary,
was placed in jeopardy under the "open front lawns" portion of the code without
notice that the "open front lawns" portion carried the force of law and because the
Town enforced an unconstitutionally vague law.
189. The Town denied O'Hare Due Process when his property, both real and monetary,
was placed in jeopardy by Donlon, based solely upon Thrasher's falsified evidence
concerning the consistent enforcement of open front lawns and the "grandfathering" of
other properties presented at the Code Enforcement Hearing because Thrasher and
prosecutor John Randolph knew this evidence was false prior to the hearing or knew
subsequent to the hearing, and failed to correct it, which caused Donlon to enter
judgment against O'Hare and for O'Hare to spend over $5,000 to bring his front lawn
into conformance with that order, as well as emotional distress, time, and the pains of
labor.
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COUNT XX
Intentional Infliction of Emotional Distress
190. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 189.
191. Thrasher and Minor intentionally misrepresented and misapplied code section 70 -150
to incorrectly read that some plants were prohibited when the code correctly simply
reads that these same plants are "typically found."
192. On or about March 5, 2012, Ginsberg intentionally used his position as a police
officer to intimidate O'Hare by staring him down and banging on his front door,
harassing him while O'Hare unloaded a trailer in his driveway, causing O'Hare
emotional distress and to fear for his safety.
COUNT XXI
Slander
193. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 192.
194. On or about March 5, 2012, Ginsberg maliciously told Gundlach to be careful and
not to do what O'Hare said, and that the "Town had O'Hare's number" — each false
and defamatory statements — causing O'Hare to lose the confidence of his workers,
negatively affecting his contractual relationship with them.
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COUNT XXII
Malicious Prosecution /Abuse of Process
195. Plaintiff re- alleges and re -avers each of the allegations set forth in the above
Paragraphs 1 through 194.
196. The Town, Minor, and Thrasher, the chief executive policy enforcer for the Town, in
furtherance of retaliation or based upon animus, investigated, instigated, and otherwise
participated in the prosecution of O'Hare on or about November 5, 2012, under the
misuse of the Town Code Sec. 58- 138(b), 70 -150, and 70 -146 without probable cause
which were later dismissed by the April 2, 2013, order of Donlon, causing O'Hare to
accrue legal fees and suffer emotional distress.
Demand For Tury Trial
Plaintiff demands a trial by jury on all issued so triable.
WHEREFORE, Plaintiff demands judgment against Defendants in an
amount within the jurisdictional limits of the court, to wit in excess of Fifteen
Thousand Dollars ($15,000), plus attorneys' fees, costs, roof repairs, punitive
damages wherever applicable, and any other reasonable determinations this
honorable court deems just and proper. Plaintiff also demands any equitable
remedies against Defendants, including Building Official for the City of Delray
Beach, which is under an interlocal agreement with the Town of Gulf Stream to
provide building inspection services for the Town but not limited to, rehearings
wherever applicable, the imposition of procedural safeguards wherever
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applicable for same, the imposition of federal oversight under the Fourteenth
Amendment wherever applicable, and any other reasonable equitable or
remedial actions this honorable court deems just and proper.
I HEREBY CERTIFY that a true & correct copy was furnished, via electronic
filing, on October 16, 2013.
36
ROBERTS. GERSHMAN, ESQUIRE
2160 W. Atlantic Avenue, 2d FL
Delray Beach, FL 33445
(561) 684 -8898 (telephone)
robert @rglawfirm.us
s// Robert Gershman
ROBERT S. GERSHMAN
Florida Bar No. 917397