HomeMy Public PortalAboutPRR 14-1862Kelly Avery
From:
Kerry Kilday <Kilday @udkstudios.com>
Sent:
Monday, June 23, 2014 8:45 AM
To:
Ken Turn
Subject:
FW: PUBLIC RECORDS REQUEST - 2520 AAS GS - Sending mail server found on DNS
Blacklist cache
From: freddy farnsworth [ frederick .freddy.farnsworth @gmail.com]
Sent: Sunday, June 22, 2014 9:07 PM
To: Anne Booth
Cc: Kerry Kilday
Subject: PUBLIC RECORDS REQUEST - 2520 AAS GS - Sending mail server found on DNS Blacklist cache
This email is a Public Record Request of public records in the possession of Urban Design Kilday Studios. If you are not
the Custodian of Records for this entity, please forward this email to the Custodian of Records for Urban Design Kilday
Studios, 477 S. Rosemary Avenue Suite 225, West Palm Beach, Florida 33401
Dear Custodian of Records for Urban Design Kilday Studios,
This is a PUBLIC RECORDS REQUEST pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119.07 of
the Florida Statutes. I wish to make a public records request of your agency for the following records:
Any notes memos, reports, emails, photos, invoices, letters or any other records related to 2520 Avenue Au Soleil for the
Town of Gulf Stream.
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)(0 of the Florida Statutes.
Please take note of §119.07(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 your agency whether such a record exists and, if so, the location at which the record
can be accessed." I am, therefore, requesting that you notify every individual in possession of records that may be
responsive to this public records request to preserve all such records on an immediate basis.
If any records are readily available, please produce those records first without waiting for all responsive records to be
available. Produce the less readily available records as soon as they are available.
If the public records being sought are maintained by 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 production of any of these public records to exceed $1.00 please notify me in advance of their
production 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. If any records may be produced
for less than $1.00, please produce those records first while waiting to obtain authorization from me to produce more
costly records. Do not incur any costs that you expect me to pay which are greater than $1.00 until first obtaining my
authorization to do so.
All responses to this public records request should be made in writing to the following email address:
frederick .freddy.farnsworthOgmail.com
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Photos 86, 87, 88, 91, 92, 98
These quality ornamental trees are either a variety of Tree Ligustrum ( Ligustrum spo.) or Cattley Guava
(Psidium cattleianum). The Cattley Guava trees are listed on the Florida Exotic Plants Council List of
Invasive Plants. The Cattley Guava trees are still sold commercially by many nurseries in south Florida.
The Ligustrum trees remain a favorite small ornamental tree of south Florida.
Photos 89, 90, 94, 96,
The majority of these small palms are Lady Palms (Rhapis soo.). They can become dense if grown is a
shady area. These planting areas appear too sunny for Lady Palms to perform optimally. The general
quality of the palms would be considered to not be Florida Number 1.
Photos 93, 95, 96, 97
There are two plants in these photographs. The Lady Palms (Rhapis spp.) appear again alongside a small
tree that is either a Royal Poinciana tree (Delonix regia) or a Jacaranda tree (Jacaranda ocutifolia). Both
of these trees grow to be medium size trees of about 50' x 50' size that lose their leaves during Winter.
If the trees were full size they might provide enough shade for the Lady Palms to perform optimally.
Photo 101
These quality tall hedge forming shrubs are a variety of Pitch Apple, probably known as Small Leaf Clusia
( Clusia guttifera).
Photos of 100, 101, 102 103, 104
These photos are of quality large Areca Palms (DVpsis lutescens) planted closely together to form a large
'hedge' or buffer to the adjacent street. These palms are under planted with what appear to be a
variety of bougainvillea (Bougainvillea sop.) , a favorite colorful vining or shrub like plant used
throughout southern Florida. The Bougainvillea plants perform best in full sun, and are also very tender
to the cold.
D RECEIVED
MAR 13 2014
Town of Gulfstream Fl.
APPLICATION FOR APPEAL OF FINAL ACTION OF PLANNING
& BUILDING ADMINISTRATOR
Date or Application
1. Project Information
3112/14
Fee: $400.00
Owner Name: Christ . O'Hare
Owner Signature:
Project Address: 2516 Avenue Au Solail, Gulf Stream, FL
Project Property Legal Description: Lot 36, Place Au Solell, PBC, FL _
Project Description as Requested (describe in detail) Revision request to
Permit No. 11-136068 to install a "solar- sandwich' metal roof (as
ALLOWED under Sections 163.04 FS, 163.08 FS & 193.624 FS,
especlaNy 163.04(1) - see copy of original pem* apple ation and
relevant regulations attachedg.
II. Final Action or Planning & Building Administrator Feb 14, 2014 denial of
our Feb 5, 2014 request to install a'solar- sandwich• metal roof (see
attached e-mit ffom Freda Defosse, Town of Gulf Stream, & a copy of
our original pemrit applkation)
Ill. Reason for Appeal Building Administrators denial is contrary to Florida
Statutes 163.04, in that a solar- sandwich metal roof is "an energy de-
vice based on renewable resources; and should be approved.
IV. Standards to he Addressed by Applicant:
(1) Acted in a manner inconsistent with the provisions of this Code or other
applicable local, state or federal law;
Building Administrator's denial is contrary to Sections 163.04 FS,
163.08 FS & 193.624 FS (copies aftached).
(2) Made erroneous findings of fact hosed on the evidence and testimony
placed before the final review authority at a public hearing;
N/A
(3) Failed to fully consider mitigating measures or revisions offered by the
applicant that would have brought the proposed project into compliance
with the applicable regulations.
Failure to consider Section 163.04, FS (see copy of relevant regu-
lations attached).
V. Please attach color swatch, pictures or plans showing the proposed
improvement.
See permit application attached.
Official Use Only
Public Hearing Dale:
Action:
tmsrot
e,wcosh.tkp F�.
*RECEIVED-4
FEB() i, 2014
Town of Gu!(s!; am F, ' !mod
[Will OF OELRR4 MM 1 I I
CITY OF DELRAY BEACH
tt REVISION REQUEST
Date 2- J 1 L4 Permit Number: i 13 6 0 6 5
Address Where Work Is Being Done (to include unit or bay number):
ZSZo R-UONti, AV SOL_fjL,
APPLICANT NAME. 1.140 ST(DQF}'M O kWLil Phone: (Sb►I 53 O-• 7 S C
Fax: ( �•) Z 6
Contact Person 5AtAG Cell Phone e: (,, ) 5'4_R_H4 zo
ray
ADDED CONSTRUCTION COST FOR THIS CHANGE $3 -7 avo
EXPLAINREVISION INSTFlU, "SoLft SPtN0Ldlct4" RWF 5X5M" Ar PFbtDroe-R(c
F) Lwl oN 5T4Uf d(, -sIMn Sit_ revr ct.00& ne/2 SaArz Tft MN__
f- t�r�naN N+a -,�aaL _
MC6f9I%Jb s PLYM&(Nr. rr0L ftTa) c CDN � t° S.' PMM I -ri =% Sif-R
s�R�o QS tv R£ A�YIMIAICA
NOTE To avoid delay, the revision needs to be clear on the (2) drawings submitted. The Plan
Reviewers may need the Job site plans
I understand a fee A charged in accordance with the City of Delray Beach LDR 2.421. The fee for a revision
iS S75 n0 for thp(fi shel, and $1 -DO for each additional revised sheet For ADDED CONSTRUCTION COST, the
fee will be ba the uilding Permit Fees
SIGNED
OFFICE USE ONLY
ROUTING: FEES:
PATH DEPT. APPROVED BY/DATE. REVISION FEE
PLAN REVIEWER
DATE
ADDED VALUE PERMIT FEE
5
OTHER FEES AS APPLICABLE
Parks: S
Public SWg3 S
Schools S
Road 5
Radon S
DPR $
Other S
TOTAL FEES DUE:
Rvsd 6110
Solar Sandwich Roof System
Photo Voltaic (PV) Film panels adhered to standing seam steel roof
panels applied over a channeled network of solar thermal collection
tubing.
Typical Section showing Schedule of Materials:
PV Film on steel standing seam roof covering over solar thermal collector network.
Example of solar thermal collector network prior to application of standing seam steel roof panels.
PV Film adhered to standing seam steel roof panels.
2 Views of partially completed Solar Sandwich Roof System
Note
• Exposed standing seem steel roof panels can be supplied by manufacturer In any color required by Tom
Code.
• PV Film panels are only available in dark blue.
• Owner's preference Is for steel panels to match the color of PV Film panels as closely as possible to
produce a unified appearance.
• System only functlons when all elements are present. PV Film can ONLY be applied to a standing seam
metal roof substrate.
163.04 Energy devices based on renewable resources. —
(1) Notwithstanding any provision of this chapter or other provision of general or special
law, the adoption of an ordinance by a governing body, as those terms are defined
in this chapter, which prohibits or has the effect of prohibiting the installation of
solar collectors clotheslines or other energy devices based on renewable
resources is expressly prohibited.
(2) A deed restriction, covenant, declaration, or similar binding agreement may not
prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy
devices based on renewable resources from being installed on buildings erected on the lots
or parcels covered by the deed restriction, covenant, declaration, or binding agreement. A
property owner may not be denied permission to install solar collectors or other energy
devices by any entity granted the power or right in any deed restriction, covenant,
declaration, or similar binding agreement to approve, forbid, control, or direct alteration of
property with respect to residential dwellings and within the boundaries of a condominium
unit. Such entity may determine the specific location where solar collectors may be installed
on the roof within an orientation to the south or within 450 east or west of due south if such
determination does not impair the effective operation of the solar collectors.
(3) In any litigation arising under the provisions of this section, the prevailing party shall
be entitled to costs and reasonable attorney's fees.
(4) The legislative intent in enacting these provisions is to protect the public health, safety,
and welfare by encouraging the development and use of renewable resources in order to
conserve and protect the value of land, buildings, and resources by preventing the adoption
of measures which will have the ultimate effect, however unintended, of driving the costs of
owning and operating commercial or residential property beyond the capacity of private
owners to maintain. This section shall not apply to patio railings in condominiums,
cooperatives, or apartments.
Page 1 of 12
History. —s. 8, ch. 80 -163; s. 1, ch. 92 -89; s. 14, ch. 93 -249; s. 1, ch. 2008 -191; s. 3, ch.
2008 -227.
163.08 Supplemental authority for improvements to real property. —
(1)(a) In chapter 2008 -227, Laws of Florida, the Legislature amended the energy goal of
the state comprehensive plan to provide, in part, that the state shall reduce its energy
requirements through enhanced conservation and efficiency measures in all end -use sectors
and reduce atmospheric carbon dioxide by promoting an increased use of renewable energy
resources. That act also declared it the public policy of the state to play a leading role in
developing and instituting energy management programs that promote energy
conservation, energy security, and the reduction of greenhouse gases. In addition to
establishing policies to promote the use of renewable energy, the Legislature provided for a
schedule of increases in energy performance of buildings subject to the Florida Energy
Efficiency Code for Building Construction. In chapter 2008 -191, Laws of Florida, the
Legislature adopted new energy conservation and greenhouse gas reduction comprehensive
planning requirements for local governments. In the 2008 general election, the voters of
this state approved a constitutional amendment authorizing the Legislature, by general law,
to prohibit consideration of any change or Improvement made for the purpose of improving
a property's resistance to wind damage or the installation of a renewable energy source
device in the determination of the assessed value of residential real property.
(b) The Legislature finds that all energy- consuming- improved properties that are not using
energy conservation strategies contribute to the burden affecting all improved property
resulting from fossil fuel energy production. Improved property that has been retrofitted
with energy - related qualifying improvements receives the special benefit of alleviating the
property's burden from energy consumption. All improved properties not protected from
wind damage by wind resistance qualifying improvements contribute to the burden affecting
all improved property resulting from potential wind damage. Improved property that has
been retrofitted with wind resistance qualifying improvements receives the special benefit of
Page 2 of 12
reducing the property's burden from potential wind damage. Further, the installation and
operation of qualifying improvements not only benefit the affected properties for which the
improvements are made, but also assist in fulfilling the goals of the state's energy and
hurricane mitigation policies. In order to make qualifying improvements more affordable
and assist property owners who wish to undertake such improvements, the Legislature finds
that there is a compelling state interest in enabling property owners to voluntarily finance
such improvements with local govemment assistance.
(c) The Legislature determines that the actions authorized under this section, including,
but not limited to, the financing of qualifying improvements through the execution of
financing agreements and the related imposition of voluntary assessments are reasonable
and necessary to serve and achieve a gomoellina state inter and are necessary for the
prosperity and welfare of the state and its property owners and inhabitants.
(2) As used in this section, the term:
(a) "Local government" means a county, a municipality, a dependent special district as
defined in s. 189.403, or a separate legal entity created pursuant to s. 163.01(7).
(b) "Qualifying improvement" includes any:
1. Energy conservation and efficiency improvement, which is a measure to reduce
consumption through conservation or a more efficient use of electricity, natural gas,
propane, or other forms of energy on the property, including, but not limited to, air sealing;
installation of insulation; installation of energy - efficient heating, cooling, or ventilation
systems; building modifications to increase the use of daylight; replacement of windows;
Installation of energy controls or energy recovery systems; installation of electric vehicle
charging equipment; and installation of efficient lighting equipment.
2. Renewable energy improvement, which is the installation of any system in which the
electrical, mechanical, or thermal energy is produced from a method that uses one or more
of the following fuels or energy sources: hydrogen, solar enemy, geothermal energy,
bioenergy, and wind energy.
Page 3 of 12
3. Wind resistance improvement, which includes, but is not limited to:
a. Improving the strength of the roof deck attachment;
b. Creating a secondary water barrier to prevent water intrusion;
c. Installing wind - resistant shingles;
d. Installing gable -end bracing;
e. Reinforcing roof -to -wall connections;
f. Installing storm shutters; or
g. Installing opening protections.
(3) A local government may levy non -ad valorem assessments to fund qualifying
improvements,
(4) Subject to local government ordinance or resolution, a property owner may apply to
the local government for funding to finance a qualifying improvement and enter into a
financing agreement with the local government. Costs incurred by the local government for
such purpose may be collected as a non -ad valorem assessment. A non -ad valorem
assessment shall be collected pursuant to s. 197.3632 and, notwithstanding s.
197.3632(8)(a), shall not be subject to discount for early payment. However, the notice and
adoption requirements of s. 197.3632(4) do not apply if this section is used and complied
with, and the intent resolution, publication of notice, and mailed notices to the property
appraiser, tax collector, and Department of Revenue required by s. 19 . 32(3)(a) may be
provided on or before August 15 in conjunction with any non -ad valorem assessment
authorized by this section, if the property appraiser, tax collector, and local government
agree.
(5) Pursuant to this section or as otherwise provided by law or pursuant to a local
government's home rule power, a local government may enter into a partnership with one
or more local governments for the purpose of providing and financing qualifying
improvements.
Page 4 of 12
(6) A qualifying improvement program may be administered by a for -profit entity or a not -
for- profit organization on behalf of and at the discretion of the local government.
(7) A local government may incur debt for the purpose of providing such improvements,
payable from revenues received from the improved property, or any other available revenue
source authorized by law.
(8) A local government may enter into a financing agreement only with the record owner
of the affected property. Any financing agreement entered into pursuant to this section or a
summary memorandum of such agreement shall be recorded in the public records of the
county within which the property is located by the sponsoring unit of local government
within 5 days after execution of the agreement. The recorded agreement shall provide
constructive notice that the assessment to be levied on the property constitutes a lien of
equal dignity to county taxes and assessments from the date of recordation.
(9) Before entering into a financing agreement, the local government shall reasonably
determine that all property taxes and any other assessments levied on the same bill as
property taxes are paid and have not been delinquent for the preceding 3 years or the
property owner's period of ownership, whichever is less; that there are no involuntary liens,
including, but not limited to, construction liens on the property; that no notices of default or
other evidence of property-based debt delinquency have been recorded during the
preceding 3 years or the property owner's period of ownership, whichever is less; and that
the property owner is current on all mortgage debt on the property.
(10) A qualifying improvement shall be affixed to a building or facility that is part of the
property and shall constitute an improvement to the building or facility or a fixture attached
to the building or facility. An agreement between a local government and a qualifying
property owner may not cover wind - resistance improvements in buildings or facilities under
new construction or construction for which a certificate of occupancy or similar evidence of
substantial completion of new construction or improvement has not been issued.
Page 5 of 12
(11) Any work requiring a license under any applicable law to make a qualifying
improvement shall be performed by a contractor properly certified or registered pursuant to
part I or part II of chapter 489.
(12)(a) Without the consent of the holders or loan servicers of any mortgage encumbering
or otherwise secured by the property, the total amount of any non -ad valorem assessment
for a property under this section may not exceed 20 percent of the just value of the
property as determined by the county property appraiser.
(b) Notwithstanding paragraph (a), a non -ad valorem assessment for a qualifying
improvement defined in subparagraph (2)(b)1. or subparagraph (2)(b)2. that is supported
by an energy audit is not subject to the limits in this subsection if the audit demonstrates
that the annual energy savings from the qualified improvement equals or exceeds the
annual repayment amount of the non -ad valorem assessment.
(13) At least 30 days before entering into a financing agreement, the property owner shall
provide to the holders or loan servicers of any existing mortgages encumbering or otherwise
secured by the property a notice of the owner's intent to enter into a financing agreement
together with the maximum principal amount to be financed and the maximum annual
assessment necessary to repay that amount. A verified copy or other proof of such notice
shall be provided to the local government. A provision in any agreement between a
mortgagee or other lienholder and a property owner, or otherwise now or hereafter binding
upon a property owner, which allows for acceleration of payment of the mortgage, note, or
lien or other unilateral modification solely as a result of entering into a financing agreement
as provided for in this section is not enforceable. This subsection does not limit the authority
of the holder or loan servicer to increase the required monthly escrow by an amount
necessary to annually pay the qualifying improvement assessment.
(14) At or before the time a purchaser executes a contract for the sale and purchase of
any property for which a non -ad valorem assessment has been levied under this section and
has an unpaid balance due, the seller shall give the prospective purchaser a written
Page 6 of 12
disclosure statement in the following form, which shall be set forth in the contract or in a
separate writing:
QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY, RENEWABLE ENERGY, OR WIND RESISTANCE. —The
property being purchased is located within the jurisdiction of a local government that has placed an
assessment on the property pursuant to s. 163.08. Florida Statutes. The assessment is for a qualifying
improvement to the property relating to energy efficiency, renewable energy, or wind resistance, and
is not based an the value of property. You are encouraged to contact the county property appraiser's
office to learn more about this and other assessments that may be provided by law.
(15) A provision in any agreement between a local government and a public or private
power or energy provider or other utility provider is not enforceable to limit or prohibit any
local government from exercising its authority under this section.
(16) This section is additional and supplemental to county and municipal home rule
authority and not in derogation of such authority or a limitation upon such authority.
History. —s. 1, ch. 2010 -139; s. 1, ch. 2012 -117.
1193.624 Assessment of residential property. —
(1) As used in this section, the term "renewable energy source device" means any of the
fallowing equipment that collects, transmits, stores, or uses solar energy, wind energy, or
energy derived from geothermal deposits:
(a) Solar energy collectors, photovoltaic modules, and inverters.
(b) Storage tanks and other storage systems, excluding swimming pools used as storage
to nks.
(c) Rockbeds.
(d) Thermostats and other control devices.
(e) Heat exchange devices.
(f) Pumps and fans.
Page 7 of 12
(g) Roof ponds.
(h) Freestanding thermal containers.
(i) Pipes, ducts, refrigerant handling systems, and other equipment used to interconnect
such systems; however, such equipment does not include conventional backup systems of
any type.
(j) Windmills and wind turbines.
(k) Wind -driven generators.
(1) Power conditioning and storage devices that use wind energy to generate electricity or
mechanical forms of energy.
(m) Pipes and other equipment used to transmit hot geothermal water to a dwelling or
structure from a geothermal deposit.
(2) In determining the assessed value of real property used for residential purposes, an
increase in the just value of the property attributable to the installation of a renewable
energy source device may not be considered.
(3) This section applies to the installation of a renewable energy source device installed on
or after January 1, 2013, to new and existing residential real property.
History. —s. 1, ch. 2013 -77.
'Note. — Section 8, ch. 2013 -77, provides that "[t]his act shall take effect July 1, 2013, and
applies to assessments beginning January 1, 2014."
366.91 Renewable energy. —
(1) The Legislature finds that it is in the public interest to promote the development of
renewable energy resources in this state. Renewable energy resources have the potential to
help diversify fuel types to meet Florida's growing dependency on natural gas for electric
production, minimize the volatility of fuel costs, encourage investment within the state,
improve environmental conditions, and make Florida a leader in new and innovative
technologies.
(2) As used in this section, the term:
Page 8 of 12
(a) "Biomass" means a power source that is comprised of, but not limited to, combustible
residues or gases from forest products manufacturing, waste, byproducts, or products from
agricultural and orchard crops, waste or coproducts from livestock and poultry operations,
waste or byproducts from food processing, urban wood waste, municipal solid waste,
municipal liquid waste treatment operations, and landfill gas.
(b) "Customer -owned renewable generation" means an electric generating system located
on a customer's premises that is primarily intended to offset part or all of the customer's
electricity requirements with renewable energy.
(c) "Net metering" means a metering and billing methodology whereby customer -owned
renewable generation is allowed to offset the customer's electricity consumption on site.
(d) "Renewable energy" means electrical energy produced from a method that uses one or
more of the following fuels or energy sources: hydrogen produced from sources other than
fossil fuels, biomass, solar energy, geothermal energy, wind energy, ocean energy, and
hydroelectric power. The term includes the alternative energy resource, waste heat, from
sulfuric acid manufacturing operations and electrical energy produced using pipeline - quality
synthetic gas produced from waste petroleum coke with carbon capture and sequestration.
(3) On or before January 1, 2006, each public utility must continuously offer a purchase
contract to producers of renewable energy. The commission shall establish requirements
relating to the purchase of capacity and energy by public utilities from renewable energy
producers and may adopt rules to administer this section. The contract shall contain
payment provisions for energy and capacity which are based upon the utility's full avoided
costs, as defined in s. 366.051; however, capacity payments are not required if, due to the
operational characteristics of the renewable energy generator or the anticipated peak and
off -peak availability and capacity factor of the utility's avoided unit, the producer is unlikely
to provide any capacity value to the utility or the electric grid during the contract term. Each
contract must provide a contract term of at least 10 years. Prudent and reasonable costs
associated with a renewable energy contract shall be recovered from the ratepayers of the
Page 9 of 12
contracting utility, without differentiation among customer classes, through the appropriate
cost - recovery clause mechanism administered by the commission.
(4) On or before January 1, 2006, each municipal electric utility and rural electric
cooperative whose annual sales, as of July 1, 1993, to retail customers were greater than
2,000 gigawatt hours must continuously offer a purchase contract to producers of renewable
energy containing payment provisions for energy and capacity which are based upon the
utility's or cooperative's full avoided costs, as determined by the governing body of the
municipal utility or cooperative; however, capacity payments are not required if, due to the
operational characteristics of the renewable energy generator or the anticipated peak and
off -peak availability and capacity factor of the utility's avoided unit, the producer is unlikely
to provide any capacity value to the utility or the electric grid during the contract term. Each
contract must provide a contract term of at least 10 years.
(5) On or before January 1, 2009, each public utility shall develop a standardized
interconnection agreement and net metering program for customer -owned renewable
generation. The commission shall establish requirements relating to the expedited
interconnection and net metering of customer -owned renewable generation by public
utilities and may adopt rules to administer this section.
(6) On or before July 1, 2009, each municipal electric utility and each rural electric
cooperative that sells electricity at retail shall develop a standardized interconnection
agreement and net metering program for customer -owned renewable generation. Each
governing authority shall establish requirements relating to the expedited interconnection
and net metering of customer -owned generation. By April 1 of each year, each municipal
electric utility and rural electric cooperative utility serving retail customers shall file a report
with the commission detailing customer participation in the interconnection and net
metering program, including, but not limited to, the number and total capacity of
interconnected generating systems and the total energy net metered in the previous year.
Page 10 of 12
(7) Under the provisions of subsections (5) and (6), when a utility purchases power
generated from biogas produced by the anaerobic digestion of agricultural waste, including
food waste or other agricultural byproducts, net metering shall be available at a single
metering point or as a part of conjunctive billing of multiple points for a customer at a single
location, so long as the provision of such service and its associated charges, terms, and
other conditions are not reasonably projected to result in higher cost electric service to the
utility's general body of ratepayers or adversely affect the adequacy or reliability of electric
service to all customers, as determined by the commission for public utilities, or as
determined by the governing authority of the municipal electric utility or rural electric
cooperative that serves at retail.
(8) A contracting producer of renewable energy must pay the actual costs of its
interconnection with the transmission grid or distribution system.
History. —s. 1, ch. 2005 -259; s. 41, ch. 2008 -227; s. 16, ch. 2010 -139.
377.803 Definitions. —As used in ss. 377.801 - 377.807, the term:
(1) "Act" means the Florida Energy and Climate Protection Act.
(2) "Department" means the Department of Agriculture and Consumer Services.
(3) "Person" means an individual, partnership, joint venture, private or public corporation,
association, firm, public service company, or any other public or private entity.
(4) "Renewable energy" means electrical, mechanical, or thermal energy produced from a
method that uses one or more of the following fuels or energy sources: hydrogen, biomass,
as defined in s. 366.91, solar enerov, geothermal energy, wind energy, ocean energy, waste
heat, or hydroelectric power.
(5) "Renewable energy technology" means any technology that generates or utilizes a
renewable energy resource.
(6) "Solar energy system" means equipment that provides for the collection and use of
incident solar energy for water heating, space heating or cooling, or other applications that
would normally require a conventional source of energy such as petroleum products, natural
Page 11 of 12
gas, or electricity that performs primarily with solar energy. In other systems in which solar
energy is used in a supplemental way, only those components that collect and transfer solar
energy shall be included in this definition.
(7) "Solar photovoltaic system" means a device that converts incident sunlight into
electrical current.
(8) "Solar thermal system" means a device that traps heat from incident sunlight in order
to heat water.
History. —s. 4, ch. 2006 -230; s. 59, ch. 2008 -227; s. 516, ch. 2011 -142.
Page 12 of 12
From: Freda Defosse <fdefossengulf- stream.ora>
Date: Fri, Feb 14, 2014 at 10:56 AM
Subject: RE: vertical axis wind turbine application
To: Chris O'Hare < chrisohareoulfstreamlMomail.com>
Dear Mr. O'Hare.
Your application for a permit for a solar sandwich roof system to be installed at 2520 Avenue Au
Soleil, submitted on February 5, 2014, has been denied because the Town's Code of
Ordinances expressly prohibits metal roofs within the Town within Section 70-99 (3) and Section
70 -187. As such, metal roofs are not permitted under the Town's Code.
Freda DeFosse
Administrative Assistant
Town of Gulf Stream
TOWN OF GULF STREAM EMAIL DISCLAIMER:
PLEASE NOTE: Florida has a very broad public records law. Most written
communication to or from local officials regarding town business is considered public
records and available to the public and media upon request. Your email communications
may therefore be subject to public disclosure.
Kelly Avery
From: Randolph, John C. <JRandolph @jonesfoster.com>
Sent: Monday, January 06, 2014 2:01 PM
To: Marty Minor
Subject: RE: Gulf Stream permit review
Attachments: SDOC2146.pdf
ATTORNEY CLIENT PRIVILEGE — SEE ATTACHED.
JONESFOSTER
w11N5MN& tveal,rn.
John C. Randolph Attorney
Direct Dial: 561.650.0458 1 Pas: 561.650.5300 1 irandolph@ionesfoster.com
Jones, Foster, Johnston & Snihh<. P.A.
Hagler Center Tone i wler Drive, Suite 1100, West Palm Beach, Florida 13 101
561 - 659 -3000 1 www.jonesfoster.eom
U.S. Treasure 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 entails are filtered which mae 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, dissetnination, or copying
of this email is prohibited please immediately notify us by email and delete die original message.
From: Marty Minor [mailto:MMinor @udkstudios.com]
Sent: Monday, January 06, 2014 12:00 PM
To: Randolph, John C.
Subject: Gulf Stream permit review
Skip,
Happy New Year and I hope you had a good holiday break.
I've been reviewing the permit application for the power - generating windmill at 2520 Avenue Au Soled. After reviewing
the code, I don't believe this use is allowed.
Within the Place Au Soleil zoning district, only single family homes are permitted. In order to be permitted, the windmill
would have to be considered as an accessory use.
In Section 66 -1 of the Town Code, accessory use is defined as:
Accessory building, structure or use shall mean a building, structure or use on the same lot with, and of a nature
customarily incidental and subordinate to, the principal building, structure or use.
I don't believe that a windmill would qualify as an accessory structure or use as it is not "customarily" or traditionally
used with a single family home in the Town. Also, windmill are not considered within the Accessory Uses /Structures
discussed in Section 66 -366 to 66 -370 of the Town Code. I am not aware of existing windmills in the Town. I also had
the opportunity to check with Palm Beach County to see if they had any regulations regarding personal windmills. The
County doesn't have any regulations for windmills as an accessory use — largely because they haven't had request for
personal windmills. The County only has regulations regarding the large (100 ft. +) windmills as a primary use.
I believe the homeowner will need to request an amendment to the Town Code to allow for a windmill on his
property. In considering a text amendment, the Town will need to look at the impacts of height, noise, aesthetics,
wildlife and appropriateness for a single family neighborhood. For example, the manufacturer information submitted
with the permit application recommends that the windmill be located 250 feet away from obstacles, including trees and
houses. The homeowner is proposing to place the windmill 25 feet from the property line and about 35 feet from his
house.
Let me know what you think. If you don't have any concerns with the above position, I will draft a memo regarding the
permit for the Town.
Thank you,
marty
Marty R.A. Minor, AICP
Urban Design Kilday Studios
The Offices at City Place North
477 South Rosemary Avenue, Suite 225
West Palm Beach, Florida 33401 -5758
561- 366 -1100
urban The Offices at CityPlace North ph. (561) 366.1100
.S�' n 477 S. Rosemary Avenue, Suite 225 f. )561) 366.1111
U west Palm Beach, Florida 33401 www.udkstudios.com
ki I -
S T U D I O S Urban Planning and Design I Landscape Architecture I Communication Graphics
JONES FOSTER
JOHNSTON &STUBBS, P.A.
Memo
To:
John C. Randolph
From:
Kelly A. Gardner
Date:
January 3, 2014
Subject:
Windmill Building Request
Question Presented:
Under Florida law, may a municipality regulate the installation of a windmill on a
homeowner's property?
Discussion:
It is unlikely that the Town of Gulf Stream ( "the Town ") will be able to prohibit Mr.
O'Hare's Building Permit Revision Request to build a windmill; however, certain Town
regulations, such as zoning ordinances, may be permitted. A municipality has no
authority to prohibit the installation of a windmill on a homeowner's property since it is
an energy device based on renewable resources. Section 163.04 of the Florida Statutes
restricts the authority of a municipality to regulate energy devices based on renewable
resources. The statute forbids governing bodies from enacting or enforcing ordinances,
deed restrictions, covenants, or similar binding agreements that prohibit or have the
effect of prohibiting the installation of "solar collectors, clotheslines, or other energy
devices based on renewable resources." Section 163.04(2) provides, in pertinent part:
"A property owner may not be denied permission to install solar collectors
or other energy devices by any entity granted the power or right in any
deed restriction, covenant, declaration, or similar binding agreement to
approve, forbid, control, or direct alteration of property with respect to
residential dwellings and within the boundaries of a condominium unit."
§ 163.04(2) Fla. Stat. (2013). Thus, under this statute, the Town may not prevent Mr.
O'Hare from installing a windmill on his property.
However, while a municipality may not prevent the installation of an energy
device based on renewable resources, the application of some municipal regulations
has been permitted so long as it does not interfere with the satisfactory performance of
the energy device. For example, in City of Ormond Beach v. State, a homeowner
applied for height and side -yard zoning variances to allow him to install a windmill on his
property that would exceed the permitted height and be located closer to his property
January 3, 2014
Page 2
line than normally allowed. See 426 So. 2d 1029, 1030 -31 (Fla. 4th DCA 1983). The
court held:
"Section 163.04 eliminates the need to prove a hardship as a basis for the
property owner's desire to install the energy device, but it does not,
however, mean that appellee can place the windmill where he pleases or
to such height as he pleases. He must still abide by the setback and
height restrictions of the zoning ordinance, unless he can demonstrate the
requisites for a variance; Le , that the variance is needed so that the
windmill can operate satisfactorily"
Id. at 1032. The court explained that section 163.04 did not entitle the homeowner to
variances necessary for "optimum performance" of the windmill; but rather, the
homeowner must comply with zoning regulations as long as the energy device still
performed satisfactorily. See Id.
Therefore, here, the Town cannot prohibit the building of a windmill, but the Town
may require Mr. O'Hare to comply with Town regulations, such as zoning ordinances, as
long as the windmill can operate satisfactorily.
11J(spl2\apps\dors \13147 \00001\mem \ihv2940 dou
561- 737 -0188 town of gulf stream 09:25:57 a.m. 04 -04 -2013 116
FAX Cover Sheet
Marty Minor
Urban Design Kilday
Phone:
Fax Phone: 366 -1111
Date: 4-4-13
(Number ofpages including cover sheet.- 6
Rita
rnone: 561- 276 -5776
Fax Phone: 561- 737 -0788
IREMARKS: ❑ As Requested ❑ Urgent ❑ FYI ❑ For Your Review ❑ Reply ASAP
I have enclosed a copy of the Special Magistrate's findings
in the O'Hare Case.
)riginals to Follow by Mail: Yes
CC:
Fax Phone:
No x
5b1- /i / -utae town at suit stream 09:26:06 a.m. 04 -04 -2013 216
CODE ENFORCEMENT ORDER
TOWN OF GULF STREAM, FLORIDA
TOWN OF GULF STREAM,
Petitioner,
VA
CHRISTOPHER O'HARE and
SHELLY O'HARE,
Respondent.
Case No. CE 1 -13
Re: Violation of Sections 58- 138(6), 70- 32(a), 70- 146(6) and 70 -150, of the Code of Ordinances of
the Town of Gulf Stream.
Address: 2520 Avenue Au Soleil
, Gulf Stream, Florida
Legal Description: PLACE AU SOLEIL LT 36
The Special Magistrate appointed by the Town Council to hear code enforcement cases for
the Town of Gulf Stream, in accordance with Chapter 162, Florida Statutes, has heard and
considered testimony from Bill Thrasher (Town Manager), Marty Minor, Christopher O'Hare
(Respondent), and Craig Stresau, has considered the evidence, and argument of counsel for each
party at the Code Enforcement Hearing held on the 21't day of March, 2013, and being otherwise
fully apprised in the premises, hereby makes the following FINDINGS OF FACT, CONCLUSIONS
OF LAW, and ORDER:
FINDINGS OF FACT
The Respondent, CHRISTOPHER O'HARE, was present at the hearing and represented by
Counsel.
561- 737 -0188 town of gulf stream 09:26:17 a.m. 04 -04 -2013 3/6
2. The Town of Gulf Stream was present at the hearing and represented by counsel.
3. Respondent is the owner of the property located at 2520 Avenue Au Soleil, Gulf Stream,
Florida (Legal Description PLACE AU SOLEIL LT 36) (the "Property").
4. The Town Manager was notified of the potential violations on the Property by a Town
maintenance worker.
5. The Town received input from members the home owners' association after being notified of
the potential violations by the Town's maintenance worker.
6. The maintenance worker took photographs of the alleged violations on October 8, 2012,
7. The photographs show a line of lady palms planted across the driveway of the Property.
8. Thereafter, the Town Manager personally viewed the alleged violations on the Property and
consulted with Marty Minor, A1CP, of Urban Design Kilday Studios, which had originally
drafted the Town's Code of Ordinances relating to the Design Manual.
9. Mr. Minor personally visited the Property on October 10, 2012, and took photographs.
10. On October 16, 2012, Mr. Minorprovided an opinion to the Town regarding the plantings and
his opinion as to whether the plantings complied with the Town's Code.
11. On November 5, 2012, the Town issued a Notice of Violation regarding sections 58- 138(b)
70- 32(a), 70- 146(6) and 70 -150, of the Code of Ordinances of the Town of Gulf Stream,
providing thirty (30) days for compliance.
12. On January 17, 2013, the Town provided additional time for Respondent to comply, to wit:
January 31, 2013.
13. On February 25, 2013, the Town issued allotice of Violation and Notice of Hearing providing
Respondent a final opportunity to comply on or before March 12, 2013,
14. The Town Manager and Mr. Minor testified that plantings across the Property's driveway did
not comply with the "open front lawn" characteristic of the Place Au Soleil District where the
Property is located because the home and front door are not open to, or viewable from, the
street.
15. Respondent testified that there are 31 "closed" front lawns in the Place Au Soleil
District.
16, The Town Manager testified that there may be some "closed" front lawns within Place An
Soleil District due to having been "grandfathered in" prior to the changes in the Town's Code
561- 737 -0188 town of gulf stream 09:26:35 a.m. 04 -04 -2013 416
regarding landscape design.
17. Mr. Stresau, a landscape architect, testified that he did not believe the Townproperly defined
"open front lawn" and believed it could also mean that the lawn in front of the plantings and
behind the plantings was "open ".
18. The Town Manager testified that Respondent previously applied for a permit in November of
2011 to change the exterior color of his home and an exterior wall. The Town Manager
testified that the form on which Respondent signed provided for a list of different types of
projects requiring review, including those involving "landscape alterations ", which he testified
was indicated in Section 66 -81 of the Town's Code.
19. Respondent was not cited for failure to apply for administrative review or failure to get a
permit for landscaping changes under Section 66 -81.
20. Mr. Minor testified that if a plant were not on the list in Section 70 -150, then it could not be
planted.
21. The Respondent testified that he did not think the list in Section 70 -150 was exhaustive and did
not believe that non - listed plants were prohibited.
22. Mr. Stresau, a landscape architect, testified that if the Town's Code listing of examples in
Section 70 -150 of plants were an exclusive list, for which all other plants were prohibited, it
would be impossible to develop a landscape plan from that list for a homeowner.
23. Mr, Thrasher testified that certain properties were allowed to install plants not on the list in
Section 70 -150, but those landscape plans followed the proper permitting process and were
approved through that process.
24. The Respondent was provided proper notice of the alleged violations and the notice of hearing
in this case..
25. At the time of the hearing, the alleged violations continued to exist.
CONCLUSIONS OF LAW
1. Section 58- 138(b) of the Town's Code provides that It shall be unlawful for any person to
remove, move or add soil or fill to or from any parcel of land located within the town without
first having obtained a permit from the Town. The Town alleged that Respondent's removal of
561- 737 -0188 town of gulf stream 09:26:51 a.m. 04 -04 -2013 516
a portion of the driveway required obtaining a permit. Respondent argued that pursuant to
Code Section 2 -68, Jurisdiction, the Special Magistrate does not have jurisdiction to hear a
violation of Code Section 58- 138(b). Code Section 2 -68 provides the special magistrate with
jurisdiction and authority to hear and decide any alleged violations of the chapters and
ordinances listed therein. Neither Chapter 58, nor Section 58 -138, is listed as being within the
special magistrate's jurisdiction. Accordingly, the special magistrate does not have jurisdiction
to make a determination with respect to the alleged violation relating to Section 58- 138(b).
2. Section 70 -146 provides the Purpose of the General Landscape Standards and slates that the
landscape architectural standards have been developed to reinforce the overall character and
image of the town environment with the primary objectives to include reinforcing the
community's identity. It goes on to state that the correct selection of plant material reinforces
the identity of various districts. Section 70 -32 provides for the characteristics of Place Au
Soleil District. The characteristics include `open front lawns ". The Town provided substantial
competent evidence that it has consistently interpreted "open front lawns" to mean the home
and front door being viewable from the street. The Town's interpretation is afforded deference
in this instance. Las Olas Tower Co. v. City offort Lauderdale, 742 So. 2d 308, 312 (Fla. 4"
DCA 1999). Accordingly, a violation of Sections 70 -146 and 70 -32 are found to exist.
3. Section 70 -150 provides for other plants used in the Town and lists "examples of materials
presently found in the Town" far ground cover, tall shrubs, shrubs, vines, palms, and trees.
The Town did not present competent substantial evidence that Section 70 -150 prohibits all
other types of plants not listed. The Code clearly states that the list of plants is a list of
examples of currently existing plants. Accordingly, a violation of Section 70 -150 is not found
to exist.
4. While both parties presented testimony and evidence regarding whether a permit was required
for the landscaping work, Respondent was not cited for violation of a code section relating to
failure to obtain a permit. Accordingly, this order shall not be construed as a determination of
whether the Respondent should have obtained administrative review, approval or a permit
relating to the plantings cited in this case.
town ar gu IT stream e9:21: 11 a.m. 04 -e4 -2019 h/a
It is the Order of the Code Enforcement Special Magistrate as follows:
1. The alleged violation relating to section 58- 138(b) is hereby dismissed without prejudice for
lack of jurisdiction.
2. Respondent shall comply with Sections 70 -146 and 70 -32 of the Code of Ordinances of the
Town of Gulf Stream on or before the 20"h day of April, 2013, by removing the plantings in
the driveway and other areas that block the view of the home and return it to the previously
existing condition.
3. If Respondent does not comply with Sections 70 -146 and 70 -32 of the Code of Ordinances of
the Town of Gulf Stream on or before the 191h day of April, 2013, a fine of up to two- hundred-
fifty- dollars ($250.00) per day may be assessed for each day the violation continues to exist.
4. A Fine Assessment Hearing will be held before the Special Magistrate on the 23rd day of
April, 20131 at the Town of Gulf Stream, 100 Sea Road, Gulf Stream, Florida.
5. Respondent is not in violation of Section 70 -150 of the Code of Ordinances of the Town of
Gulf Stream.
A certified copy of this Order may be recorded in the Public Records of Palm Beach County, Florida,
and, once recorded, shall constitute a lien against the property upon which the violation existed and
upon any other real or personal property owned by the Respondent, pursuant to Chapter 162, Florida
Statutes for the original amount.
Upon complying, it is the responsibility of the Respondents to immediately notify the Gulf
Stream Code Enforcement Clerk at (561) 276 -5116 to request a reinspection of the property.
DONE AND ORDERED this 2 "d day of April, 2013.
TOWN OF GULF STREAM
CO�FORCEMENT
BY:
Special Magistrate
2 :55 oM
Case 9:13 -cv- 81053 -KLR Document 3 Entered on FLSD Docket 10/17/2013 Page 8 of 8
�0- a14.Z113
Ail I w tam 'kJ 12' Sftnnlaa 0l a Civil M110c
UNI fED STATES DISTRIC'C COURT cPsff IZV 4
for the
Southern D1SIXICIL of Florida
CHRIS O'HARE
TluMt;tJjz)
TOWN OF Out F STREAM el at
0"r,nd=rs)
Ctvll AVIlalI Vu. 13- CV•91051
St MMONS IN A CIVIL ACTION'
To elk(indanr < mane amladdnlr) MARTY MINOR
Inhan Design Kilday Studios
477 S. Rosemary Avenue
#225
West Palm Beach. Florida 33401
A lawsutl has Item filed agmns+ you
Within :I days after service of this anitlmnns on you (not counting the day you received it) — or 00 days if you
are the united States or a Untied Stares agency. or an ofticer or employee of The United States descrihed in Fed It C tv
P 12 (W1 or (S) — you must serve on the plaintiff an answer to the artaehed complaint oz it motion under Rule 12 of
the icdnrel Rules of Ctv 11 prncrdnre The answer or motion must be set"d on the piamuff of plaintiff s attomey
whaw name and address are Robert Gershman, Esquire
2160 W Allanac Avenue
;ecotsrf Floor
Delray Beach. Florida 33446
(let) 561.604 -8896
robertQtglawirm. us
tf you full to respond, judirmcid by deauit will be enteted against you fox Rte relief demanded to the complaint
Ynu alto must file your answer or mou(m will, the court .
Steven M. Larimore
OCT 1 1 2013
Dare _
— �- .Upnantn of0erk or Llepao Clerk
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.
2
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,
Gore[, 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.
r
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 Ginsbera's Illeeal 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
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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.
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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 Soled, 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
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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
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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 Gore] if he could get work permits at a later date and if
Gore] could allow the workers to continue. Mr. O'Boyle then went on to ask Gorel 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 1 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.
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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 tile 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,
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in fact, authorizes metal roofs on single- family residences under certain circumstances.
Although Article V, section 70 -99(3) and Article VI, 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 Match 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 Rooffec,
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 Derng, 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 15ei
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.
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71. On or about January 28, 2013, the 15`h 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 150' 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) Illeeal 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 -0f - -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. Gore] 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, Gorel 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 01-lare, 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 An 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 Soleill
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 noncomplying 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 T'hrasher'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 Chanee
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 "OtherNarious ", 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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COUNT
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 1 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
21
1
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 22 of 36
subsequently denied O'Hare's exemption for a metal roof without any apparent cause
on May 30, 2012.
COUNT II
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 I 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.
22
,
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 23 of 36
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 1 through 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.
23
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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 1 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.
24
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 25 of 36
143. These actions caused O'Hare the aforementioned harm in Count I through Count VII
above.
COUNT VIH
Tortuous Interference with Contract
144. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs I 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 1 through Vlll above.
COUNT IX
Intrusion Upon Seclusion
146. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs 1 through 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.
25
1
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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 I 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 I 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.
26
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154. Town Manager Thrasher caused all of the harms noted in Count XI.
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 I 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 XII.
27
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COUNT XIV
Illegal 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 XII.
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 l through 164.
166. Gore], the Town, and Thrasher denied O'Hare equal protection when Gore], 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.
28
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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 Ithrough 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.
29
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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.
30
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 31 of 36
COUNT XVHI
Florida Negligent Hiring, Supervising, Training of Ginsberg, Corel, 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 engineers
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
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 32 of 36
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.
32
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 33 of 36
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.
33
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 34 of 36
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 Ithrough 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.
34
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/17/2013 Page 35 of 36
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
35
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10117/2013 Page 36 of 36
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.
1 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. GERS14MAN
Florida Bar No. 917397
I
JS 44 (R.y 12 12) CIVIL COVER SHEET
The IS 44 civil ca sheet and the mforra n wtat:wwd hensa neither rtrryylace, nor sup lemenl de IlluhgiMl SeM1'Iee of pleadings or other papa ¢5 R9WIcd Ill, Ia\\', actin as
prsvided hl local rules of court. Taus famh, apgnyrd by the Judicial CON'aatm of the United Slates to sr,Plonbsr 1974 is tegwsed for Use luc of the Clerk of Cow for die
plupnse ul'wualing lha: dull Juckcl dhcd ISE£ L1' S1RLi 'nO.v50. \:\E17PAGEOFINISFURlf1
1. (a) PLAINTIFFS
Chris O'Hare
(b) Cmmfy of Re idenceofFag LelrJPlutntll' Palm Beach
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2160 W Allanlic Avenue, 2d Floor
Delray Beach, Florida 33445
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1V. NATURE OF SUIT /Ptio,. %v, m(Jne Enr on/3'J
DEFENDANTS
Town Of Gulf Stream, Town Of Gulf Stream Commission, Town
Manager William Thrasher, Special Magistrate Lem Donlon, Officer
David Ginsberg, Sergeant Adam Gorel, Steven Tobias & Marty Minor
Comwol'Ruidm.ol'Ftrsl LiaeJI3,:1'sJAnt Palm Beach
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VII. REQUESTED IN 0 CIIECS IF TIRS IS A CLASS ACTION DEMANDS CHEC7C YES only if demanded in complaint
COMPLAINT: IJN0rk RULE 23,F.R.CV P. 2,400,000.00 JURY DEMAND: X Yes O No
VIII. RELATED CASE(S)
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VII. REQUESTED IN 0 CIIECS IF TIRS IS A CLASS ACTION DEMANDS CHEC7C YES only if demanded in complaint
COMPLAINT: IJN0rk RULE 23,F.R.CV P. 2,400,000.00 JURY DEMAND: X Yes O No
VIII. RELATED CASE(S)
IF ANY IS sa'.losib JLWE Donald Middlebrooks
n Dxa'RFr NTrnmFR 13- 60432- CV- Midd6brooks
10/16/2013
RECFSITa AUOLNT AI'Pt YNGIFP ' RIDGE MAG RTRSE
Case 9:13 -tv- 81053 -KLR Document 3 Entered on FLSD Docket 10/17/2013 Page 1 of B
�S S fM
AUAAnian rr /iii A01.
UNITED STATES DISTRICT COURT
for the C
Southern District of Fluridu
CHRIS O'HAHB
plwnWlhl
V.
TOWN OF GULF STREAM et rd
'__ _ IAJenJ,mlfs!
Civil Action No 13-CV -81053
SUNIMOYS IN A CIVIL ACTION
To rl4fondanr'.namrandnJJnn) TOWN OF GULF STREAM
c/o Joan Orthaein
Gulf StreamTown Hall
100 Sea Road
Gull Stream, Florida 33483
A lawewl has been filed against you
no
Wither 21 days after service of this summons on you (not counting the day you rei:eivud it) - or 60 days if you
are the t nited States or a United States spancy, or an ofrcer or employee of the United States described in Fed R Civ
P 12 (a)(2) or (3) -- you must serve on the platnttlf an answer to the attached complaint or a motion undo Rule 12 of
the Federal Rules of Civil Procedure The answcr or motion must be served on the plaintiff or platntitrs auomev,
. hose name and address are Robert Genhmn, Esquire
2180 W. Atlantic Avenue
Second Floor
Delray Beach, Florida 33445
(td) 561.884-8898
r Zartopgtawfem. us
If ymt fail to respond, judgment by default will be entered against you for the relief demanded in the complaint
You alw mien File your answer or motion with the court
Steven M. Ladmore
f LLRKUrC[JURT
Dee. OCT 17 2013 /
-- ,V Y/annrvm a /C7n1 or lkyne, Clrr!
A I
0
1544 (Rev.0921 CIVIL COVER SHEET
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Chris O'Hare
(b) Cuwuy ufaeidcnee ofFnn Limed NutnulT Palm Beach
tL7CEPT /.v US PL077FFC45ES1
DEVENLIAN15
Town Of Gulf Stream, Town Of Gulf Stream Commission, Town
Manager William Thrasher, Special Magistrate Lara Donlon, Officer
David Ginsberg, Sergeant Adam Gorel, Sloven Tobias 8 Marty Minor
County of RevdencenfFun Liud(kfwaLmt Palm Beach
i/Y L'S. YLdfirIFFC41ESO.AZI)
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CAUSE OF AM ON n.._r.l_.__.._ _r
_ I Deprivation of Constitullonal Rights Under the 14th Amendment
VII. REQUESTED IN O [BECK IFTHIS IS A CLASS ACTION DEMANDS CHECK YES lily Lr dcnmdd W danplanl
COMPLAINT: UNDER RULE D, F. R.Cv.P• 2,40D,000.00 JURY DEMAND: ZI Ye, 1 No
Vill. RELATEDCASE(S)
IF ANY j5eO1OniCl1O"' /' RgKC Donald Middlebrooks
_ n ISOCI:LT 1•rtlAmul 13- 80432- CV- Mkidletxnoks
10/1612013
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CAUSE OF AM ON n.._r.l_.__.._ _r
_ I Deprivation of Constitullonal Rights Under the 14th Amendment
VII. REQUESTED IN O [BECK IFTHIS IS A CLASS ACTION DEMANDS CHECK YES lily Lr dcnmdd W danplanl
COMPLAINT: UNDER RULE D, F. R.Cv.P• 2,40D,000.00 JURY DEMAND: ZI Ye, 1 No
Vill. RELATEDCASE(S)
IF ANY j5eO1OniCl1O"' /' RgKC Donald Middlebrooks
_ n ISOCI:LT 1•rtlAmul 13- 80432- CV- Mkidletxnoks
10/1612013
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.
2
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 overstate 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,
Gore], 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 Ginsbera's Illeeal 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. 1 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
0
Case 9:13 -cv- 81053 -XXXX Document 1 Entered on FLSD Docket 10/1712013 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 An 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
li
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 Gore], 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 Gore] if he could get work permits at a later date and if
Corel could allow the workers to continue. Mr. O'Boyle then went on to ask Corel 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.
8
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 tile to metal - because a metal
roof was patently lighter than concrete tile.
46. On or about November 3, 2011, John Mulleavey of Roof Tec, 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, 0 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 stem
"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,
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in fact, authorizes metal roofs on single - family residences under certain circumstances.
Although Article V, section 70 -99(3) and Article VI, 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 file 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 Rooffec,
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/reporis 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 15a'
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 appear; 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.
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71. On or about January 28, 2013, the 15'h 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 I 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 -0f - -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 -0f - -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, Gorel 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 Gore] two days before.
94. 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 Thrashers 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, `9 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, ! do not know if there is a definition
in our code of open front yards. It is a general tens that 1 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 l9, 2013 meeting with Thrasher.
103. On the same day, O'Hare riled 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)-4c) 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 "OtherNarious ", 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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COUNT
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 wan-ant, 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.
COUNT H
First Amendment Retaliation
123. Plaintiff re- alleges and re -avers each of the allegations as set forth in the above
Paragraphs I 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 contractorstworkers to
cease performing their obligations based upon Ginsberg's previously - stated beliefs as
to their non -while 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.
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COUNT IV
Denial of Eaual Protection Under the Fourteenib Amendment
130. Plaintiff re- alleges and re-avers each of the allegations as set forth in the above
Paragraphs I through 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
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 Ithrough 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.
24
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