HomeMy Public PortalAboutCase 5013CA006750 (4/24/13)561-737-0189 town of gulf ttrear :56 p m 04-24-2013 7121
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
MARTIN E. O'BOYLE,
Plaintiff,
V.
TOWN OF GULF STREAM,
Defendant.
IMMEDIATE HEARING
REQUESTED PURSUANT
TO Fla. Stat. § 119.11(2010)
COPY
iECEIVED FOR FILP
APR 2 q 2013
1IO(1111`I,nr
The Plaintiff, Martin E. O'Boyle, ("Plaintiff'), without counsel as a Pro Se litigant,
hereby sues the Town of Gulf Stream, ("Defendant's, and as grounds therefore alleges as
follows:
1. This action concerns the Defendant's violation of Plaintiffs civil rights pursuant to
Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2012), (the
'Public Records Ace').
2. This action seeks declaratory and monetary relief.
3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its
constitutional' and stamtory2 duty to permit access to public records, and compelling the
I Note Article 1 Section 24, Fla. Const.
Every person has the right to inspect or copy any public record made or received in
connection with the official business of any public body, officer, or employee of the state, or
persons acting on their behalf, except with respect to records exempted pursuant to this
section or specifically made confidential by this Constitution. This section specifically
includes the legislative, executive, and judicial branches of government and each agency or
department created thereunder; counties, municipalities, and districts; and each
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Defendant to provide access to the requested public records and awarding Plaintiff his attorney's
fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section
119.11(1), Florida Statutess.
Jurisdiction and Venue
4, This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the
Florida Constitution, and Section 119.11, Florida Statutes.
5. This Court has personal jurisdiction over the Defendant, because the Defendant is a
public agency in Palm Beach County.
6. The causes of action in the instant case accrued in Palm Beach County; therefore, this
Court is the appropriate venue for the vindication of Plaintiff s civil rights.
The Parties
7. Plaintiff is a Florida citizen who resides in Palm Beach County.
8. Plaintiff is a "person" as that term is used in the Public Records Act. See §
119.07(1)(a), Fla. Stat 4
9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.6
constitutional officer, board, and commission, or entity created pursuant to law or this
Constitution.
2 Note § 119 07(1)(a), Fla, Stat.
Every person who has custody of a public record shall permit the record to be inspected and
copied by any person desiring to do so, at any reasonable time, under reasonable conditions,
and under supervision by the custodian of the public records.
D Note § 119.11(1), Fla. Stat.
Whenever an action is filed to enforce the provisions of this chapter, the court shall set an
immediate hearing, giving the case priority over other pending cases.
4 See Footnote "2".
5 Note § 119.011(2), Fla. Stat.
"Ageney" means any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government created or
established by law including, for the purposes of this chapter, the Commission on Ethics, the
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10. The Defendant has a duty to permit the inspection, copying, and photography of
D'efendant's public records by any person desiring to do so, at a reasonable time, under
reasonable conditions, and for reasonable costss. (Emphasis added). See § 119.07, Fla. Stat.; Art.
I, § 24, Fla. Const.
Florida's Public Records Act
11. Florida's Public Records Act implements a right guaranteed to members of the public
under the Florida Constitution and it therefore promotes "a state interest of the highest order."
See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (Ist DCA 2009)7.
Public Service Commission, and the Office of Public Counsel, and any other public or private
agency, person, partnership, corporation, or business entity acting on behalf of any public
agency.
4 Note Government -In -The -Sunshine -Manual 2012 Edition, page 144.
The term "reasonable conditions' as used in a.119.07(1)(a), F.S., "refers not to conditions
which must be fulfilled before review is permitted but to reasonable regulations that would
permit the custodian of records to protect them from alteration, damage, or destruction and
also to ensure that the person reviewing the records is not subjected to physical constraints
designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420, 425
(Fla -1979). See also State ex rel. Davis v. Millan, 38 So. 666 (Fla. 1905); and Tribune
Company v. Cannella, 468 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte
v. Tribune Company, 105 S,Ct. 2315 (1985) (the sole purpose of custodial supervision is to
protect the records from alteration, damage, or destruction).
Accordingly, the "reasonable conditions" do not include a rule or condition of inspection
which operates to restrict or circumvent a person's right of access. AGO 75-60. "The courts of
this state have invalidated measures which seek to impose any additional burden on those
seeking to exercise their rights to obtain records' under Ch. 119, F.S. Inf. Op, to Cook, May
27, 2011. And see State u. Webb, 786 So. 2d 602 (Fla. let DCA 2001) (requirement that
persons with custody of public records allow records to be examined "at any reasonable time,
under reasonable conditions' is not unconstitutional as applied to public records custodian
who was dilatory in responding to public records requests).
7 Note NCAA v. Associated Press, 18 So. 3d 1201, 1212 (lot DCA 2009)
We are not persuaded that the Public Records law has an indirect effect on interstate
commerce, but even if some effect had been established, we could not say that the law
violates the dormant Commerce Clause. The Public Records law implements a right
guaranteed to members of the public under the Florida Constitution and it therefore
promotes a state interest of the highest order. The negligible impact the law might have on
interstate commerce clearly does not outweigh the goal of ensuring open government.
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12. The right of access to public records applies to "any public body, officer, or employee
of the state, or persons acting on their behalf..." Art. I, § 24, Fla. Const.; see also § 119.011(2),
Fla. Stat s
13. Under the Public Records Act, "[e]very person who has custody of a public record
shall permit the record to be inspected and copied by any person desiring to do so, at any
reasonable time, under reasonable conditions, and under supervision by the custodian of the
public records." See § 119.07(1)(a), Fla. Stats
14. Under the Public Records Act, "[a]ny person shall have the right of access to public
records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat.lo
15. Defendant, as an agency and custodian of records, has an obligation to provide any
non-exempt public records for inspection, copying and photography upon request. See §
119.07(1)(a)rr, § I19.07(3)(a)12, Fla, Stat; Art. I, § 24, Fla. Const 13
Factual Background
16. On the Morning of April 15, 2013, Plaintiff arrived at the Town Hall of the Town of
Gulf Stream, ("Town Hall"), Iocated at 100 Sea Road, Gulf Stream, Florida in order to make a
public records request.
17. Specifically, Plaintiff sought, by written request delivered to the Defendant's
Custodian of Public Records (the "Custodian', to obtain copies of "any reports or writings
authored by Martin Minor or William Thrasher in regard to Application #1 on the Agenda of the
a See Footnote "15".
9 See FootnotB "2".
10 Note § 119.07(3)(a), Fla. Stat.
Any person shall have the right of access to public records for the purpose of making
photographs of the record while such record is in the possession, custody, and control of the
custodian of public records.
It See Footnote "2".
12 See Footnote "10"-
13 See Footnote "I".
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Town Commission Meeting dated April 12, 2013 for the premises known as .3211 North Ocean
Boulevard, Gulf Stream, FU' See Exhibit A attached (the "Request").
18. Plaintiff additionally requested in the Request that if the requested records were not
readily available that Plaintiff would accept the responsive documents "piece meal," however, he
would like Martin Minor's report (the "Report") immediately.
19. The Custodian acknowledged receipt of the Request and informed Plaintiff that a
copy of the Report would be, provided.
20. The Custodian presented Plaintiff with a copy of the Report, in the form of a 1 page
color print out of an E -Mail from Martin Minor to William Thrasher, dated March 27, 2013 at
3:29 p.m. attached as Exhibit B.
21. The Custodian also presented Plaintiff with a copy of a 2 page undated Architectural
Review and Planning Report for the address indicated in the Request, however, the author of this
document is not self-evident.
22. The Custodian stated that as a condition of Plaintiffs receipt of the aforesaid copies,
Plaintiff must pay $1.75 for the time spent to produce a copy of the records.
23. The Custodian stated that it took approximately 5 minutes to produce the copies.
24. Plaintiff paid the $1.75 under protest and received the copies.
25. Plaintiff has never received the remaining documents responsive to the Request.
26. The copy of the Report given to Plaintiff appears to have been redacted by covering a
portion of the original with an opaque material. This is evident in that there is a line underneath
the visible portion of the Report which is slanted relative to the text of the Report.
27. Undemeath the aforementioned line, the words "From" and "Sent" are faintly visible
in the same format as the E -Mail heading at the top of the Report. These words are faintly
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visible only on the original copy of the Report given to Plaintiff, not on the copy attached as
Exhibit B.
28. The Custodian did not inform Plaintiff that any of the copies provided had been
redacted.
29. The Custodian did not, and to this date has not, stated a basis for any exemption
applicable to the redacted portion of the Report.
Count I — Imposition of an Unlawful Fee
30. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 29 as if fully
alleged herein.
31. The records being sought by Plaintiff are public records pursuant to Section
119.01 ] (12)14, Florida Statutes.
32. Section 119.07(4), Florida Statutes states that "The custodian of public records shall
furnish a copy of the record upon payment of the fee prescribed by law."
33. The Defendant imposed a charge for the time spent to produce copies of the public
records in the amount of $1.75 which was paid by Plaintiff in protest.
34. Under Florida Statutes Section 119.07(4)(d), a special service charge to reimburse the
agency for labor costs is permissible only, "If the nature or volume of public records requested to
be inspected or copied pursuant to this subsection is such as to require extensive use of
information technology resources or extensive clerical or supervisory assistance by personnel of
the agency involved."
14 Note § 119.011(12), Fla. Stat.
"Public records' means all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of the
physical form, characteristics, or means of transmission, made or received pursuant to low or
ordinance or in connection with the transaction of official business by any agency.
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35. The Request, which took only approximately 5 minutes to fulfill, was not "extensive"
pursuant to Section 119.07(4)(d), and therefore the imposition of a charge for the time spent to
produce copies of the public records was an imposition of an unlawful fee.
Count 11— Unlawful Withholding of Public Records
36. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 35 as if fully
alleged herein.
37. Defendant redacted a portion of the copy of the Report provided to Plaintiff, by
placing an opaque material over a portion of the original when copying the record, as is apparent
from the copy of the Report provided to Plaintiff.
38. Under Section 119.07(1)(e), Florida Statutes if the custodian asserts and exemption to
all or a part of the record, "he or she shall state the basis of the exemption that he or she contends
is applicable to the record, including the statutory citation to an exemption created or afforded by
statute."
39.. There is no statutory exemption that applies to the requested public records and the
Defendant has cited none.
40. Furthermore, the redacted portion of the Report is most likely an E -Mail message
from William Thrasher to Martin Minor which prompted the Report and would therefore be a
public record responsive to the Request.
41. The Defendant's refusal to allow Plaintiff access to the requested public records
violates Article I, Section 24(a) of the Florida Constitution, Section 119.07, Florida Statutes.
42. Violations of Section 119.07, Florida Statutes constitute an irreparable public
injury's.
16 Note Daniels v. Bryson, 548 So. 2d 679,680 (Fla. 3d DCA 1989)
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43. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty
to permit inspection, copying and photographing of public records.
44. Plaintiff has no adequate remedy at law.
45. Section 119.11 (1), Florida Statutes requires this matter beset for an immediate
hearing.16
46. All conditions precedent to this action have occurred or have been excused or waived.
Count III — Unlawful Withholding of Public Records
47. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 46 as if fully
alleged herein.
48. To date, Defendant has not produced copies of any documents responsive to the
Request except the copy of the Report and the Architectural Review and Planning Report, both
of which were provided on April 15, 2013.
49. The Custodian has stated that there are no additional responsive documents.
50. However, the Report itself is an E -Mail response from Martin Minor to William
Thrasher which is apparently a response to an earlier E -Mail authored by William Thrasher.
51. Any E -Mail or other writing from William Thrasher that prompted the Report would
be a public record responsive to the Request.
52. Additionally, Section 66-145(c)(8), Land Development Regulations Town of Gulf
Stream requires that as a part of the "Level 3 architectural / site plan review," the planning and
building administrator (William Thrasher), "shall provide awritten recommendation to the
The impermissible withholding of documents otherwise required to be disclosed constitutes,
in and of itself, irreparable injury to the person making the public records request. Since the
purpose of Chapter 1,19 is to afford disclosure of information without delay to any member of
the public making a request, nondisclosure prevents access to the information and is an
injury not ordinarily compensable in damages.
14 See Footnote "3".
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architectural review and planning board..." This document is a public record that is responsive
to the Request, but has not been provided to date.
53. By withholding documents responsive to Plaintiffs Request, without citing any
applicable exemption, and by denying the existence of responsive documents, Defendant has
violated Article 1, Section 24(a) of the Florida Constitution, and Section 119.07, Florida Statutes,
Count N—Unlawful Withholding of Public Records
54. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 53 as if fully
alleged herein.
55. The Plaintiff requested the responsive documents be provided in electronic form and
provided an E -Mail address for the response to be sent to.
56. The copy of the Report provided to Plaintiff was a paper copy of an E -Mail, as is
apparent from the Report itself.
57. Section 119.01(2)(f), Florida Statutes provides, "An agency must provide a copy of
the record in the medium requested if the agency maintains the record in that medium."
53. Defendant refused to provide an electronic copy of the Report to Plaintiff.
59. Defendant's refusal to provide the responsive documents in the medium requested is
in violation of Section 119.01(2)(f .
Attorneys' Fees
60. The Public Record Act provides that "[1]f a civil action is filed against an agency to
enforce the provisions of this chapter and if the court determines that such agency unlawfully
refused to permit a public record to be inspected or copied, the court shall assess and award,
against the agency responsible, the reasonable costs of enforcement including reasonable
attorneys' fees" See § 119.12, Fla. Stat.
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61. Plaintiff has retained counsel in this matter only for the limited purpose of assisting in
the preparation of this complaint, however, he reserves the right to retain counsel to represent
him in this matter and therefore asserts his statutory claim to attorney's fees and expenses in the
event that Plaintiff does retain counsel to represent him
Relief Requested
WHEREFORE, Plaintiff prays this Court:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;17
(b) Declare that the Defendant's failure to provide Plaintiff with access to the
requested public records was unconstitutional and unlawfiil under Article I, Section 24 of
the Florida Constitutionra and the Public Records Act;rg
(c) Order the Defendant to refund to Plaintiff all fees paid in excess of those
authorized by statute.
(d) Order the Defendant to produce copies of all the requested records (upon payment
of the statutorily authorized fees);
(e) Order the Defendant to provide copies of all the requested records to Plaintiff in
electronic format (for the records that are so maintained);
(f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this
action, as provided in Section 119 12, Florida Statutes;20 and
(g) Giant such further relief as the Court deems proper.
17 See Footnote 'T
III See Footnote "1".
1s See Footnote "2".
20 See Verified Complaint at "60."
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VERIFICATION
STATE OF FLORIDA
COUNTY OF PALM BEACH
BEFORE ME, the undersigned authority, personally appeared Martin E. O'Boyle, who,
being first duly identified and swom, deposes and says that this VERIFIED COMPLAINT is
based on records and information known to him, and are true and correct to the best of his
Imo dg information, and belief.
By:
Name: Martin E. O'Boyle
Dated: Z / --R3-1.13
Printed/Typed+ Name:
ynnok. zj - L+ ca
Notary Public -State of Florida
Commission Number:
£L-I0gi10
Dated: 14 / 23 / 13
He who is personally known to me.
(SEAL)
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Respectfully submitted,
PREPARED WITH ASSISTANCE OF
COUNSEL
TIN E. O'BOYLE, as Pro Se Plaintiff
m6tin E. O'Boyle
1280 West Newport Center Drive
Deerfield Beach, FL 33442
Telephone: (954) 570-3505
mobovle(a(),commerce-group.com
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Exhibit A
561-737-0188 town of gulf strer
RECORDS REQUEST (the "Request")
Date of Request: 4/15/13
Requestor's Request IDM: 332
8:54 p m 04-24-2013 19121
ft�r�o,oe�iv�ceo
'6y /rJEO
REQUESTEE: CUSTODIAN OF RECORDS TOWN OF GULF STREAM
REQUESTOR MARTINE.O'BOYLE
REQUESTOR'S CONTACT INFORMATION: E -Mail: bmsselinncommerce-211311n.c01it
Fax: 954-360-0807; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST: PLEASE PROVIDE A COPY OF ANY REPORTS OR WRITINGS AUTHORED
BY MARTIN MINOR OR WILLIAM THRASHER IN REGARD TO APPLICATION Ml ON THE
AGENDA OF THE TOWN COMMISSION MEETING DATED APRIL 12, 2013
FOR THE PREMISES KNOWN AS 3211 NORTH OCEAN BOULEVARD, GULF STREAM, FL
ADDITIONAL INFORMATION REGARDING REQUEST: If the requested records are not all
readily available, we will accept them piece meal. We would like to have Martin Minoes report
provided to us immediately
THIS REQUEST IS MADE PURSUANT TO PUBLIC RECORDS ACT,
CHAPTER 119 OF THE FLORIDA STATUTES AND IS ALSO REQUESTED UNDER THE
COMMON LAW RIGHT TO KNOW, THE COMMON LAW RIGHT OF ACCESS; AND
ANY STATUTORY RIGHT TO IiNOW (INCLUDING, WITHOUT LIMITATION, ANY
STATUTORY RIGHT OF ACCESS, AS APPLICABLE). THIS REQUEST IS ALSO MADE
PURSUANT TO THE RIGHTS OF THE REQUESTORPROVIDED IN THE FLORIDA
CONSTITUTION
IT IS REQUESTED THAT THIS RECORDS REQUEST BE FULFILLED IN ELECTRONIC
FORM. IF NOT AVAILABLE IN ELECTRONIC FORM IT IS REOUESTED THAT THIS
ACCORDANCE WITH Section 119.07(4) (a) (2)
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E-MAIL DELIVERY
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFH.L THIS PUBLIC
RECORDS REQUEST IN ADVANCE.
It will be required that the Requester approve of any costs, asserted by the Agency (as defined in
Florida Statute, Chapter 119.01 (Definitions)), in advance of any casts imposed to the Requester by
the Agency.
i PiNPR/FRR
04.!5.13 FORM
561-737-0188 town of gulf sire: 19:38 pm 04-24-2013 20/21
Exhibit B
561-737-0108 town of gulf suer 19:52 p m 04-24-2013 21 121
13111 Thrasher
From:
Marty Minor<MMinor®udkstudlas.com>
Sent:
Wednesday, March 27, 2013 3:29 PM
To:
Bill Thrasher
Subject:
RE:
Yes, I will be there.
With regards to the terra cotta roof color for 3211 N. Ocean, as we discussed, the color is not consistent with code and
that's why there if an application for a variance.
As Benjamin Schlerer has shown, there is some architectural precedent of Georgian homes with a terra cotta slate -type
roof. However, I am not aware of terra cotta slate -like on a Georgian home in the Town. The ARPB should consider whether
the roof meets this criteria:
1. Consistency of neighborhood character.
2. Consistency of architectural style.
3. Consistency of building form and mass.
4. Consistency of materials and colors.
S. Consistency of location of elements.
I don't have a strong opinion on the appropriateness of the color. The roof color has been used on other Georgian homes,
Just not here. The ARPB will need to determine whether the color is appropriate for the district and the community for this
one house. Being in the Beachfront District, there is a wider variety of architectural styles than In other districts, which is
also another Factor to be considered by the ARPB.
See you in the morning.
marry
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
ur n 1heC)llcEsatCilyPlaceNorth
A77 S. RosemotYAvenUe SUife225
�,IR� `1 lyost Palm Becch Flondb 3�l4el
ST;UDI O_$'.-_�r6np Pfohnffil.a .'d 401010 ) ld,'adl
Ph. (561) 366:7700
I. )561)366:1111
www.udksludlasxc!m
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