HomeMy Public PortalAboutSweetapple Exhibits 5/27/16Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MARTIN E. O'BOYLE,
Plaintiff,
V.
CASE NO.: 9:14-CV-81250-KAM
ROBERT A. SWEETAPPLE
and TOWN OF GULF STREAM,
Defendants.
SECOND AMENDED COMPLAINT
Plaintiff Martin E. O'Boyle ("Plaintiff') sues Defendants Robert A. Sweetapple
("Sweetapple") and the Town of Gulf Stream ("Town'), and alleges as follows:
PARTIES, JURISDICTION, AND VENUE
Plaintiff brings this action under 18 U.S.C. § 1983 and the Florida common law of
Defamation which will necessarily raise questions of the First Amendment as incorporated by
the Fourteenth Amendment.
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. This Court has supplemental or pendant jurisdiction over the Florida common law
claims pursuant to 28 U.S.C. § 1367.
3. This Court has jurisdiction under 28 U.S.0 § 1443(2), which gives district court's
jurisdiction over actions to secure civil rights extended by the United States government.
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
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TELEPHONE (954) 603-1340
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Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 3 of 17
engaged in 12 lawsuits against the Town relating to alleged violations of the Public Records
Law. Plaintiff has also filed one lawsuit for violations of 268.0114, Fla. Stat. because he was not
afforded any opportunity to speak before the Town passed a parking ordinance in response to the
Plaintiff parking his truck at Town Hall, a truck which contained politically charged banners
critical of the Mayor.
12. Plaintiff likewise engages in various forms of Constitutionally -protected
acts/speech with respect to the Town. For example, in 2013 Plaintiff painted the fagade of his
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Gulf Stream house with various political messages criticizing the Town, its then -mayor, and its
commissioners as the result of the Town denying Plaintiffs request for a building permit. The S�zZl[ iii
Town ultimately settled the dispute, which made its way to federal court, issuing an apology to
Plaintiff and agreeing to pay him $180,000.00.
13. In February 2014, Plaintiff announced that he would run for a council seat in Gulf
Stream and subsequently began campaigning throughout the Town and neighboring
municipalities. Plaintiff placed numerous campaign signs throughout the Town, many of which
were conclusively removed by Gulf Stream agents/officials. The signs were targeted for removal
at the reque,5t of Town Manager Thrasher because the signs displayed political content.
14. During this same time period, Plaintiff engaged in Constitutionally -protected
speech by flying banners and displaying signs that were critical of his opponents or otherwise
carried political messages. In response, the Town threatened Plaintiff with adverse action,
including code enforcement hearings carrying daily fines not to exceed $500 per sign per day, if
he did not remove his signs and otherwise cease such political speech.
15. As a result of the removal of his campaign signs, the threats of official adverse
action if his political signs were not removed, and other conduct by the Town, Plaintiff filed
3
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 5 of 17
Constitutionally -protected speech critical of the Town and its agents, and ultimately move from
the Town due to the pressure against Plaintiff and his family.
Morgan's June 2, 2014 Letter
21. In a June 2, 2014 letter from Morgan to all Town residents, Morgan noted that the
Town's general fund reserves had fallen below an acceptable number and blamed this occurrence
on the lawsuits filed by Plaintiff and another Town resident.
22. With respect to the public records requests filed by Plaintiff and the other Town
resident, Morgan stated that, in his opinion, they "have little purpose other than to harass and
financially damage our town."
23. Morgan's letter then goes on to state that the money to defend these lawsuits
would likely have to come from increased taxes to the residents of the Town — a premonition that
the Town made good on in July 2014 when Town commissioners voted unanimously to approve
a tax hike for Town residents.
24. The letter then states that, in an effort to 'step up its defense' of the lawsuits
referenced therein, the Town had hired special counsel to take a "firm stance" in opposing the
lawsuits.
25. The special counsel referenced in the letter is Sweetapple, an attorney with
Sweetapple, Broeker & Varkas, P.L.
26. Although "stepping up its defense" can mean several things, it quickly became
apparent to Plaintiff that the Town's newfound strategy in dealing with him did not involve
litigating the merits of his lawsuits in a court of law.
27. Rather, Morgan and Sweetapple (and likely other Town officials unknown to
Plaintiff at this time) devised a plan to smear Plaintiff's name among his friends and colleagues
5
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 7 of 17
requests and the willpower to enforce them through lawsuits.
33. Sweetapple has for months boasted to each of these individuals that Plaintiff was
'finished' and that Sweetapple would soon file suit against Plaintiff for the various alleged RICO
violations. Sweetapple further suggested in these conversations that Plaintiffs friends/attorneys
should sever their ties with Plaintiff so as not to be caught in the impending litigation (implicitly
threatening them in the process).
34. With respect to one such individual, Sweetapple's threats were more explicit and
bordering on extortion (if not in fact extortion) — Sweetapple demanded that this individual drop
his lawsuits against the Town or else he would also be named as a defendant in the supposedly
forthcoming RICO lawsuit against Plaintiff. Sweetapple further called a 'confidential' meeting
with this individual where, upon information and belief, Sweetapple further defamed Plaintiff by
making additional RICO allegations and additional threats.
35. These comments (which were completely false), together with Morgan's June 2,
2014 letter, were not made during the course of any judicial proceeding or in connection
therewith. Rather, the above-described comments were each made out of court and solely in
connection with Morgan and Swectapple's plan to harass, defame, and ultimately dissuade
Plaintiff from continuation of his various lawsuits against the Town and his political speech
critical of the Town and its agents.
36. As stated above, Morgan and Sweetapple's plan did not stop with the spreading
false and malicious lies about Plaintiffs purported involvement in criminal activities and
violation of the RICO Acts, but also included plans to exert pressure on Plaintiff's son and
business associates wholly unrelated to the merits of any of Plaintiff's lawsuits against the Town.
37. On or about April 24, 2014, Sweetapple himself publicly proclaimed that, as a
7
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 9 of 17
to, Morgan and Sweetapple). The Bar complaint against Plaintiffs son before the UPL division
of the Florida Bar was dismissed on May 20, 2015, no adverse action was taken by the Bar.
42. By attacking Plaintiffs reputation in the community and threatening Plaintiffs
son and business associates, Morgan and Sweetapple `stepped up their defense' of Plaintiffs
lawsuits by doing everything in their power — under color of law — to avoid actually litigating the
merits of the lawsuits. Rather, they set off on a course of intimidation, harassment, and
retaliation with a singular purpose of silencing Plaintiff at any cost.
43. All conditions precedent to this action have been performed or have been waived
COUNT I — SLANDER PER SR
(Sweetapple)
44. Plaintiff re -alleges and incorporates paragraphs 1 through 43 as set forth above.
45. As described herein, Sweetapple has, on numerous occasions over the past four
months, falsely stated to Plaintiffs friends, colleagues, business associates, and attorneys
t
(among other individuals and agency representatives) that laintiff is a `criminal' and is violating
the civil and criminal provisions of the federal and Florida RICO Acts through his filing of
public records requests and pursuit of lawsuits to enforce alleged violations of the Public
Records Law.
46. Further, Sweetapple has further stated to numerous individuals that Plaintiffs
pursuit of public records lawsuits is a( oney-making scheme' designed by Plaintiff to line his
pockets with profit.
47. Sweetapple did not present these statements as if they were merely his opinion —
rather, Sweetapple, as an attorney experienced in both state and federal matters, conveyed these
statements as fact. He did not state it was his or the Town's opinion that Plaintiff had committed
several felonies or that he would ultimately prove such in a court of law — rather, he left no room
9
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 11 of 17
policy of retaliating against residents for First Amendment activities, including the Plaintiff.
53. In early 2014, the Town cited a fellow resident Christopher O'Hare for displaying
objects d'art at his home under Sec. 70-268. The "objects of art" were several political signs that
were critical of Town Officials. The Town notified O'Hare that he would be brought to a code
enforcement hearing if he did not remove his signs. When resident O'Hare replaced his political
signage with holiday signage, the Town did not cite him. In fact, Town Manager Thrasher
admitted that for as long as he could remember (his employment with the Town dates back to the
mid -late 90's), the Town did not cite people for displaying holiday accoutrements that typically
are displayed at holidays such as Halloween or Gaster decorations. The Town's enforcement
was brought because Mr. O'Hare was critical of the Government; the Town did not cite Mr.
O'Hare under the Town's sign ordinance, which treated real estate signs more favorably than
political. The Town admitted such in a March 26, 2015 letter sent out to all residents of the
Town.
54. As part of the Town's pervasive culture of retaliation, the Town again cited Mr.
O'Hare in the spring of 2014 for displaying similar political signs on a small boat that was
moored in the center of a large turning basin called "Polo Cove" behind then Mayor, and current
commissioner, Joan Orthwein. O'Hare was cited under the portion of the Town's old sign
ordinance which regulated only political signs, for displaying signs in the Town's right of way,
not for displaying Object d'art.
55. When Plaintiff ran for Town Commissioner in 2014, the Town cited the Plaintiff
for placing signs in the Town's right of way when he displayed banners from him truck that were
critical of Town Officials. Plaintiff was also cited for placing campaign signs in the Town's
right-of-way when they were displayed on property owners' homes in the neighborhood of Place
11
DE•SOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 - FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 13 of 17
He called a special meeting of the commission for April 14 to consider an ordinance against
overnight parking at Town Hall — regulation aimed at vehicles displaying political signs that
criticize town officials." The article also noted that Morgan ran "on a platform that called for an
aggressive legal defense against the towns detractors."
60. In the summer of 2014, the Town attempted to use the state court system to
sanction and/or restrain the Plaintiff for flying politically charged banner planes in the federal
airspace — a privilege or immunity possessed by Plaintiff under the Fourteenth Amendment's
guarantee that State's refrain from attempting to prohibit access to federal privileges.
61. In June, as discussed above, the Town via Mayor Morgan sent out a "poison pen"
letter accusing the Plaintiff of the Town's woes. The letter was clearly created to incite social
ostrcization, directing resident's to treat the Plaintiff as a pariah. The letter had another purpose,
to quell any dissent and to prevent other Town residents from challenging the Town's actions,
just as the Coastal Star predicted.
62. To further the Town's North Korean approach to speech, the Town cited the
Plaintiff's wife, as Plaintiff s Truck was in her name, for parking the banner clad truck in one of
the highly visible parking spots at Town Hall on June 20, 2014. Shortly thereafter, Plaintiffs
truck was towed at the direction of the Town.
63. The Town's public parking ordinance 14/1 placed special restrictions on the
parking spaces in the front of Town Hall and the Police Station which were visible from the main
road. Those spaces were reserved for Town employees, who had reserved spaces in the back of
Town Hall, and for those conducting business at Town Hall. It is worth noting that the disability
entrance and handicapped parking spaces were in the back of Town Hall. Shortly after the
parking ordinance was passed, the Town built large hedges that hid the back parking spaces from
13
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 15 of 17
media campaign that included newspaper and television interviews to publicize the filing of the
RICO and to besmirch the Plaintiff and chill him from bringing public records litigation when he
felt the Town was violating the law and Florida Constitution.
67. Lastly as part of the Town's pervasive campaign of retaliation against petitioners
and political advocates, Mayor Morgan send out a letter to residents on March 26, 2015. The
letter was another poison pen sent out on Gulf Stream official letterhead contained within official
Gulf Stream envelopes. In this new letter Mayor Morgan admitted that the reason the old sign
ordinance was changed (in early 2015) was because of Plaintiff s legal actions. Morgan stated
"This change will primarily affect real estate signs, which had previously been treated differently
from other signs because of the importance of sign visibility to our residents when selling their
homes." Morgan went on tell Town residents that the RICO complaint and video depositions of
Plaintiff and O'Hare could be found at the Town's website. Those videos are also posted by the
Town on its official page on youtube.com.
68. Further in that letter, the Town accused Plaintiff of misconduct. In addition, the
Town notified all residents that O'Hare had made complaints against certain enumerated
residents/properties under the new sign ordinance. Morgan later admitted under oath that he
included that portion into his letter in an attempt to stop O'Hare from petitioning, i.e. sending the
Town complaints regarding selective code enforcement.
69. As demonstrated above, the Town possesses a policy of speech (both by content
and viewpoint) favoritism and has engaged in a campaign of retaliation against the Plaintiff. In
the Town, if a resident speaks out, that resident can expect an aggressive responsive that is
designed to chill if not freeze First Amendment activities. This method of operation is designed
to punish and deter dissent against Town Officials. Plaintiff has suffered because of this custom,
15
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Case 9:14-cv-81250-KAM Document 41 Entered on FLSD Docket 06/19/2015 Page 17 of 17
1515 N. University Drive
Suite 209
Coral Springs, FL 33071
Telephone: (954) 551-5320
DDesouza(a),desouzalaw.com
By: /s/ Daniel DeSouza, Esq.
Daniel DeSouza, Esq.
Florida Bar No.: 19291
CERTIFICATE OF SERVICE
I hereby certify that on June 19, 2015, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which will electronically serve all counsel of record.
/s/ Daniel DeSouza
Daniel DeSouza
17
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 -FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Sweetapple, Brocker & Varkas
Town of Gulf Stream
100 Sea Road
Gulf Stream, PL 33483
Attorney's FeDs
20 SE 3rd Street
Baca Raton, 11133432
Phone: 561-392-1230 1 Pax: 56
INVOICE lChoch
VN OF GULF STEGE
h PAYMENT APPROVED d
/ Rao , ao
Invoice Date: April 09, 2015
Invoice Number. 10048
Invoice Amount: $8,260.00
Matter: O'Boyle v. O'Connor. 1?46
2/24/2015
startreviewofnew lawsuit (sunshine violations
A.D.V.
1.00 $350,00
claim of O'Boyle) westlaw search: elements of
complaint.
2125/2015
continue reading and outlining treatises on sunshine
A.D.V.
2.50 $875,00
act ( fla, jur., fla, prac.,caselaw)
3!212015
Research,,
A.D.V.
3.00 $1,050.00
Read treatise and opinions (outline and
summarize) Draft 57.105 latter.
3/3/2015
Review ally, gen. opinions ro: sunshine law with
A.D.V,
.75 $262.50
RAS and draft affidavit.
324/2015
Wesllawsearch: Attorney General opinions, Florida
A.D.V.
4.00 $1;100,00
Bar Journal, case Inw re:-
reud and summarize articles,
treatise an Casa late
3/252015
Meeting with AV, Work on motion to dismiss and
R.S.
75 $262.50
motion for fees under 57.105.
3/2512015
Start dictating motion to dismiss and incorporated
A.D.V.
3.00 $1,050.00
memo of law
3/2612015
Obtain authority for basis of mation to dismiss
A.D.V.
1.50 $525.00
pursuant to rules 1.110 and 1.140. Bolster and revise
first half draft one ormotion to dismiss,
3/30/2015
Work an motions. Meeting with AV to discuss
it's.
.75 $262.50
controlling law.
3130/2015
research imv:
A.D.V.
2.00 $700.00
aDa,.
REDACTED PER119.071t1ttdtl
mx
20 SE 3rd Street
Boca Rulon, FI 33432
Phone: 561-392-1230 1 Fax: 561-394-6102
Account Statement
Prepared for Town of Gulf Stream
Re: O'Boyle v, O'Connor. 1746
Provious Balance
$0,00
Current Charges
$8,260.00
Now Bolance
$8,260,00
Adjustments
$0.00
Payments
$0.00
Now Due
$8,260,00
Trust Account
$2,380.30
REDACTED PER 119.071(1)(d)l