Legal Report, July 2015

General Counsel, Trela J. White
Asst. General Counsel, Jennifer G. Ashton

1. RDQ 15-029 (PROPOSED), Voting Conflict; Proposed advisory opinion of the Palm Beach County Commission on Ethics.

After a request from the City Attorney of Riviera Beach, the Palm Beach County Commission On Ethics (COE) considered whether participating in a matter by an elected official who had a voting conflict was a violation of the Palm Beach County Ethics Code (PBC Code), even though the official abstained from voting. The COE determined that although state law might allow an elected official, who had a voting conflict, to participate in a matter so long as he or she abstained from voting, the PBC Code imposed a stricter standard and prohibited an elected official from participating in any matter that would give a special benefit to any person or entity described in section 2-443(a)(1–7) of the PBC Code, even if the official abstained from voting on the matter.

2. Reed, et al. v. Town of Gilbert, Arizona et al.; Case No. 13-502 of the Supreme Court of the United States. Municipal Sign Regulation.

The Town of Gilbert, Arizona’s (the Town) sign code regulates temporary signs and established restrictions based upon the category of sign, e.g., ideological signs, political signs, and temporary directional signs, etc. Good News Community Church (the Church) met weekly at different venues and placed temporary directional signs, which were installed every Saturday morning and removed on Sunday afternoon, to indicate where their services would be held that week. The Town’s sign code required that temporary directional signs be installed twelve hours prior to an event and removed one hour after an event. The Church was cited for violating durational requirements and other portions of the Town’s sign code. The Church filed suit, lost at both the trial and appellate court levels; then appealed to the Supreme Court of the United States (SCOTUS).
SCOTUS unanimously ruled that the Town’s sign code violated the First Amendment because the sign code’s distinctive treatment of each category of temporary sign was “hopelessly underinclusive”, i.e., the sign code placed strict limits on temporary directional signs as necessary to protect aesthetics but allowed unlimited proliferation of other temporary sign types that created the same problem. SCOTUS stated that “restrictions in the Sign Code that apply to any given sign […] depend entirely on the communicative content” and applied the strict scrutiny standard to the (content based) portions of the Town’s sign code which imposed more stringent regulations on the Church’s temporary directional signs than on other signs conveying other messages. This decision does not overrule any prior decision of SCOTUS, but does indicate a need for local governments to evaluate their sign codes, as many local governments regulate temporary signs based on the category of sign. Justice Alito’s concurrence is worth reviewing as it provides a non-comprehensive list of various categories of sign regulation that are still constitutional.

3. Town of Gulf Stream and Wantman Group, Inc. v. Martin E. O’Boyle, et al.; Case No. 15-80182-CIV-MARRA of the United States District Court, Southern District of Florida. Public Records.

Plaintiffs, Town of Gulf Stream and Wantman Group, Inc. filed suit and alleged Defendants violated the Racketeer Influenced Corrupt Organizations Act (RICO). Plaintiffs claimed that Defendants filed large numbers of frivolous public records requests that were often intentionally inconspicuous, followed by lawsuits when the claims were not addressed. Plaintiffs alleged the Defendants’ public records requests were frivolous and nothing but a first step of a RICO scheme to defraud and extort money from Plaintiffs. Defendants moved for dismissal based upon the failure to state a claim. The court dismissed the case on June 30, 2015 and stated Defendants’ acts did not violate RICO. The court held that threatening to sue or actually suing someone did not constitute a predicate act under RICO and that the filing of a public record request does not constitute a predicate act under RICO. The court noted that “Plaintiffs find themselves in a very difficult situation” and that “to the extent Defendants are abusing the rights afforded them by the Florida public records laws, those abuses must be addressed in the individual lawsuits filed, or through a change in the laws by the Florida Legislature.” We will continue to monitor this case and any appeals filed.

4. City of Hollywood, etc. v. Eric Arem; Case No. SC15-236 of the Supreme Court of Florida. Red Light Cameras

As a result of the outcome of this case, which was reported in the June 2015 Legal Report, class action lawsuits were filed in the U.S. District Court for the Southern District of Florida against eighty-one towns, the Florida Department of Revenue, and private red light camera operators. The plaintiffs in each lawsuit seek reimbursement of fines assessed against motorists by red light camera programs. Plaintiffs allege these fines were unlawful. The consolidated cases are currently pending before Judge Federico A. Moreno1. Most local governments have filed motions to dismiss that have yet to be heard. At stake is over $200 million in fines. The court dismissed the matter for lack of jurisdiction over the Florida Department of Revenue because plaintiffs failed to establish that their injuries were traceable to the Department of Revenue’s conduct; the matter against the municipalities is still pending. We will continue to monitor this case.

5. Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida, Inc. (LSS); Case No. 1D14-5793 of the First District Court of Appeal. Public Records

This case was first reported on at the January 2015 League meeting. The full details of the case are contained in the January 2015 Legal Report. Gray is a self-described public activist, who earns part of his livelihood making public records requests on unsuspecting private entities that do business with public agencies and then suing them when they fail to provide the public records to Gray’s satisfaction. Joel Chandler helps Gray carry out his public records requests. In this case, the trial court ruled that the means utilized by Gray to seek records from LSS constituted a flagrant abuse of Chapter 119 and were designed to ambush unsuspecting private entities. The trial court further opined that the practices amounted to no more than a scam and denied Gray’s complaint seeking attorney’s fees and costs. The court went on to state that the Public Records Act “…was not designed to create a cottage industry for so-called ‘civil rights activists’ or others who seek to abuse the Act for financial gain.” Gray filed an appeal with the First District Court of Appeal and was given additional time to file his Initial Brief. Gray’s Initial Brief was filed with a motion for oral argument. LSS’s Answer Brief was filed with an unopposed motion to supplement the record. Most recently, Gray filed a Reply Brief. A date for oral argument has yet to be set. We will continue to monitor this case.

6. Town of Gulf Stream, et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervener; Case No. 4D15-1753 of the Fourth District Court of Appeal of Florida. Inspector General Funding Lawsuit.

Fourteen municipalities sued Palm Beach County (the County) challenging the method of funding for the Office of Inspector General (the OIG Program). The current funding method authorizes the Board of County Commissioners to set an amount the municipalities must pay for the OIG Program and to bill municipalities for that amount. The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority. On March 16, 2015, the trial court entered a Final Judgment in favor of Palm Beach County. In May of this year, a Notice of Appeal was filed by the municipalities in the trial court and the County filed a Notice of Cross Appeal. Both parties agreed to an extension of time to file the Initial Brief (until September 14, 2015) and the matter is in the brief writing stage. The Florida League of Cities has considered the merits of the municipalities and has decided to petition the appellate court for amicus curiae (friend of the court) status. We will continue to monitor this case.