Filing # E-Filed 01/13/ :58:39 PM

Transcription

1 Filing # E-Filed 01/13/ :58:39 PM GRANT STERN, Plaintiff v. CITY OF MIAMI BEACH, a political subdivision of the State of Florida, and PHILIP LEVINE, Mayor, City of Miami Beach Defendants. / IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO: CA-01 AMENDED COMPLAINT TO ENFORCE THE FLORIDA PUBLIC RECORDS LAW AND ARTICLE 1, SECTION 24 OF THE FLORIDA CONSTITUTION Plaintiff, Grant Stern, a resident and citizen of Miami-Dade County, Florida sues the City of Miami Beach ( City ) and Mayor Philip Levine, and states: Summary of Action 1. This is an action for injunctive and declaratory relief to enforce Plaintiff s rights to inspect and copy public records pursuant to the provisions of the Public Records Act, section 119, Florida Statutes and Article I, section 24 of the Florida Constitution. 1 Plaintiff also requests an expedited hearing as required by section , Florida Statutes. 1 I think the objective of the Sunshine Law, of course - is to make sure that everything is out in the open, and I believe that assuming you re doing the right thing for your constituents and for the people that you re serving, it s a wonderful thing. Most people - I believe - appreciate the fact that everything you do as it relates to the business of the city is public information, and it should be. - Mayor Philip Levine. See 1

2 Jurisdiction and Venue 2. This Court has jurisdiction over the subject matter of this case pursuant to sections , , and , Florida Statutes. 3. Venue is proper in this Court pursuant to section , Florida Statutes. 4. All conditions precedent to the bringing of this action has occurred. Parties 5. Stern is a resident of Miami-Dade County. At all times relevant, Stern was entitled to inspect and copy public records requested pursuant to section 119, Florida Statutes and Article I, section 24 of the Florida Constitution. 6. City of Miami Beach is a political subdivision of the State of Florida and at all times relevant to this case was an agency under Section (2), Florida Statutes (2016). 7. Levine is the mayor of the City of Miami Beach and at all times relevant to this case was an agency under section (2), Florida Statutes. Statement of Facts 8. Levine is a 21 st century mayor who employs various digital mediums including social media to communicate official business. 9. Levine s Twitter account identifies him as the mayor of Miami Beach. Levine s account name is Mayor Philip Levine and his Twitter handle The self-description section on Levine s account states that Levine is: 2

3 Proudly serving as Mayor of Miami Beach. This page expresses the views and opinions of Mayor Levine and not those of the City of MB. #MBMayor #MiamiBeach. See Exhibit Similarly, Levine utilizes Facebook to communicate the official acts and businesses of the City of Miami Beach to his constituents. Levine s Facebook account addresses him as a governmental official and that his current office is the mayor of Miami Beach, Florida. Levine s account states that he is: Making Miami Beach the city that works...for its people. See Exhibit After a cursory review of Levine s Twitter and Facebook, there s no question that Levine utilizes social media to communicate the City of Miami Beach s official business. Levine s communications include posts such as renaming a Miami Beach street after Muhammad Ali 2 to informing residents of the Zika virus outbreak in the city. See Exhibit Levine has two other Facebook accounts in which he does not conduct official business, which are his personal page and his political campaign page, neither of which is noted as government official. 13. Lastly, Mayor Levine hosts a weekly satellite radio program on SiriusXM called, The Mayor. As described by Mayor Levine in the show s pre-launch press release, The Mayor provides listeners the insiders perspective on everyday 2 A day after the Levine s Muhammad Ali s post, the City of Miami Beach unanimously approved the renaming of the street after Muhammad Ali. See and and 3

4 government decision-making. The show focuses on issues that directly involve the City of Miami Beach such as lobbying the U.S. Congress for Zika virus funding in his official role as mayor. 14. On July 23, 2016, Levine posted a photograph on Twitter where Levine is seen greeting Hillary Clinton and Tim Kaine, who formerly ran for President and Vice- President of the United States of America. See Exhibit 1. Stern responded to Levine s post by sharing a recent article he wrote on Huffington Post entitled, Florida Senate Candidate Slams Miami Beach for Fouling Biscayne Bay, Sunshine Law Failures. In addition to the shared article, Stern advised you fix the #MiamiBeach water pollution problem you caused. Id. After said statement, Levine blocks 3 Stern on Twitter. See Exhibit Stern proceeded to Levine s Facebook account (which is self-categorized as a government official and is a verified page with a blue checkmark indicating that Levine personally operates the account 4 ), and requested a copy of Levine s official posts for the last 30 days on Twitter. See Exhibit 5 Levine responded by deleting Stern s public records request. Stern subsequently complained to Levine regarding the deletion of 3 Blocking is a feature that helps the account holder control how he or she interacts with other users on social media such as Twitter. This feature allows the account holder to restrict specific users from contacting the account holder, seeing the account holder s messages, and following the account holder. See On Facebook, blocking prevents an unwanted person or entity from seeing things the account holder post on his or her profile, starting conversations with the account holder or adding account holder as a friend. The person blocked will not be able to be tagged in a posts, comments, or photos, invite the account holder to events or groups, start a conversation with the account holder, and add the account holder as a friend. See 4 See Verified Page or Profile 4

5 the previous requests. See Exhibit 6. Levine then blocks Stern from Facebook and then deleted any comments made by Stern On July 25, 2016, Stern called the City of Miami Beach and made a public records request for Levine s block list 6 on his government official Facebook page. The City ed Stern acknowledging their receipt of Stern s request and assigning him a public records request number See Exhibit Stern followed up by providing instructions to the City on how to obtain the block-list on Facebook. Specifically, Stern stated: I d like a list or copy of all persons blocked by the Mayor of Miami Beach s official Facebook account. In a personal account this list can be found at In a Facebook page account it s accessible from the below URL, there is a flip down box that says Banned People and Pages : ther_pages. Id. 18. On July 27, 2016, the City of Miami Beach s attorney, Aleksander Boksner, informed Stern that the City will not be producing said documents because these documents are not public records. Id. Specifically, Mr. Boksner stated: Please be 5 Interestingly enough, Levine did not delete Jeff Everhart s comment containing an icon of a laughing child and a kitten to the same comment. 6 A block list is the group of Facebook users the account holder has chosen to block. In the case of Levine the block list is the group of individuals who are prohibited from commenting upon the official city business. 5

6 advised that the request for a copy of all persons blocked or banned from Mayor Philip Levine s Facebook page, is not a public record that was made or received in the course of the official business of the City of Miami Beach. Id. 19. Undeterred by the City of Miami Beach s denial, Stern requested an inperson inspection. Id. On behalf of the City of Miami Beach, Mr. Boksner stated: Please be advised that the City of Miami Beach is disinclined to acquiesce to the below request, and is hereby asserting its legal position that was clearly set forth in the letter remitted directly to your attention. Id. 20. Stern responded to the City s denial, and again requested the public records. Id. Days later, Stern sent one last message seeking a response. Defendants did not respond to his final request. Id. 21. On September 23, 2016, Stern made a public records request to the City of Miami Beach seeking audio recordings from Mayor Levine s SiriusXM show. Id. Specifically, Stern requested: [A]ll digital recordings related to The Mayor a radio program by Mayor Philip Levine which broadcast on Sirius XM radio. Provide copies of all episodes and all related audio material recorded by Mayor Philip Levine in conjunction with his broadcast which have been released or not, that is all recorded material whatsoever including outtakes, to include all raw recorded episodes, all segments and any material related to the Mayor's appearances on Sirius XM for the entire calendar year of

7 Id. On September 26th, the City of Miami Beach acknowledged Stern s request. 22. On September 28, 2016, Stern then requested: Cop[ies] of [c]ontracts or [a]ll [w]ritten [a]greements between Mayor Levine and SiriusXM radio and/or all independent producers or associated studios for the show entitled, The Mayor. Id. On the same day, this request was acknowledged by the City of Miami Beach. Id. The City of Miami Beach s attorney sent a reply letter to Stern, denying him access to the public records requests related to Levine s SiriusXM show. 7 Id. ENFORCEMENT OF THE PUBLIC RECORDS LAW 23. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 22 of this Complaint as if fully set forth herein. 24. Section (12), Florida Statutes defines public records as all documents, papers, letters, maps, books or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 25. Section (2), Florida Statutes defines agency to mean any state, county, district, authority, or municipal officer, department or other separate unit of government created or established by law and any public or private agency, person, partnership, corporation, or business agency, acting on behalf of any public agency. 26. The term received in section (12) refers not only to a situation in which a public agent takes physical delivery of a document, but also to one in which a public agent examines a document. If that were not the case, a party could easily circumvent the public records laws. See National Collegiate Athletic Ass n v. Associated 7 These requests were assigned the following public records request numbers:12364, and

8 Press, 18. So. 3d 1201 (Fla. 1st DCA 2009), pet. for rev. docketed, No. SC (Fla. Oct. 14, 2009); Times Publ g Co. v. City of St. Petersburg, 558 So. 487 (Fla. 2d DCA 1990) (holding that records become public records once they have been viewed and used by public officials). A document that is used in the course of public business is a public record under the definition in section (12) if it was received by the public official. NCAA, 18 So. 3d at Section (1)(a), Florida Statutes proves 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. (Emphasis added). 28. The documents Stern requested from Defendant requested from which are public records subject to the disclosure requirements of section , Florida Statutes were (1) 30 days of published posts on to Twitter, (2) a copy of Levine s block list on his government official Facebook page, and (3) audio recordings and agreements related to the SiriusXM show. 29. These documents are public records subject to the disclosure requirements of Article I, section 24, Florida Constitution. 30. These documents are not exempt from the disclosure requirements of Section , Florida Statutes, nor did Levine or the City of Miami Beach declare any exemptions from disclosure. 31. Defendants failure to produce responsive documents to Plaintiff s Chapter 119 requests constitutes a non-discretionary refusal to produce public records 8

9 and violates section , Florida Statutes, and Article I, section 24, Florida Constitution. 32. Plaintiff has retained the undersigned counsel to bring this suit, has incurred costs and attorney s fees in bringing this action, and is entitled to recovery of costs and reasonable attorneys fees pursuant to section , Florida Statutes. WHEREFORE, Plaintiff demands entry of orders: a. Setting an immediate hearing pursuant to section (1), Florida Statutes in order to address Defendants ongoing refusal to comply with Chapter 119 and Article I, section 24 of the Florida Constitution. Section (1), Florida Statutes, provides that [w]henever 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 matters. b. Directing the Defendants to appear at such hearing or hearings pursuant to section (1), and to show cause why the records requested by Plaintiff should not be ordered to be produced. c. Directing the Defendants to produce the records requested by Plaintiff at such hearing or hearings pursuant to section (1), Florida Statutes. d. Directing the Defendants, by writ of mandamus or otherwise, to produce to Plaintiff, all of the records requested. e. Awarding Plaintiff the costs and attorney s fees that he reasonably has incurred in prosecuting this action initially, and in seeking the Court s 9

10 intervention to obtain records requested subsequent to the initial complaint, pursuant to section , Florida Statutes. f. Awarding Plaintiff any other relief that is necessary or appropriate. Certification I certify that the following document has been served on the Defendants counsel of record via Florida E-Portal. Respectfully submitted on January 13, 2017 by: s/faudlin Pierre Faudlin Pierre Attorney for Plaintiff NE 1 st Court Miami, FL (305) FLA. BAR #

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21 9/19/2016 Gmail - Response to Public Records Request No Exhibit 7 Grant Stern <grantstern@gmail.com> Response to Public Records Request No Caba, Sandra <SandraCaba@miamibeachfl.gov> Wed, Jul 27, 2016 at 3:14 PM To: "grantstern@gmail.com" <grantstern@gmail.com> Cc: "Aguila, Raul" <RaulAguila@miamibeachfl.gov>, "Baez, Gloria" <GloriaBaez@miamibeachfl.gov>, "Granado, Rafael" <RafaelGranado@miamibeachfl.gov>, "Boksner, Aleksandr" <AleksandrBoksner@miamibeachfl.gov> Mr. Stern, Please review the attached correspondence. Thank you, Sandra Sandra Caba, Legal Assistant to Aleksandr Boksner, Deputy City Attorney, Gisela Nanson Torres, Senior Assistant City Attorney,and Nicholas Kallergis, Assistant City Attorney I OFFICE OF THE CITY ATTORNEY 1700 Convention Center Drive, 4th floor, Miami Beach, FL Tel: (305) or (305) ext / Fax: (305) / SandraCaba@miamibeachfl.gov We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community. Please note that Florida has a broad public records law and that any communication with the City of Miami Beach could be considered a public record. If you do not wish for your address to become a public record, please do not send electronic communications to the City of Miami Beach. Ltr to Grant Stern Re Public Records Request No pdf 112K 1/1

22 July 27, 2016 Mr. Grant Stern, President Morningside Mortgage Corporation 9630 E. Bay Harbor Drive Bay Harbor Islands, Fl Via Electronic Mail Re: Request for Public Records Dear Mr. Stern: I am the Deputy City Attorney for the City of Miami Beach, who is handling the above matter on behalf of the City of Miami Beach. Please direct all future inquiries regarding this matter directly to my attention. This correspondence shall serve as the City of Miami Beach s response to the July 25, 2016 request for public records pursuant to Chapter 119 of the Florida Statutes. Please be advised that a public record that is held by the City of Miami Beach (the City ) must be made or received pursuant to law or ordinance or in connection with the transaction of official business. The Florida Supreme Court has interpreted this definition to encompass, all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formulate knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633, 640 (Fla. 1980). Accordingly, please be advised that the request for a copy of all persons blocked or banned from Mayor Philip Levine s Facebook page, is not a public record that was made or received in the course of the official business of the City of Miami Beach. To that effect, such information would not constitute a public record which was prepared in order to perpetuate, communicate or formulize knowledge surrounding the official business of the City. In that regard, please be advised that the City does not have any responsive records pursuant to the July 25, 2016 request. Should you have any further questions or comments, please do not hesitate to contact me. AB/sc Respectfully submitted, /s/ Aleksandr Boksner Aleksandr Boksner Deputy City Attorney cc: Raul Aguila, City Attorney Gloria Baez, Mayor s Chief of Staff Rafael Granado, City Clerk

23 9/19/2016 Gmail - Response to Public Records Request No Grant Stern <grantstern@gmail.com> Response to Public Records Request No Grant Stern <grantstern@gmail.com> Wed, Jul 27, 2016 at 3:48 PM To: "Caba, Sandra" <SandraCaba@miamibeachfl.gov> Cc: "Aguila, Raul" <RaulAguila@miamibeachfl.gov>, "Baez, Gloria" <GloriaBaez@miamibeachfl.gov>, "Granado, Rafael" <RafaelGranado@miamibeachfl.gov>, "Boksner, Aleksandr" <AleksandrBoksner@miamibeachfl.gov>, John McKnight <publicrecordslaw.mcknight@gmail.com>, Ben Meiselas <meiselas@geragos.com> Bcc: Billy Corben <billy@rakontur.com>, Eric McDonough <phd2b05@gmail.com> The page Mayor Philip Levine is labeled Government Official. It is used for communication. Since you acknowledge that it is in fact your account, I would like to make an in person inspection of this account and photograph its administrative settings to verify who is the actual custodian. Please advise of a reasonable time this week for me to visit City Hall and photograph all of the records related to administration of this account with its custodian. Thank you Grant [Quoted text hidden] 1/1

24 9/19/2016 Gmail - Response to Public Records Request No Grant Stern <grantstern@gmail.com> Response to Public Records Request No Boksner, Aleksandr <AleksandrBoksner@miamibeachfl.gov> Wed, Jul 27, 2016 at 4:33 PM To: Grant Stern <grantstern@gmail.com>, "Caba, Sandra" <SandraCaba@miamibeachfl.gov> Cc: "Aguila, Raul" <RaulAguila@miamibeachfl.gov>, "Baez, Gloria" <GloriaBaez@miamibeachfl.gov>, "Granado, Rafael" <RafaelGranado@miamibeachfl.gov>, John McKnight <publicrecordslaw.mcknight@gmail.com>, Ben Meiselas <meiselas@geragos.com> Mr. Stern: Please be advised that the City of Miami Beach is disinclined to acquiesce to the below request, and is hereby asserting its legal position that was clearly set forth in the letter remitted directly to your attention. Thank you. MIAMIBEACH Aleksandr Boksner, Deputy City Attorney OFFICE OF THE CITY ATTORNEY 1700 Convention Center Drive 4th Floor, Miami Beach, Florida Tel: or ext / Fax: aleksandrboksner@miamibeachfl.gov<mailto:aleksandrboksner@miamibeachfl.gov> From: Grant Stern [grantstern@gmail.com] Sent: Wednesday, July 27, :48 PM To: Caba, Sandra Cc: Aguila, Raul; Baez, Gloria; Granado, Rafael; Boksner, Aleksandr; John McKnight; Ben Meiselas Subject: Re: Response to Public Records Request No The page Mayor Philip Levine is labeled Government Official. It is used for communication. Since you acknowledge that it is in fact your account, I would like to make an in person inspection of this account and photograph its administrative settings to verify who is the actual custodian. Please advise of a reasonable time this week for me to visit City Hall and photograph all of the records related to administration of this account with its custodian. Thank you Grant On Wed, Jul 27, 2016 at 3:14 PM, Caba, Sandra <SandraCaba@miamibeachfl.gov<mailto:SandraCaba@ miamibeachfl.gov>> wrote: Mr. Stern, Please review the attached correspondence. Thank you, Sandra 1/2

25 9/19/2016 Gmail - Response to Public Records Request No [Cropped-for-E-signature-MiamiBeachLogo_Green250px] Sandra Caba, Legal Assistant to Aleksandr Boksner, Deputy City Attorney, Gisela Nanson Torres, Senior Assistant City Attorney,and Nicholas Kallergis, Assistant City Attorney I OFFICE OF THE CITY ATTORNEY 1700 Convention Center Drive, 4th floor, Miami Beach, FL Tel: (305) <tel:%28305% > or (305) ext. 6561<tel:%28305% %20ext.%206561> / Fax: (305) <tel:%28305% > / SandraCaba@miamibeachfl.gov< [Quoted text hidden] image001.jpg 12K 2/2

26 9/19/2016 Gmail - Response to Public Records Request No Grant Stern <grantstern@gmail.com> Response to Public Records Request No Grant Stern <grantstern@gmail.com> Tue, Aug 2, 2016 at 5:05 PM To: "Boksner, Aleksandr" <AleksandrBoksner@miamibeachfl.gov> Cc: "Caba, Sandra" <SandraCaba@miamibeachfl.gov>, "Aguila, Raul" <RaulAguila@miamibeachfl.gov>, "Baez, Gloria" <GloriaBaez@miamibeachfl.gov>, "Granado, Rafael" <RafaelGranado@miamibeachfl.gov>, John McKnight <publicrecordslaw.mcknight@gmail.com>, Ben Meiselas <meiselas@geragos.com> Bcc: Eric McDonough <phd2b05@gmail.com>, thehemmingfirm@gmail.com, Felipe Hemming <felipe.hemming@gmail.com> Dear Mr. Boksner, You have not claimed any exemption under Florida s Public Records Act, and there is an existing opinion of the Florida Attorney General which is considered presidential in this matter unless overturned in court, which to my knowledge you have provided no evidence of any countervailing decision: Therefore, I am disinclined to acquiesce to your stubborn refusal to provide me with an in camera inspection of Mayor Phillip Levine s official Facebook page during which I may photograph (also a right under our Sunshine Law) the contents of the page, and within the page s content is provided to all Facebook page users a list of persons blocked from interacting with the page. I have retained counsel and will name all parties who violate the Sunshine Law in both their official and personal capacities as is my right, and that includes elected officials who may be subject to removal from office for willful and knowing violation of Florida s Constitution. It is bad enough that your city s leader (I stretch the bounds of credulity by using that word, but apply it in its most narrow technical sense) decided to violate my constitutional right to free speech by destroying my public record comments from his page, but upon further investigation, it has been determined that he actually is a frequent censor of all residents and visitors to Miami Beach. In this case, it is of vital public interest that I learn the full extent and list of all blocked persons, as their civil rights are being violated. Additionally, the Dade County Charter imposes an obligation of Truth in Government (Bill of Rights, A.2) and a cause of action if a citizen s right to truthful responses and lack of material omissions by our public officials. I will pursue my rights under the Dade County Charter, the Florida Constitution, and the United States Constitution vigorously and with assistance of counsel until these controversies are resolved. I am available to make an in camera inspection on Friday anytime. Please advise what hours are available and I shall visit City Hall, or provide electronically screen shots which reveal the entire list of names kept by the city in Mayor Phillip Levine s account as blocked. Govern yourself accordingly. Yours, Grant [Quoted text hidden] -- Grant Stern President Morningside Mortgage Corporation 9630 E. Bay Harbor Drive 1/2

27 9/19/2016 Gmail - Response to Public Records Request No Bay Harbor Islands, Fl office mobile efax 2/2

28 9/19/2016 Gmail - Response to Public Records Request No Grant Stern <grantstern@gmail.com> Response to Public Records Request No Grant Stern <grantstern@gmail.com> Thu, Aug 4, 2016 at 12:40 PM To: "Boksner, Aleksandr" <AleksandrBoksner@miamibeachfl.gov> Cc: "Caba, Sandra" <SandraCaba@miamibeachfl.gov>, "Aguila, Raul" <RaulAguila@miamibeachfl.gov>, "Baez, Gloria" <GloriaBaez@miamibeachfl.gov>, "Granado, Rafael" <RafaelGranado@miamibeachfl.gov>, John McKnight <publicrecordslaw.mcknight@gmail.com>, Ben Meiselas <meiselas@geragos.com> Well? [Quoted text hidden] 1/1

29 9/19/2016 Gmail - City of Miami Beach - City Clerk Public Records Request System Grant Stern <grantstern@gmail.com> City of Miami Beach - City Clerk Public Records Request System DoNotReply <DoNotReply@miamibeachfl.gov> To: "grantstern@gmail.com" <grantstern@gmail.com> Cc: "Salvatore, Jason" <JasonSalvatore@miamibeachfl.gov> Mon, Jul 25, 2016 at 11:54 AM We are in receipt of your Public Records Request, and it has been forwarded to the following department(s) for handling: Communications, Mayors Information requested: Please provide a copy of all persons blocked or banned from Mayor Philip Levine's Facebook page. Please be advised that if the nature and/or volume of the public records requested to be inspected, examined or copied requires extensive use of information technology resources and/or extensive clerical or supervisory assistance by City personnel, you will be required to pay a service charge for the costs incurred for such extensive use of resources and/or assistance. The City will charge 15 cents for each copy provided, as well as for extensive labor costs (labor exceeding 30 minutes) involved in the responding to the records request. Note that your Public Records Request has been assigned PRR #12089 and IT PRR# (not applicable). Please reference said PRR # when communicating with the City regarding your request. If you have any questions, please contact the Office of the City Clerk at (305) or researchrequest@miamibeachfl.gov. 1/1

30 9/19/2016 Gmail - City of Miami Beach - City Clerk Public Records Request System Grant Stern <grantstern@gmail.com> City of Miami Beach - City Clerk Public Records Request System Grant Stern <grantstern@gmail.com> To: "Salvatore, Jason" <JasonSalvatore@miamibeachfl.gov> Cc: researchrequest@miamibeachfl.gov, F Pierre <fplaw08@yahoo.com> Mon, Jul 25, 2016 at 11:55 AM PRR #12089 I'd like a list or copy of all persons blocked by the Mayor of Miami's official Facebook account. In a personal account this list can be found at In a Facebook Page account it's accessible from the below URL, there is a flip down box that says "Banned People and Pages": cc: F. Pierre, Esq. [Quoted text hidden] -- Grant Stern President Morningside Mortgage Corporation 9630 E. Bay Harbor Drive Bay Harbor Islands, Fl office mobile efax 1/1