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IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUITIN AND FOR BROWARD COUNTY
TIMOTHY CHAZ STEVENSan individual,Case No:
PlaintiffsDiv:
vs.
THE CITY OF DEERFIELD BEACH,a municipal corporation, andJEAN M. ROBB, in her capacity as Mayor
of Deerfield Beach, and individually,
Defendants._______________________________________/
SUMMONSService on a city oficial and an individual
TO: Jean M. RobbMayor of Deerfield Beach
150 N.E. 2nd Ave.
Deerfield Beach, FL 33441 IMPORTANT
A lawsuit has been filed against you. You have 20 calendar days after thissummons is served on you to file a written response to the attached Complaint inthis Court. A phone call will not protect you; your written response including theabove case number and named parties, must be filed if you want the Court tohear your case. If you do not file your response on time, you may lose the case,and your wages, money, and property may thereafter be taken without furtherwarning from the Court. There are other legal requirements. You may want tocall an attorney referral service or a legal aid office listed in the phone book).
If you choose to file a written response yourself, at the same time you fileyour written response to the Court, you must also mail or take a carbon copy orphotocopy of your written response to the Plaintiff/Plaintiffs Attorney namedbelow.
DAVID A. FRANKEL, ESQUIRE20 South East 20th Street
Electronically Filed 10/28/2013 03:10:25 PM ET
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Fort Lauderdale, Florida 33316(954) 557-2244
THE STATE OF FLORIDA
TO EACH SHERIFF OF THE STATE: You are commanded to serve thisSummons and a copy of the Complaint in this lawsuit on the above-namedDefendant.
DATED ON _________________________, 2008
HOWARD C. FORMAN
By:______________________________Deputy Clerk
(SEAL)
IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT OF1990 (ADA), DISABLED PERSONS WHO, BECAUSE OF THEIRDISABILITIES, NEED SPECIAL ACCOMMONDATION TO PARTICIPATE INTHIS PROCEEDING SHOULD CONTACT THE ADA COORDINATOR AT 201SE 6TH STREET, ROOM 136, FORT LAUDERDALE, FLORIDA 33301 ORTELEPHONE VOICE/TDD (954) 831-6364 NOT LATER THAN FIVE BUSINESSDAYS PRIOR TO SUCH PROCEEDING.
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IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUITIN AND FOR BROWARD COUNTY
TIMOTHY CHAZ STEVENSan individual,Case No:
PlaintiffsDiv:
vs.
THE CITY OF DEERFIELD BEACH,a municipal corporation, andJEAN M. ROBB, in her capacity as Mayor
of Deerfield Beach, and individually,
Defendants._______________________________________/
SUMMONSService on a municipal corporation
TO: City of Deerfield Beachc/o City Attorney Andrew Maurodis710 E Hillsboro BlvdDeerfield Beach, Florida 33441
IMPORTANT
A lawsuit has been filed against you. You have 20 calendar days after thissummons is served on you to file a written response to the attached Complaint inthis Court. A phone call will not protect you; your written response including theabove case number and named parties, must be filed if you want the Court tohear your case. If you do not file your response on time, you may lose the case,and your wages, money, and property may thereafter be taken without furtherwarning from the Court. There are other legal requirements. You may want tocall an attorney referral service or a legal aid office listed in the phone book).
If you choose to file a written response yourself, at the same time you fileyour written response to the Court, you must also mail or take a carbon copy orphotocopy of your written response to the Plaintiff/Plaintiffs Attorney namedbelow.
DAVID A. FRANKEL, ESQUIRE20 South East 20th Street
Electronically Filed 10/28/2013 03:10:25 PM ET
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IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUITIN AND FOR BROWARD COUNTY
TIMOTHY CHAZ STEVENSan individual,Case No:
PlaintiffsDiv:
vs.
THE CITY OF DEERFIELD BEACH,a municipal corporation, andJEAN M. ROBB, in her capacity as Mayor
of Deerfield Beach, and individually,
Defendants._______________________________________/
COMPLAINT
COMES NOW the Plaintiff, TIMOTHY CHAZ STEVENS, sues the
Defendants, THE CITY OF DEERFIELD BEACH, a municipal corporation, and
JEAN M. ROBB, and states:
JURISDICTION AND VENUE
1. This is an action for violation of Chapter 119 and 286.011, Florida
Statutes, and for declaratory and equitable relief pursuant to
Chapter 86, Florida Statutes; and are within the jurisdiction of this
Court.
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2. The Defendant CITY OF DEERFIELD BEACH (hereinafter referred
to as CITY is a municipal corporation located entirely within
Broward County, Florida.
3. The Defendant JEAN M. ROBB (hereinafter referred to as ROBB)
is a resident of Broward County, and at all time material hereto,
was an elected official of the Defendant CITY. Said Defendant is
being sued in her individual and official capacities.
4. The Plaintiff TIMOTHY CHAZ STEVENS (hereinafter referred to
as STEVENS) is a resident of Broward County, and is otherwise
sui juris.
FACTS COMMON TO ALL CLAIMS
5. The Defendant CITY is a public body specifically included within the
intended scope and purpose of Chapter 119 (Floridas Public
Records Law) and 286.011 (Floridas Sunshine Law) of the
Florida Statutes. Likewise, the Defendant ROBB when acting in her
official capacity is equally subject to the mandates of Chapters 119
and 286.011, Florida Statutes.
6. For the purposes of transacting and discussing the business of the
Defendant CITY it is the practice and habit of Defendant ROBB to
use an official email account (synonymous with: email address)
furnished by Defendant CITY as well as personal accounts of her
own. Email accounts known by Plaintiff STEVENS to be used by
Defendant ROBB are: jrobb@deerfield-beach.com (issued by
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Defendant CITY) and mamamayor@comcast.net and
askmayorrobb@comcast.net (personal accounts).
7. As indicated by the chosen monikers of the personal accounts used
by Defendant ROBB, these accounts are intended by Defendant
ROBB to solicit discussion and transaction of business related to
Defendant CITY.
8. Any and all emails sent or received by Defendant ROBB - whether
via her designated government account furnished by Defendant
CITY or via any other account whatsoever - wherein the business
of Defendant CITY is discussed or transacted, fall with the scope of
Chapters 119 and 286.011, Florida Statutes.
9. Defendant CITY is the custodian, either actually or constructively,
and responsible for maintaining and producing, every email sent to,
or received by Defendant ROBB via any account, where the
business of Defendant CITY is either discussed or transacted.
10. Concurrently, Defendant in both her official capacity as a member
of Defendant CITYS governing board, and individually, is a
custodian of any and all emails sent and received by her where the
business of Defendant CITY is either discussed or transacted.
11. Pursuant to 119.01(1), Florida Statutes:
It is the policy of this state that all state, county, and municipalrecords are open for personal inspection and copying by anyperson. Providing access to public records is a duty of eachagency.
12. Public records are defined as:
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All documents, papers, letters, maps, books, tapes, photographs,films, sound recordings, data processing software, or othermaterial, regardless of the physical form, characteristics, or meansof transmission, made or received pursuant to law or ordinance orin connection with the transaction of official business by any
agency.
Fla. Stat. 119.011(12)
13. Pursuant to 286.011, Florida Statutes, the members of the
Deerfield Beach City Commission, of which Defendant ROBB is a
member, are strictly precluded from conducting or discussing City
business without providing access to the public. Such
communications and/or discussions include the use of electronic
methods such as email.
14. On August 8, 2013 Plaintiff STEVENS made a lawful request of the
Defendant CITY for the emails of Defendant ROBB, who is mayor
of the City of Deerfield Beach, as follows: Copies of Mayor
YouPeople's emails, from July 1, 2013 to present. Including any
city business email sent via personal accounts.
15. Defendant CITY unambiguously understood the intention of the
request as directed to those emails pertaining to Defendant ROBB,
and replied on August 20, 2013:
Hello Mr. Stevens, The requested information is ready for pick upin the City Clerks Office at a charge of $.90 cents. Should you
have any questions, please contact our office. Thank you
16. The Plaintiff did retrieve the offered records, and determined that
Defendant CITYS purported compliance, that being all emails
connected to Defendant ROBBS government account and any city
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business sent via personal accounts, for the entire 39 day period
was seven emails.
17. Defendant CITY thereafter, upon further request by the Plaintiff, did
determine that it had actual possession and control of numerous
additional emails associated with Defendant ROBBS city issued
account (jrobb@deerfield-beach.com) and personal
(mamamayor@comcast.net) and did furnish then to Plaintiff.
18. Upon furnishing these additional emails to Plaintiff, Defendant CITY
indicated its intent to determine the existence of additional emails
specifically within the possession and control of Defendant ROBB,
copies of which it was required to produce in accord with the
request.
19. Based on independently obtained credible information Plaintiff
STEVENS believes, and therefore alleges that there exists
numerous additional emails that meet the criteria of the August 8,
2013 request that are within the stated language and meaning of
Floridas Public Records Law and Sunshine Law.
20. As an elected official of the governing board of the City of Deerfield
Beach, Defendant ROBB is responsible for producing any records
within the scope and definition of Chapter 119, Florida Statutes,
which are maintained by her and in her personal possession on any
personal electronic device, computer hardware, server, backup,
storage, cloud and/or account.
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21. Defendant CITY as custodian of all public records related to the
City of Deerfield Beach is required to respond to Plaintiffs request
in good faith. A good faith response includes making reasonable
efforts to determine from other officers or employees within the
agency whether such a record exists and, if so, the location at
which the record can be accessed.
Fla. Stat. 119.07(1)(c).
22. As custodian of all records, Defendant CITY is responsible for
compliance with all public records requests made pursuant to
Chapter 119, Florida Statutes. This includes such records that exist
in the actual possession and control of the City of Deerfield Beach,
as well as any such records in the actual possession and control of
Defendant ROBB.
23. Based on credible information Plaintiff STEVENS does believe, and
therefore alleges, that the Defendant CITY is aware of additional
emails in the possession and control of Defendant ROBB that it, the
CITY, is bound to produce in response to Plaintiffs request
because they relate to the transaction of official business of
Defendant CITY. See Fla. Stat. 119.011(1).
24. Defendant ROBBS refusal to produce additional emails pursuant to
Plaintiffs request, that meet the definition of public records under
Fla. Stat. 119.011(1) is a willful and knowing violation of Floridas
Public Records Law and Sunshine Law.
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25. The penalties for violation of Floridas Public Records Law is stated
as follows:
(1) Any public officer who:
(a) Violates any provision of this chapter commits a noncriminalinfraction, punishable by fine not exceeding $500.
(b) Knowingly violates the provisions of s. 119.07(1) is subject tosuspension and removal or impeachment and, in addition, commitsa misdemeanor of the first degree, punishable as provided in s.775.082 or s. 775.083.
(2) Any person who willfully and knowingly violates:
(a) Any of the provisions of this chapter commits a misdemeanor
of the first degree, punishable as provided in s. 775.082 or s.775.083.
(b) Section 119.105 commits a felony of the third degree,punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Fla. Stat. 119.10
COUNT I(violation of Chapter 119, Florida Statutes)
26. Plaintiff STEVENS re-alleges and incorporates by reference
paragraphs 1 through 16 above (Facts Common to All Claims) as if
specifically set forth herein.
27. Defendants CITY and ROBB have failed to comply with Fla. Stat.
119.07(1)(c), by willfully refusing to respond to Plaintiffs August 8,
2013 request in good faith.
28. Section 119.07(1)(c) states:
A custodian of public records and his or her designee mustacknowledge requests to inspect or copy records promptly andrespond to such requests in good faith. A good faith responseincludes making reasonable efforts to determine from other officersor employees within the agency whether such a record exists and,if so, the location at which the record can be accessed.
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29. As previously averred Defendant CITY is the custodian of records,
including emails, sent to or by Defendant ROBB by use of any
electronic device owned and maintained by the City of Deerfield
Beach.
30. As previously averred Defendant ROBB is the custodian of all
records, including emails, within the scope of Chapters 119 and
286, Florida Statutes, that she maintains or has access to through
any personal electronic device, computer hardware, server,
backup, storage, cloud and/or account.
31. Both Defendant CITY and Defendant ROBB are in actual and/or
constructive possession of additional emails falling within the
definition of public records that they have refused to provide to
Plaintiff in response to his request.
32. To bring suit here to enforce compliance with Floridas Public
Records and Sunshine Laws Plaintiff has retained the services of
the Law Offices of David A. Frankel, P.A. and agreed to pay a
reasonable fee.
WHEREFORE Plaintiff STEVENS seeks order of this honorable Court,
and prays relief that:
a. the Court determines and identifies the emails properly subject to
Plaintiffs request of August 8. 2013 within the possession or control
of Defendants.
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b. the Court declare the Defendants in violation of Chapter 119, Florida
Statute and/or any portion thereof applicable to the violation.
c. the Court impose penalties against Defendants for: willful violation
including those set forth in Fla. Stat. 119.10, Plaintiffs costs of suit,
expenses and attorneys fees.
d. Plaintiff STEVENS demands trial by jury on all claims so triable.
COUNT II(equitable relief)
33. Plaintiff STEVENS re-alleges and incorporates by reference
paragraphs 1 though 16 above (Facts Common to All Claims) as if
specifically set forth herein.
34. Defendant CITY and ROBB maintain possession and/or control of
information and records subject to disclosure to Plaintiff pursuant to
Florida law.
35. Defendant ROBB has contumaciously refused to produce those
records and information and make them available to Plaintiff in
violation of Florida law.
36. Defendant CITY has failed to respond in good faith to Plaintiffs
request in that it has failed to use all means available to obtain the
subject emails within Defendant ROBBS actual possession.
37. Defendant CITY, despite efforts to obtain these records from
Defendant ROBB is nonetheless legally responsible to comply fully
with Plaintiffs request even if it, the CITY, must take legal action
against Defendant ROBB to do so.
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38. Plaintiff STEVENS seeks equitable relief of this Court declaring
Defendants CITY and ROBB in violation of Fla. Stat. 119.07, and
for issuance of a Writ of Mandamus compelling Defendants to
immediately release forthwith, and make available to Plaintiffs, all
materials sought pursuant to his public records request.
39. Equitable relief in this fashion is needed to prevent Defendants
from withholding public records, continuing to violate the mandates
of Chapter 119, Florida Statutes, and continuing to avoid
transparency in government both now and in the future.
40. To bring suit here to enforce compliance with Floridas Public
Records and Sunshine Laws Plaintiff has retained the services of
the Law Offices of David A. Frankel, P.A. and agreed to pay a
reasonable fee.
WHEREFORE Plaintiff STEVENS seeks order of this honorable Court,
and prays relief that:
a. the Court determines and identifies the emails properly subject to
Plaintiffs request of August 8. 2013 within the possession or control
of Defendants.
b. the Court invoke its equitable jurisdiction and issue a Writ
commanding the Defendants to produce this material and make it
available to the Plaintiff.
c. the Court tax costs against Defendants to cover Plaintiffs costs of
suit, expenses and attorneys fees.
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d. Plaintiff STEVENS demands trial by jury on all claims so triable.
COUNT III
(violation of 286.011, Florida Statutes)(Defendant ROBB only)
41. Plaintiff STEVENS re-alleges and incorporates by reference
paragraphs 1 though 16 above (Facts Common to All Claims) as if
specifically set forth herein.
42. Plaintiff Stevens believes and therefore alleges that the public
information requested from Defendants on August 8, 2013, which
they have refused to disclose, includes discussion, transaction
and/or planned action of the City Commission of the City of
Deerfield Beach by Defendant ROBB.
a. The discussion, transaction, and/or planned action of the City
Commission of the City of Deerfield Beach by Defendant ROBB is
subject to the principles of open government and public access
outlined in Fla. Stat. 286.011; (1) Meetings of public boards or
commissions must be open to the public, (2) Reasonable notice of
such meetings must be given, and (3) Minutes of the meetings must
be taken and promptly recorded.
43. Plaintiff STEVENS believes, and therefore alleges that Defendant
ROBB has knowingly and willfully violated Fla. Stat. 286.011,
Floridas Sunshine Law.
44. The penalties for violation of Floridas Sunshine Law are stated as
follows:
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(3)(a) Any public officer who violates any provision of this sectionis guilty of a noncriminal infraction, punishable by fine notexceeding $500.
(b) Any person who is a member of a board or commission or ofany state agency or authority of any county, municipal corporation,or political subdivision who knowingly violates the provisions of thissection by attending a meeting not held in accordance with theprovisions hereof is guilty of a misdemeanor of the second degree,punishable as provided in s. 775.082 or s. 775.083.
(c) Conduct which occurs outside the state which would constitutea knowing violation of this section is a misdemeanor of the seconddegree, punishable as provided in s. 775.082 or s. 775.083.
Fla. Stat. 286.011(3)(a)(b)(c)
45. To bring suit here to enforce compliance with Floridas Public
Records and Sunshine Laws Plaintiff has retained the services of
the Law Offices of David A. Frankel, P.A. and agreed to pay a
reasonable fee.
WHEREFORE Plaintiff STEVENS seeks order of this honorable Court,
and prays relief that:
a. the Court determine and identify the emails properly subject to
Plaintiffs request of August 8. 2013 within the possession or control
of Defendants.
b. The Court determine and identify any emails which violate the
mandate, scope and spirit of Fla. Stat. 286.001 by Defendant
ROBB.
c. The Court declare Defendant ROBB to be in violation of any
applicable portions of Fla. Stat. 286.011.
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d. The Court impose penalties against Defendant ROBB to include
penalties proscribed in Fla. Stat. 286.011(3)(a)(b) or (c), Plaintiffs
costs of suit, expenses and attorneys fees.
e. Plaintiff STEVENS demands trial by jury on all claims so triable.
SUBMITTED this 28th day of October, 2013:
/s/ David A. Frankel
DAVID A. FRANKEL, Esq.
Law Offices of David A. Frankel, P.A.20 South East Twentieth Street
Fort Lauderdale, Florida 33316(954) 557-2244Fla. Bar No. 741779designated email- davidfrankel7@gmail.com
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