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IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA

CITIZENS FOR SUNSHINE, a Florida not-for-profit corporation, Plaintiff, v. CITY OF GROVELAND, a Florida municaplity, JAMES GEARHART, and TIM LOUCKS, Defendants. ___________________________________/ EMERGENCY MOTION FOR TEMPORARY INJUNCTION Plaintiff, Citizens for Sunshine, Inc., ("Citizens") through counsel, and pursuant to Rule 1.610, Fla. R. Civ. P., moves for the issuance of a temporary injunction against Defendants, City of Groveland, Florida, James Gearhart and Tim Loucks, and in support would show as follows: INTRODUCTION This is an action under Article I, Sec. 24(b), of the Florida Constitution and section 286.011, Florida Statutes, the Government-in-the-Sunshine Law ("Sunshine Law") against the City of Groveland, its Mayor and Vice Mayor seeking declaratory and injunctive relief. The Mayor and Vice Mayor met a third individual in a grocery store parking lot and had discussions about police dispatching, which was then under consideration before the city council to outsource to the Lake County Sheriffs Office. These discussions were not noticed to the public and violate the Sunshine Law. CASE NO.

FACTS 1. Plaintiff, Citizens for Sunshine, Inc., (Citizens), is a non-profit

corporation and a citizen within the State of Florida within the meaning of 286.011, Florida Statutes. The purpose and mission of Citizens is to promote and enforce

compliance with Floridas open-government laws under Art. I, 24, of the Florida Constitution, and chapters 119 and 286, Florida Statutes. Since 2008, Citizens has been involved in numerous legal actions in the trial and appellate courts throughout the State of Florida, both as a party and as amicus curiae. Corporations are not precluded from pursuing the public's statutory remedy on behalf of the public's interest in open government. See Silver Exp. Co. v. Dist. Bd. of Lower Tribunal Trustees of Miami-Dade Cmty. Coll., 691 So. 2d 1099, 1101 (Fla. 3d DCA 1997). The statute vindicates a public policy and Citizens interests lie in protection of Floridas open government laws. No special injury is required for standing to maintain an action under 286.011, Florida Statutes. See Godheim v. City of Tampa, 426 So. 2d 1084, 1088 (Fla. 2d DCA 1983). 2. Defendant, City of Groveland, Florida, (City) is Florida municipal

organization granted a Charter by the legislature in 1922. Under Sec. 3.01 of its Charter, all legislative powers are vested in a five-member city council (city council). The city council is a joint collegial body and board within the meaning of Art. I, 24(b), Fla. Const., and 286.011, Fla. Stat. 3. 4. 5. James Gearhart is an elected member of and Mayor of the city council. Tim Loucks is an elected member of and Vice Mayor of the city council. The City operates a Communications Department which handles dispatch

calls for service, via police radio to the officers in the field coordinating responses to the

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citizens of Groveland that are in need of assistance. Communication officers also provide general information to citizens by phone and in person, serve as the records custodians for the records division for the Police Department, and provides the mandatory reports required by the Florida Department of Law Enforcement and the Federal Bureau of Investigation. 6. On March 4, 2013, the city council listened to a presentation on a lease

purchase agreement for software relating to police dispatch operations support. The city council directed the city manager to work with the Police Department on other offers. 7. During March and April 2013, Defendant Gearhart initiated discussions

with the City Manager and Police Chief on the potential for transferring the City of Groveland's dispatch services to the Lake County Sheriffs Office Emergency Operations Center. 8. On May 20, 2013, Defendant Gearhart asked during a city council

meeting whether other members of the city council were interested in listening to a proposal about the Lake County Sheriffs Office taking over dispatch operations (the proposal). 9. Each council member stated during the meeting of May 20, 2013, that they

had been contacted about the proposal. The consensus of the city council was to hear the proposal from the Lake County Sheriffs Office about transferring communications services. The City Manager and Police Chief were asked to collect information on the cost and function and bring the matter back to the city council.

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10.

On June 20, 2013, Defendants Gearhart and Loucks met in the parking lot

of a grocery store and then approached Sgt. George Penvose who was also in the parking lot. 11. After confronting Sgt. Penvose, Defendants Gearhart and Loucks began to

talk about official city business that was then-pending before the city council. 12. Specifically, Defendants Gearhart and Loucks jointly asked Sgt. Penvose

questions about police dispatching and the proposal by the Lake County Sheriffs Office to take over dispatch operations. 13. At the time of this meeting in the parking lot, Defendants Gearhart and

Loucks knew that the issue of police dispatching and the proposal from the Lake County Sheriffs Office was then pending before the city council and was scheduled to be heard at a meeting of the city council within the foreseeable future. 14. The city council agenda for July 15, 2013, listed an item titled Police

Department Dispatch Functional and Cost Analysis. 15. On July 15, 2013, the city council had extensive discussions about the

proposal from the Lake County Sheriffs Office. The City Manager was directed to bring back to the city council an updated cost analysis to show the true loaded cost of providing in-house dispatching services. 16. On August 5, 2013, the city council considered whether it should take up

for discussion an item related to police dispatch operations. The city council agreed to table the discussion until the next meeting. 17. The city council agenda for August 19, 2013, listed an item titled Police

Department Dispatch Analysis.

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18.

At the August 19, 2013 city council meeting, the city council approved a

motion to accept Lake County Sheriffs Office proposal for conducting dispatch operations. 19. At the time of meeting in the grocery store parking lot, Defendants

Gearhart and Loucks knew or reasonably should have known that it was foreseeable that matters pertaining to the proposal of the Lake County Sheriffs Office taking over police dispatch operations was pending or would be coming before the city council. 20. The meeting at the grocery store parking lot was not noticed to the public

and occurred outside the record of any official city council proceeding. 21. The city council is required by law to provide reasonable notice of all

discussions, meetings, comments and proceedings between two or more of its members. 22. The city council did not provide reasonable notice to the public of the

meeting, discussions and comments between two or more council members held in the parking lot of the grocery store that occurred on June 20, 2013. 23. The meeting and discussion between Defendants Gearhart and Loucks that

occurred in the grocery store parking lot on June 20, 2013, was a meeting at which the official business of the city council was discussed, to wit: a proposal by the Lake County Sheriffs Office to take over police dispatch operations. 24. By failing to provide the public with reasonable notice of the discussions

and comments of two or more city council members, the city council violated the Sunshine Law. 25. The unnoticed discussions and comments between two or more city

council members that occurred on June 20, 2013, tainted the proceedings held on July 15,

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2013, and August 19, 2013, as the public was not aware of the details of the discussions and comments between two or more city council members on the proposal by the Lake County Sheriffs Office relating to proposal to take over dispatch operations. 26. Plaintiff and the public have been irreparably harmed by the failure of the

city council to provide reasonable notice of the discussions and comments between two or more of its members that occurred on June 20, 2013, relating to the proposal of the Lake County Sheriffs Office taking over police dispatch operations. Violations of the Sunshine Law constitute irreparable harm per se. 27. Additionally, members of the public have been deprived of the

opportunity to listen to the comments and discussions of Defendants Gearhart and Loucks relating to the proposal by the Sheriff of Lake County to take over police dispatch operations, an issue of substantial public concern. 28. 29. 30. 31. Plaintiff has a substantial likelihood of success on the merits. Plaintiff has no other adequate remedy at law. The requested injunction serves the public interest. Plaintiff has retained the undersigned to bring this action and has agreed to

pay a reasonable attorneys fee for same. 32. 33. this action. WHEREFORE, Plaintiff prays for the following relief: A. a declaration that the meeting and discussion between Defendants Plaintiff has incurred costs for bringing this action. Plaintiff is entitled to an award of attorney fees and costs for prosecuting

Gearhart and Loucks that occurred in the grocery store parking lot on June 20, 2013, was

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a meeting at which the official business of the city council was discussed, to wit: a proposal by the Lake County Sheriffs Office to take over police dispatch operations. B. a declaration that the city council failed to provide reasonable notice to the

public of the meeting, discussions and comments of two or more of its members held on June 20, 2013; C. enjoining the city council, its agents, and all other persons acting in

concert who are responsible for carrying out the city councils actions, from implementing any action of the city council taken at the meeting held on July 15, 2013, August 19, 2013, including any contractual arrangements with the Lake County Sheriffs Office relating to proposal to take over dispatch operations; D. and E. any other relief the Court deems just and proper. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY INJUNCTION awarding attorney fees and costs to Plaintiff for prosecuting this action;

The Florida Government-In-The-Sunshine law was enacted to protect the public from closed door politics. Pinellas County School Board v. Suncam, Inc., 829 So. 2d 989, 990 (Fla. 2d DCA 2002). Consequently, the law must be broadly construed to effect its remedial and protective purpose. The breadth of such right is virtually

unfettered. Id. (citation and internal quotation marks omitted). The statute should be construed to frustrate all evasive devices. Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 860 (Fla. 3d DCA 1994). The key provision of chapter 286, section 286.011(1), Fla. Stat., provides that:

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[a]ll meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings. I. Issuance of Injunction

Section 286.011(2), Fla. Stat., expressly provides that [t]he circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state. Under Rule 1.610, Fla. R. Civ. P., a temporary injunction may be granted only if the movant establishes: (1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest which support the entry of the injunction. Masters Freight, Inc. v. Servco, Inc., 915 So. 2d 666 (Fla. 2d DCA 2005). As will be demonstrated below, Plaintiff has met the requirements for entry of the requested injunction. A. Irreparable Injury

Violation of the statute itself constitutes irreparable injury. In Times Publishing Co. v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved on other grounds by Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985), the Second District Court of Appeal construed chapter 286 and stated that the statute is the equivalent of a legislative declaration that a violation of the statutory mandate constitutes an irreparable public injury. Id. at 476. [A] mere showing that the statute has been or is clearly about to be violated fully satisfies the requirement of showing irreparable injury. Id. See also Hobbs v. Weinkauf, 940 So. 2d 1151, 1153 (Fla. 2d DCA 2006) (statute which provides

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remedy of injunction upon violation requires no additional showing of harm.). Likewise, the Florida Supreme Court expressly approved of the relevant portion of the Second Districts decision in Williams in Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974), and stated that the [m]ere showing that the government in the sunshine law has been violated constitutes an irreparable public injury so that the ordinance is void Ab initio. Id. at 477. See also Silver Express Co. v. District Board of Lower Tribunal Trustees of Miami-Dade Community College, 691 So. 2d 1099, 1100 (Fla. 3d DCA 1997) (action taken at meeting in violation of Sunshine Law are void ab initio). Accordingly, Plaintiff has clearly established irreparable injury. B. No Legal Remedy

The Second District, in Williams, determined long ago that there is no legal remedy for violations of chapter 286 other than an injunction. 222 So. 2d at 477 (there obviously is no adequate remedy at law for meetings that do not comply with the Sunshine Law). Because the discussions and comments by the individual Defendants were without notice to the public, Plaintiff has no other adequate remedy at law than the entry of the requested injunction to prevent governmental action taken in violation of the Sunshine Law. C. Likelihood of Success

Plaintiff has demonstrated a substantial likelihood of success on the merits. There is little question that Defendants have violated the Sunshine Law. It is undisputed that the meeting held in the grocery store parking lot was not noticed to the public. The decision in Finch v. Seminole County Sch. Bd., 995 So. 2d 1068 (Fla. 5th DCA 2008), is particularly instructive. In that case, school board members in Seminole

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County attended a bus tour of neighborhoods that would be affected by a planned rezoning of attendance zones. The purpose of the tour was to enable the members of the school board to physically view the potentially impacted areas and to look at possible school bus routes that might be utilized, depending on which plan was finally adopted. During the bus tour, school board members were separated from each other by several rows of seats. Board members engaged in no discussion about their preferences for any of the plans, no opinions were expressed, and no vote was taken during the trip. Likewise, no minutes of anything that happened on the trip were taken. The school board viewed this as a fact finding trip, and thus not covered by the Sunshine Law. Id. at 1070. The Fifth District rejected this contention, stating: We conclude, however, that even if the School Board is entirely accurate with respect to the occurrences during the bus tour, the School Board still violated the Sunshine Law because the fact-finding exception does not apply to the ultimate decision making governmental authority. Id. at 1071-72. Even though there was no discussion during the bus tour, that fact was irrelevant to the appellate courts determination that the Sunshine Law was still violated. [The School Board] had ultimate decision-making authority; it was gathered together in a confined bus space; and it undoubtedly had the opportunity at that time to make decisions outside of the public's scrutiny. We conclude, therefore, that the conduct of the bus tour, indeed, constituted a violation of the Sunshine Law. Id. at 1073. In this case, two members of the city council met in a parking lot and had discussions and comments relating to the proposal by the Lake County Sheriffs Office to take over police dispatch operations. No notice was given to the public. The statutory requirement for notice is to apprise the public of the pendency of matters that might affect their rights, afford them the opportunity to appear and present

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their views, and afford them a reasonable time to make an appearance if they wished. Op.Atty.Gen., 73-170, May 17, 1973. Rhea v. City of Gainesville, 574 So. 2d 221, 222 (Fla. 1st DCA 1991). With respect to the lack of notice of the meeting in the grocery store parking lot, it is undisputed that public officials may not engage in substantive discussions by communicating with other sitting board or council members in any fashion, including at a restaurant or a parking lot. Similarly, discussions about the takeover by the Sheriff of police dispatch operations involve issues of significant public interest, and the elected officials may not circumvent the publics interest by resorting to discussions outside of the Sunshine Law. Company v. Williams: Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire Decision-making process that the legislature intended to affect by the enactment of the statute before us. This act is a declaration of public policy, the frustration of which constitutes irreparable injury to the public interest. Every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an official act, an indispensable requisite to formal action, within the meaning of the act. 222 So. 2d at 473. The foregoing demonstrates that Plaintiff has a substantial likelihood of succeeding on the merits of the Complaint. D. Public Interest As the court stated in Times Publishing

If ever there were a case which compels the conclusion that the granting of the requested injunction serves the public interest, violations of chapter 286 clearly present the issue. The statute was specifically enacted to protect the public interest in requiring that the Government operate in the Sunshine. Zorc v. City of Vero Beach, 722 So. 2d

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891, 897 (Fla. 4th DCA 1998) (the Sunshine Law was enacted for the public benefit). A 1992 amendment to the Florida Constitution elevated the publics right to government in the sunshine to constitutional proportions. Id. at 896. As stated in Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001): when the Legislature provides for an injunction in these circumstances, it has deliberately made the new public duty and its corresponding right of enforcement an integrated statutory prescription. By specifying that the public interest requires that a certain duty be vindicated in the courts and not primarily within other branches of government, the Legislature is well within its powers. Id. at 205. Based on the foregoing, granting the requested injunction serves a public interest of the highest order. Respectfully submitted,

/s Andrea Flynn Mogensen____________________ ANDREA FLYNN MOGENSEN, Esquire The Law Office of Andrea Flynn Mogensen, P.A. 200 South Washington Boulevard, Suite 7 Sarasota FL 34236 Telephone: 941.955.1066 Facsimile: 941.866.7323 Florida Bar No. 0549681 amogensen@sunshinelitigation.com Attorney for Plaintiff

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