Filing # 105846467 E-Filed 04/03/2020 02:13:00 PM

IN THE TWENTIETH JUDICIAL CIRCUIT, COURT IN AND FOR

COLLIER COUNTY, FLORIDA

REGINA L. DAYTON, and GENERAL JURISDICTION DIVISION

RAY SEWARD

Plaintiffs, Case No.

v.

CITY OF MARCO ISLAND and

ERIK BRECHNITZ,

Defendants.
_______________________________________/

COMPLAINT

Plaintiffs, REGINA L. DAYTON (“DAYTON”) and RAY SEWARD (“SEWARD”)

(collectively “PLAINTIFFS”), by and through their undersigned counsel and files suit against

Defendants, THE CITY OF MARCO ISLAND (“COMI”) and ERIK BRECHNITZ

(“BRECHNITZ”), (collectively “DEFENDANTS”), and in support thereof states as follows:

NATURE OF THE ACTION

1. This is an action under 42 USC §1983 Federal Civil Rights case under the First Amendment

of the United States Constitution as applied to the States through the United States

Constitution’s Fourteenth Amendment for the DEFENDNATS’ individual and collective

violations of PLAINITFFS’ constitutional rights.

JURISDICTION, VENUE AND PARTIES

2. Plaintiff, REGINA L. DAYTON is and at all times material hereto has been, a natural

person and resident of the City of Marco Island Florida, Collier County, Florida.

3. Plaintiff, RAY SEWARD is and at all times material hereto has been, a natural person and

resident of the City of Marco Island Florida, Collier County, Florida.

4. Defendant, THE CITY OF MARCO ISLAND, is a political subdivision of the State of

Florida and is located entirely in Collier County, Florida.

5. Defendant, ERIK BRECHNITZ, is the City of Marco Island Council Chairman and a

resident of the City of Marco Island, Florida.

6. This Court has concurrent subject-matter jurisdiction with our federal courts over federal

civil rights cases pursuant to 28 U.S.C. § 1343(a)(3).

7. There are no conditions precedent PLAINTIFFS must meet before filing this action

because § 768.28 Fla. Stat. (2016) is inapplicable to federal civil rights cases even if filed

in state court.

8. Venue is proper in the Twentieth Judicial Circuit because DEFENDANTS' individual and

collective unlawful violations under color of state law of PLAINTIFF'S constitutional

rights occurred in Collier County, Florida.

FACTUAL ALLEGATIONS

9. Defendant, the City of Marco Island, duly published and noticed a City Council meeting,

along with an accompanying agenda for a council meeting scheduled for January 21, 2020.

10. The scheduled City council meeting and agenda are available on the city’s website at

cityofmarcoisland.com.

11. On or about January 21, 2020, the City of Marco Island City Council held it’s noticed

meeting which was open to the public.

12. BRECNITZ was the Chairman presiding over the City Council meeting that took place on

or about January 21, 2020.

13. The PLAINTIFFS were both in attendance at this meeting.

14. Notably, the city agenda provides for a section titled “Citizen’s Comments” where

attendees have an opportunity to speak and address the City Council during the meeting.
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15. DAYTON waited her turn and approached the podium to address the City Council.

16. DAYTON had a speech prepared where she would be discussing topics related to

Councilor Larry Honig.

17. Specifically, DAYTON was going to address Councilor Honig’s contradictory statements

regarding a website called marcopolitics.com.

18. The website, marcopolitics.com, published negative articles about candidates running for

City Council in 2018, sitting members of the City Council, media outlets, private citizens

such as Plaintiff, SEWARD and attacked the reputation of the then police chief of Marco

Island. Simultaneously the website supported three individuals running for the 2018 City

of Marco Island Council, including Defendant, BRECHNITZ.

19. DAYTON was going to address in her prepared speech to the City Council how Honig first

made statements that he was not responsible for the content on the website.

20. However, it was later revealed during the course of a Florida Elections Commission

(“FEC”) complaint investigation against Honig that Honig responded to several inquiries

from the FEC and provided the he was the only one who provided content for the website,

marcopolitics.com.

21. DAYTON started to speak regarding the topic of Honig and was quickly interrupted by

Defendant, BRECHNITZ, and was told that she could not speak about Councilor Honig

and could only speak about policy issues.

22. However, COMI’s published agenda does not provide that the time allotted for Citizen’s

Comments was restricted to only comments concerning policy issues. Furthermore, it is

common practice during the Citizen’s Comment section for speakers to make comments

about City Councilors and to refer to council members by name.

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23. In fact, the City of Marco Island City Council Rules of Procedure Section (7)(C)(2)

provides that “The Public shall be encouraged to address City Council on any subject

matter not scheduled on the agenda during the Citizens’ Comments section of the agenda.”

24. DAYTON tried to explain the topics she was discussing and how they affected the residents

of the City of Marco Island.

25. BRECHNITZ again interrupted DAYTON and in doing so denied DAYTON’s First

Amendment right to free speech.

26. After DAYTON was continuously interrupted and prevented from speaking, Defendant,

SEWARD attempted to speak concerning the same topic regarding Councilor Honig.

27. SEWARD approached the podium during the time allotted for Citizens Comments as

provided for in the published COMI agenda and was also interrupted by BRECHNITZ and

was not allowed to speak and was also denied his First Amendment right to free speech.

28. BRECHNITZ again provided that he would not allow comments regarding Councilor

Honig.

29. Both PLAINTIFFS were stopped from discussing a website owned by city Councilor,

Larry Honig, the impacts of Honig’s contradictory statements and the impact on the

residents of Marco Island.

30. PLAINTIFFS actions at all times were peaceful and were not intended to incite or attack

anyone.

31. COMI and BRECHNITZ have since acknowledged that their actions were improper and

in subsequent City Council meetings, Chairman BERCHNITZ has conceded that he

overstepped his authority in denying DAYTON and SEWARD their opportunity to speak.

32. Video of City Council meetings can be found at www.cityofmarcoisland.com/citycouncil.

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33. Lastly, the attorney for the City of Marco Island issued a memo on the topic which is

attached hereto as Exhibit A and speaks for itself.

COUNT I
42 U.S. CODE §1983 VIOLATION OF PLAINTIFFS
FIRST AMENDMENT RIGHT TO FREE SPEECH
33. PLAINTIFFS reallege and re-asserts its allegations set forth in ¶¶ 1 - 33 as if fully set forth

herein.

34. The First Amendment of the United States Constitution provides that "Congress shall make

no law ... abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances."

35. The First Amendment is applicable to the City of Marco Island through the Fourteenth

Amendment to the United States Constitution.

36. Article I, Section 4 of the Florida Constitution states, "Every person may speak, write and

publish sentiments on all subjects ... No law shall be passed to restrain or abridge the liberty

of speech or of the press."

37. PLAINTIFFS are entitled to protection under the First Amendment of the United States

Constitution.

38. Under the First Amendment, no person, acting under color of state law, may abridge the

PLAINTIFFS right to speak freely.

39. Acting under color of law, DEFENDNATS have deprived PLAINTIFFS of their right to

engage in protected speech in violation of PLAINTIFFS Free Speech Rights.

40. Specifically, BRECHNITZ repeatedly interrupted PLAINTIFFS who were speaking

during the designated time for Citizen’s Comments and prevented PLAINTIFFS from

making any comments concerning Councilor Honig.

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41. Defendant's restriction on PLAINTIFFS speech is content and viewpoint based in violation

of Plaintiffs Free Speech Rights.

42. Defendant's true purpose for preventing PLAINTIFFS from speaking at the community

council meeting was to silence the content and viewpoint expressed by PLAINTIFFS

speech.

43. As a direct and proximate result of DEFENDANT's violation of PLAINTIFFS free speech

rights, PLAINTIFFS have suffered irreparable harm, including the loss of their

constitutional rights, entitling PLAINTIFFS to declaratory and injunctive relief and all

relief necessary to make PLAINTIFFS whole as provided under 42 USC. § 1983.

WHEREFORE, Plaintiffs, REGINA L. DAYTON and Ray SEWARD, respectfully

request this Honorable Court enter its Judgment compelling (1) declaratory and injunctive

relief; (2) Punitive damages against all DEFENDANTS; (3) Award to PLAINTIFFS

reasonable attorneys' fees incurred in connection with this action pursuant to 42 USC. §

1983 from all DEFENDANTS and for any other relief this Court deems just and proper.

Respectfully submitted,

DIANE S. PERERA, P.A.

Counsel for Plaintiffs’
12485 S.W. 137 Ave., Suite 106
Miami, FL 33186
Phone: 305-252-1388
dperera@dpconstructionlaw.com

By: _/s/ Diane Perera__________

Diane S. Perera, Esq.
FL Bar No. 994723

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Exhibit A

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