Filing # 186828660 E-Filed 11/27/2023 05:44:02 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL

IN AND FOR ORANGE COUNTY, FLORIDA

GEORGE OLIVER

Plaintiff
Case No.
v.

IMMEDIATE HEARING
MELANIE SIBBITT in her official capacity REQUESTED PURSUANT TO
as Clerk of the City of Ocoee, and BILL COWLES, SECTION 86.111, FLA. STAT.
in his official capacity as Supervisor of Elections
for Orange County, Florida,

Defendants.
I

VERIFIED COMPLAINT

Plaintiff, George Oliver, III, sues Defendants, Melanie Sibbitt, in her official capacity as

Clerk of the City of Ocoee and Bill Cowles, in his official capacity as Supervisor of Elections for

Orange County, Florida, and states:

JURISDICTION AND VENUE

1. This is a Complaint seeking relief in mandamus and in the alternative claims for declaratory

judgment and injunctive relief.

2. These causes of action occurred in Orange County, Florida in the City of Ocoee, where

Plaintiff seeks to qualify as a candidate for City Commission in the City of Ocoee and the City of

Ocoee Commission of the City of Ocoee instructed the City Clerk to enact a qualification for office

that is outside of requirements listed under "Eligibility" for office in the City of Ocoee charter.

3. All relief sought is within this Court's jurisdiction.

THE PARTIES

4. Plaintiff is an intended candidate for City of Ocoee, City Commission.

5. As discussed herein, Plaintiff submitted forms DS-DE 9 (Appointment of Campaign

Treasurer) and DS-DE 84 (Statement of Candidate) to the City of Ocoee clerk's office, signifying

his intention to run for office.

6. Defendant Melanie Sibbitt is the Clerk of the City of Ocoee.

7. Defendant Bill Cowles is the Supervisor of Elections for Orange County, Florida, which is

conducting the March 19, 2024 election. The Supervisor is joined in his official capacity as a

necessary and indispensable party for the purpose of the relief sought.

REQUIREMENTS FOR QUALIFICATION FOR CITY COMMISSION CANDIDATES

IN THE CITY OF OCOEE

8. The City Charter of the City of Ocoee provides a list of requirements that permit an elector

to be eligible to serve as a City Commissioner.

9. First, to be an elector, per Section 97.041, Florida Statutes a person must be: 1) at least 18

years of age; 2.) a citizen of the United States; 3.) a legal resident of the State of Florida; 4.) a legal

resident of the county in which that person seeks to be registered; 5) registers pursuant to the

Florida Election Code.

10. The City Charter places additional requirements on an elector to be eligible to run for City

Commission at Section C-11 of the City of Ocoee Charter.

City of Ocoee Charter at Section C-11., entitled,

"
11. Pursuant to the Eligibility",

Only qualified electors of the city shall be eligible to qualify for and to hold the offices of
Mayor and Commissioner. Each candidate for the office of Mayor shall, at the time of
quali in. as a candidate for such office, be a bona fide resident of the city. The Mayor
shall, during the entire term of office, be a bona fide resident of the city. Each candidate for
the office of Commissioner shall, at the time of qualifying as a candidate for such office, be
a bona fide resident of the single-member district which such candidate seeks to
represent. Each Commissioner shall, during the entire term of office, be a bona fide
resident of the single-member district which such Commissioner represents. Effective
with each first full term commencing following January 1, 2022, the Mayor or a
commissioner who has held the same district office for two full terms is prohibited from
appearing on the ballot for election to that office.
 12. Accordingly, in order to be a qualified elector, one must be an elector, be qualified (by

filing the appropriate forms and paying the appropriate fee), be a bona fide resident of the city,

live in their district at the time of qualification and during their term in office remain a resident of

their district.

13. Pursuant to Section 5-3 of the City Charter of the City of Ocoee in order to qualify as a

candidate for City of Ocoee City Commission an intended candidate shall with the City Clerk

qualification papers and a qualifying fee.

PLAINTIFF PREVIOUSLY SERVED AS A MEMBER OF THE CITY COMMISSION

AND RESIGNED HIS POSITION TO RUN FOR MAYOR

14. Plaintiff previously served as a member of the City of Ocoee City Commission, District 4.

15. On January 10, 2023, Plaintiff resigned his position and ran for Mayor of the City of Ocoee

pursuant to Florida's "resign to rue law, Section 99.012, Florida Statutes, which provides (in

pertinent part):

(3)(a) No officer may qualify as a candidate for another state, district, county, or
municipal public office if the terms or any part thereof run concurrently with each
other without resigning from the office he or she presently holds.
(b) The resignation is irrevocable.

16. According to Plaintiff s letter of resignation, his resignation became effective March

21, 2023.

17. Plaintiff was not elected Mayor of the City of Ocoee and resigned his position.

18. On March 21, 2023, the Mayor, Rusty Johnson, was sworn in and held a Special Session

to immediately appoint a successor for the vacant seat of District 4 Commissioner.

19. Ages Hart was appointed by the City of Ocoee to serve as District 4 Commissioner.

OCOEE CITY COMMISSION SETS JUNE 13, 2023 ELECTION AND QUALIFIES
PLAINITFF AS A CANDIDATE

20. The City of Ocoee, City Commission, then approved a Special Election to be held in 90

days, on June 13, 2023.

 21. Plaintiff qualified as a candidate in the June 13, 2023 election.

22. On April 18, 2023, during a City Commission Meeting, the Commissioner for District 1,

Scott Kennedy and the Mayor of Ocoee, Rusty Johnson challenged the City Attorney's opinion

regarding the scheduling of the June 13th Special Election, contending that the June 13th Special

Election could be moved to March 19th 2024.

23. It is Plaintiff s understanding that the City Attorney disagreed with the actions of the

commission of the City Charter and on April 25th 2023, the City Attorney submitted his Letter of

Resignation after 13 years of service.

24. On May 2, 2023, the City Commission created a resolution to rescind their previously

approved Special Election (June 13, 2023) citing that the city will create a
general city election on

March 19, 2024.

THE CITY CREATED EXTRA QUALIFICATIONS REQUIREMENTS FOR

PLAINTIFF DURING A CITY COMMISSION MEETING

25. On November 7, 2023, the City Commission for the City of Ocoee conducted a City

Commision Meeting to discuss how to disqualify Plaintiff from qualifying for the March 19th 2024

election.

26. During the November 7, 2023 meeting, on the eve of qualifiying, members of the City

Commission openly discussed the candidacy of Plaintiff and how to block Plaintiff from

qualifying.

27. Members of the commission1, from the dias, during the meeting actually asked Plaintiff if

he would run for office or not and based their decision to move forward with their interpretation

and issuing a directive to the City Clerk concerning disqualifying Plaintiff

'Mayor Rusty Johnson, and Commissioner Scott Kennedy stated during the Commission meeting
that they would not pass their Resolution concerning eligibility of Plaintiff if Plaintiff stated during
the Committee meeting that he would not run for office.
4
 28. The City of Ocoee, City Commission decided to issue a directive to the City Clerk to

disqaulify Plaintiff based on its isolated reading of Section C-17(c), which states:

C. Filling of vacancies. If any vacancy, other than the Office of Mayor, in occurs
the City Commission, an eligible person shall be selected by the City Commission
within thirty (30) days of the vacancy to serve until the successor is elected. If a
vacancy occurs in the office of Mayor, the Mayor pro tem shall serve as an interim
Mayor until the successor is elected. The City Commission shall appoint an
interim Commissioner to fill the vacancy created by the Mayor pro tem serving
as Mayor; such interim Commissioner shall serve until such time as a Mayor is
elected. The Mayor pro tem shall resume representation of his single-member
district for the remainder of the term. The successor to the office of Mayor or
Commissioner shall be elected at the next general city election if such election is
to be held within twelve (12) months of the vacancy. If a general city election will
not be held within twelve (12) months, the successor shall be elected at a special
election which shall be called by the City Commission within ninety (90) days of
the vacancy. The successor shall serve for the unexpired term of the member who
created the vacancy. If all members of the City Commission are removed at the
same time, the Governor of the State of Florida shall appoint an interim City
Commission that shall call a special election within ninety (90) days of
appointment.

29. During the November 7, 2023 meeting, the city attorney advised the city commission that

there were additional eligability requirements that served to disqualify a candidate who previously

resigned his position, based on his interpretation of Section C-17(c), which was a different position

than the position that the City previously took relative to the qualification of Plaintiff as a candidate

for City Commission. Notwithstanding the City's prior positiion, the city attorney argued that the

term "successor" means that the candidate who resigned to run disqualified the candidate from

running for office.

30. But the City Commission's interpretation fails to afford any meaning to the context of the

underlying charter provision. The Charter provides at C-17 and states:

C-17. -

Vacancies; forfeiture of office; filling of vacancies.

A. Vacancies. The office of a member of the City Commission shall become

vacant upon the member's death, resignation, forfeiture of office or removal from
office in any manner authorized by law.
 B. Forfeiture of office. Any member of the City Commission shall forfeit his
office if he lacks at any time during one's term of office any qualification for the
office prescribed by this Charter or by law or is convicted of a felony or any crime
involving moral turpitude. The provisions of this subsection shall be exercised in
accordance with the provisions of C-10.

31. The term "vacancy" as it is used in Section C-17 means member's death, resignation,

forfeiture of office or removal from office ---

not that a member who resigns office to run for

another office is prohibited from running for that office after having previously resigned, if the

City Charter took that position it would have been included in Section C-11,
"

Eligibility".

32. Instead, the City had to instruct its Clerk to find Plaintiff ineligible for office because

without taking that action, the Clerk would have follow the plain language of the Charter in C-11

and would have qualified Plaintiff as she did in April for the June 2023 election.

33. Additionally, the City seemingly takes the position that it may pick and chose provisions

within the City Charter to seemingly enforce while openly ignoring the plain language of the City

Charter in other circumstances. (See, Section C-21)`.

34. After the November 7, 2023 Commission meeting, Plaintiff received a letter from

Defendant, Melanie Sibbitt (attached as Exhibit 1). The letter states that Plaintiff will not be

permitted to qualify as a candidate for City of Ocoee City Counsel, stating:

I regret to inform you that pursuant to Section C-10 of the Ocoee City Charter, "The
City Commission shall be the judge of the election and qualifications of its members
and of the grounds for forfeiture of their office...". On November 7, 2023, the City
Commission voted 4-1 in support of a motion finding that you are not qualified to
run for the District 4 City Commission seat during the City's general election on

March 19, 2024, to complete the unexpired term created by your resignation. The
City received your signed resignation letter on January 9, 2023, "effective on the
date that the Mayor is sworn into office in 2023....

2
Section C-21, of the City of Ocoee City Charter provides in pertinent part, "Within one (1) year
of commencement of employment, the City Manager shall become a resident of the city and shall
remain a resident of the City while employed as City Manager." Even though the City Manager
for the City of Ocoee has been employed as City Manager for more than one year and still does
not live within the City of Ocoee City Limits.

6
 Section C-17 of the City Charter requires the City to hold an election within one
year of a Commissioner's resignation to choose a successor, stating, "The successor
shall serve for the unexpired term of the member who created the vacancy." The
City Attorney interpreted this language to mean that the "successoe cannot be the
same person as "the member who created the vacancy". A majority of the City
Commission agreed with this interpretation.

In light of your filing of DS-DE 9 (Appointment of Campaign Treasurer) and DS-

DE 84 (Statement of Candidate) with the City Clerk's Office, signifying your
intention to run, and considering the actions undertaken by the City Commission as
mentioned earlier, we regret to inform you that we cannot accept any documentation
that would validate your candidacy for the District 4 City Commission seat on March
19, 2024. Please know that this letter is being sent after careful consideration of the
City Commission's decision and related interpretations, and it is conveyed to you
with the utmost respect.
35. Under Florida law, "When the State imposes a burden upon access to the ballot, that

burden must be clearly delineated; thus, any doubt as to the meaning of statutory terms

should be resolved broadly in favor of ballot access." Reform Party ofFlorida v. Black, 885

So. 2d 303, (Fla. 2004).

36. Plaintiff is not a member of the Commission, nor was he elected to serve, the Charter

does not give the City the right to judge the qualifications of intended candidates, instead,

Section C-10 of the Ocoee City Charter, "The City Commission shall be the judge of the
election and qualifications of its members and of the grounds for forfeiture of their office...".

Because Plaintiff is not a member, the City's action to disqualify him as a candidate is prima

facie void. See, McPherson v. Flynn, 397 So. 2d 665, (Fla. 1981).

37. This case involves the constitutional right of individuals to associate for the

advancement of political beliefs and the constitutional right of qualified voters to cast their votes

effectively.

38. Here, the City of Ocoee changed its prior interpretation of its own Charter, took official

action to instruct its Clerk to disqualify Plaintiff as a candidate for City Commission to prohibit

him for qualifying for office.

7
 COUNT I
PETITION FOR WRIT OF MANDAMUS

39. Plaintiff realleges paragraphs 1-38 as if fully set forth herein.

40. Plaintiff has a clear legal right to qualification as a candidate for City of Ocoee City

Commission because he fully and substantially complied with the requirements under Florida law

and the City Charter of the City of Ocoee.

41. Specifically, Plaintiff meets the requirements set forth for being a qualified elector under

Florida law.

42. Plaintiff resides within District 4 of the City of Ocoee.

43. Plaintiff is prepared to pay the required qualifying fee.

44. The City of Ocoee qualified Plaintiff as a candidate for City Commission on April 21,
2023.

45. Without intervention from the City Attorney and Members of the City Commission, the

City Clerk would have qualified Plaintiff during the qualifying week of December 4, 2022 as she

qualified him on April 21, 2023.

46. Accordingly, on November 7, 2023, the City Commission for the City of Ocoee conducted

a City Commision Meeting to discuss how to disqualify Plaintiff from qualifying for the March

19th 2024 election.

a. Members of the City Commission openly discussed the candidacy of Plaintiff and

how to block Plaintiff from qualifying.

b. Members of the commission, from the dias, during the meeting actually asked

Plaintiff if he would run for office or not and based their decision to move forward

with their interpretation and issuing a directive to the City Clerk concerning

disqualifying Plaintiff

8
 47. The right to be a candidate for public office is a valuable right, and no one should be denied

this right unless the Constitution or applicable valid law expressly declares him ineligible. Ervin

v. Collins 85 So. 2d 852 (Fla. 1956); Hart v. Naples, 299 So. 2d 17 (Fla. 1974). The imposition of

restrictions upon the right of a person to hold public office should receive a liberal construction in

favor of the people exercising freedom of choice in the selection of their public officers. Ervin v.

Collins, supra. If there be doubt or ambiguity in the provisions, the doubt or ambiguity must be

resolved in favor of eligibility. Ervin v. Collins, supra.

48. The Supreme Court of Mississippi in Bozeman v. Laird, 45 So. 2d 722 (1908), in a case

that is on point, stated that one elected sheriff of a newly created county, the legislature limiting

the initial term to one and one-half years, was eligible to succeed himself for the full constitutional

term of four years, notwithstanding a constitutional provision providing that the sheriff shall be

ineligible to immediately succeed himself in office; the constitutional limitation not applying to a

sheriff who had served only a

part of a full term.

49. Under Florida law, "When the State imposes a burden upon access to the ballot, that

burden must be clearly delineated; thus, any doubt as to the meaning of statutory terms

should be resolved broadly in favor of ballot access." Reform Party ofFlorida v. Black, 885

So. 2d 303, (Fla. 2004).

50. The City Clerk has an obligation to certify Plaintiff as a qualified candidate.

51.The Supervisor of Elections has a clear legal duty to place the names of qualified

candidates on the ballots.

52. Without the Court's intervention, Plaintiff will be precluded from being a candidate in the

election. Plaintiff has no other remedy to contest his unlawful exclusion from the ballot.

WHEREFORE. Plaintiff respectfully requests that the Court issue a writ of mandamus requiring

the Clerk to add Plaintiffs name to the list of qualified candidates for election to the City of Ocoee City

9
 Commission, District 4 and requiring the Orange County Supervisor of Elections to add Plaintiffs name

to the intended ballots for the election to be held on March 19, 2024 and providing such other relief as is

necessary.

COUNT II
DECLARATORY RELIEF

53. Plaintiff realleges paragraphs 1 —

38 as if fully set forth herein.

54. This is an action, in the alternative, against all Defendants for declaratory judgment

and supplemental relief pursuant to Section 86.011, Florida Statutes.

55. An actual. present and practical need for a determination of Plaintiffs status as a

qualified candidate is appropriate and necessary.

56. Plaintiff must be determined to be a duly qualified candidate for City of Ocoee, City

Commission, District 4 because Plaintiff fully (and substantially) complied with the letter of the

law in Section 11 of the City Charter of the City of Ocoee and must be qualified as a candidate

for City Commission.

57. Plaintiff has satisfied applicable laws and accordingly must be included on the ballot.

58. Moreover, there is doubt as to whether the City disqualify Plaintiff over hyper-

technical concerns about his resignation especially given that the Clerk previously qualified

Plaintiff as a candidate for this office even after his resignation in order to run for Mayor of the

City.

59. Plaintiff is entitled to have doubt about the validity of the City's action serving to

disqualify Plaintiff

60. Since the City itself violated legal requirements and misconstrues its own charter and has done

so with the overt intention of denying Plaintiff the ability to qualify as a candidate, the electorate should

not be denied the opportunity to vote for Plaintiff.

10
 WHEREFORE, Plaintiff respectfully requests that this Court issue a declaratory judgment

declaring that Plaintiff is a qualified candidate for City of Ocoee, City Commission, District 4, ordering

the City Clerk to add Plaintiffs name to the list of qualified candidates for election to City of Ocoee City

Commission, District 4, ordering the Supervisor of Elections to add Plaintiffs name to the intended ballots

for the primary election to be held on March 19, 2024, requiring the City of Ocoee to pay Plaintiffs

reasonable attorneysfees and costs and providing such other relief, as is necessary.

COUNT III
INJUNCTIVE RELIEF

58. Plaintiff realleges paragraphs 1 -

38 as if fully set forth.

59. This is an action for temporary and permanent injunctive relief against all parties

60. Before the March 19, 2024 election, the City Clerk is required to certify to the

Supervisor of Elections the names of qualified candidates to be included on military overseas ballots

and all regular ballots.

61. All absent stateside and military overseas ballots are expected to be printed and

mailed by the Supervisor of Elections by within 45 days of the election (February 2, 2024).

62. The Supervisor of Elections will additionally send ballots to domestic voters opting

to vote by mail during the week of February 12, 2024.

63. Early voting for the election will commence by March 2024.

64. The Supervisor of Elections will be required to prepare and print ballots for the

March 19th election in advance of the deadlines identified above. If the Court finds that Plaintiff

is a
qualified candidate for City of Ocoee City Commission, such ballots would be void.

65. Without the opportunity to vote for Plaintiff in the City of Ocoee, City Commission,

District 4 election, electors in City of Ocoee, City Commission District 4 will be denied the right

to a fair and uniform election and Plaintiff will be irreparably injured.

11
 66. Granting the injunction would protect the public interest by restoring the right to

vote and creating an accurate ballot for the election by including Plaintiff as a qualified

candidate.

WHEREFORE. Plaintiff requests that this Court grant a permanent injunction which

requires the City Clerk to certify Plaintiff as a qualified candidate for City of Ocoee, City

Commission, District 4, requires the Supervisor of Elections to prepare and print ballots for the

March 19, 2024 election that include Plaintiff as a qualified candidate for election to City of

Ocoee, City Commission, District 4. and grant such other relief as is necessary.

Respectfully submitted this 27th day of November, 2023.

/s/ Leonard M Collins

Leonard M. Collins (FBN 423210)
GRAYROBINSON P.A.
301 S. Bronough Street, Suite 600
Tallahassee, Florida 32302
Telephone: 850-577-9090
leonard.collins@gray-robinson.com
vanessa.reichel@gray-robinson.com

Attorney for Plaintiff, George Oliver

12
 VARIFICATION OF GEORGE OLIVER, III

STATE OF FLORIDA
County of
I, George Oliver, HI, having been duly sworn, hereby state under oath that I have read
the foregoing complaint and that the facts set forth therein are true and correct to the best of
my knowledge. information, and belief.
FURTHER AFFIANT SAYETH NAUGHT.

By: 1
Printed Name: 6 r7 /r

The foregoing instrument wp acknowledged before me by means of X physical presence

or online notarization,
individual was known
thislA
day of
or X produced
‘Nbt4.,
2023, by
identification.
CC0,-9
personally

Noy.,
SWORN TO AND SUBSCRIBED before me this 02/771\ of

2023., (Signature)
(AFFIX NOTARY SEAL)

(Printed Name)
:"4"bwaimeh""dbahah#1,,v,
TROY TAVARES TOLBERT

III .0

‘,47,41
Notary
Plblc ratH4
Ce3of8Flonda
44

my COMMIionixpitiresJan 11, 2027

oreromierouriorummumwme.

13
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished this

27th day of November 2023, to the Clerk of Court and Melanie Sibbitt, the Clerk of the City of

Ocoee and Bill Cowles, the Supervisor of Elections for Orange County, Florida.

/s/ Leonard M Collins

Leonard M. Collins (FBN 423210)
GRAYROBINSON, P.A.

14
Exhibit1
11$i0.4'
November 16, 2023
ocoee
florida

George Oliver III

Mayor
1687 Whitefriar Drive
Rusty Johnson
Ocoee, FL 34761
Commissioners
Scott R. Kennedy
District 1

Dear Mr. George Oliver III,

Rosemary Wilsen
District 2

Richard Firstner
District 3
I regret to inform you that pursuant to Section C-10 of the Ocoee City Charter, "The
City Commission shall be the judge of the election and qualifications of its members and
Ages Hart
District 4
of the grounds forforfeiture of their office... ". On November 7, 2023, the City Commission
voted 4-1 in support of a motion finding that you are not qualified to run for the District 4
City Commission seat during the City's general election on March 19, 2024, to complete
City Manager the unexpired term created by your resignation. The City received your signed resignation
Robert D. Frank
letter on January 9, 2023, "effective on the date that the Mayor is sworn into office in
2023....

Section C-17 of the City Charter requires the City to hold an election within one
year of a Commissioner's resignation to choose a successor, stating, "The successor shall
serve
for the unexpired term of the member who created the vacancy." The City Attorney
interpreted this language to mean that the "successor" cannot be the same person as "the
member who created the vacancy". A majority of the City Commission agreed with this
interpretation.

In light of your filing of DS-DE 9 (Appointment of Campaign Treasurer) and DS-

DE 84 (Statement of Candidate) with the City Clerk's Office, signifying your intention to
run, and considering the actions undertaken by the City Commission as mentioned earlier,
we regret to inform you that we cannot accept an); documentation that would validate your

candidacy for the District 4 City Commission seat on March 19, 2024. Please know that
this letter is being sent after careful consideration of the City Commission's decision and
related interpretations, and it is conveyed to you with the utmost respect.

Sincerely,

Melanie Sibbitt, MMC

City Clerk

Via: Regular Mail & Certified Mail

City of Ocoee •
1 N Bluford Avenue •
Ocoee, Florida 34761
(407) 905-3100 •
www.ocoee.org