U.S. appeals court upholds dismissal of O’Boyle First Amendment claim

By Steve Plunkett

“Martin O’Boyle is a Gulf Stream resident who has long disliked town leadership.”

So begins an opinion by the 11th Circuit Court of Appeals affirming a U.S. District Court ruling in Gulf Stream’s favor that the town did not violate the First Amendment rights of O’Boyle, his son Jonathan O’Boyle and their lawyer William Ring.

The trio sued over what they alleged was retaliation by the town over extensive public records litigation and on appeal argued that they did not need to show a lack of probable cause in order to show retaliation.

But in this case, they did have to show the town did not have probable cause, a panel of three 11th Circuit judges ruled on Feb. 8.

The judges gave a short history of the case, which they called “the third in a saga that chronicles Martin O’Boyle’s feud with Gulf Stream and its leadership.” After the town denied him a building permit, he painted cartoons on his house ridiculing the mayor and hung signs criticizing town leaders on a truck parked at Town Hall.

He also began filing public records requests. Between 2013 and late 2014, “O’Boyle and his associates filed nearly 2,000 public records requests — many for vague and hardto-identify topics,” the judges wrote.

When the town did not respond in time, O’Boyle or his nonprofit Citizen’s Awareness Foundation Inc. would sue Gulf Stream under the state’s Sunshine Law.

In 2015, the town launched a three-pronged offensive against the records requests, which had overwhelmed Gulf Stream’s small municipal staff. It filed counterclaims in one of the records lawsuits in state court and asked for sanctions against Jonathan O’Boyle and Ring; Mayor Scott Morgan filed bar complaints against the two alleging ethical violations; and the town sued the O’Boyles, Ring and several others in federal court under the Racketeer Influenced and Corrupt Organizations Act.

But the Florida Bar declined to discipline Jonathan O’Boyle or Ring and the state court declined to sanction them; the state court also dismissed the counterclaims; and the federal court dismissed the RICO lawsuit.

After a town meeting in September 2015, town police saw Martin O’Boyle trying to write on a bulletin board in the lobby of Town Hall and confronted him to get him to stop.

They began arguing and eventually escorted a noncompliant O’Boyle out of the building.

The state attorney later charged O’Boyle with trespassing and disorderly conduct; a state judge dismissed the trespassing charge in August 2021 and a jury acquitted O’Boyle of disorderly conduct.

The O’Boyles and Ring sued the town for allegedly violating their First Amendment rights via the RICO suit, the bar complaints and Martin O’Boyle’s prosecution. The town argued that it had civil probable cause to file the RICO litigation and the bar complaints and that the state attorney had criminal probable cause to prosecute O’Boyle, so the trio could not establish a First Amendment retaliation claim.

The O’Boyles and Ring argued that they did not need to show a lack of probable cause, citing what they considered a similar case, Lozman v. City of Riviera Beach, in which the U.S. Supreme Court allowed a false arrest claim to proceed even though probable cause existed to arrest the plaintiff.

The district court at first denied giving a summary judgment to either side. After the parties agreed to a joint stipulation that the town had probable cause to file the bar complaints and to charge Martin O’Boyle with trespass and disorderly conduct, the district judge granted summary judgment to Gulf Stream. The O’Boyles and Ring appealed.

The 11th Circuit judges said under Lozman, along with other elements, where there is “little relation” between the First Amendment-protected expression and the allegedly retaliatory action, a plaintiff must show only that an official act would not have occurred “but-for” the protected expression.

In this case, however, the judges found more than just a “little relation.” Gulf Stream filed its RICO complaint and state-court counterclaims as a direct response to the hundreds of records requests and multiple lawsuits that were draining town resources and manpower, they said. The bar complaints were also closely related to the public records litigation, they said.

And, they wrote, “a layer of independent judgment” was added to the criminal case against Martin O’Boyle when the state attorney pressed charges and not the town police. Case law makes showing “an absence of probable cause” a necessary element of retaliatory prosecution, they said.

The joint stipulation “that there was probable cause to charge Martin O’Boyle with trespass and disorderly conduct was fatal to his retaliatory prosecution claim,” they ruled. Ú rights directly east of Turtle Beach.

Police Chief Richard Jones identified 141 signs on or near the beach, on roads and crossovers. Of those, perhaps 90 or so signs are on the beach, which is where commissioners are focusing their possible regulatory measures.

W hile a sign-placement law may not answer the broader question over public beach access in Ocean Ridge, commissioners hope new rules might help extinguish the lingering tensions that boiled over Feb. 6 when more than 100 angry residents packed Town Hall.

“It has gone too far with this hostility,’’ said Lacey Siegel, a Tropical Drive resident who said she considers the beach “sacred land” where she meditates, practices yoga and sunbathes. “The signs are breaking us apart.’’

Turtle Beach says Siegel and others are trespassing because the beach is the condo’s private property through deeded beachfront access rights. The condo says it erected “No Trespassing” signs to discourage unruly beachgoers who have littered, played loud music and even left underwear on the signs overnight as acts of defiance.

Those claims are disputed by residents living just north and south of Turtle Beach who have circulated a “Stop Sign Pollution” petition urging commissioners to ban signs below the dune/vegetation line.

They say the signs are purposely placed in a manner that misrepresents public access rights and are part of a campaign to intimidate anyone who doesn’t live at the condo.

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The sole purpose of those signs is ‘we are going to intimidate you rubes out there into not using your beach,’’’ said Christopher Currie, who has led the fight on behalf of Tropical Drive residents.

Siegel was one of three women who complained to the commission about harassment from condo residents aiming cameras at beachgoers.

“I have felt violated,’’ said Taylor Nixon of Tropical Drive. “I have been out there in my bathing suit relaxing, reading my book and I have been getting videotaped by some of the neighbors probably to use as evidence of being in their property. That is very stressful and a little aggressive.’’

To bolster their concerns, residents point out that “Keepoffmybeach” is the name of a Wi-Fi network — presumably belonging to a Turtle Beach resident — that is visible on a smartphone near the condo.

Ma rk Feinstein, president of the Turtle Beach of Ocean Ridge Condominium Association, disputed the comments by Tropical Drive residents as “misinformation” by “a very vocal minority” of residents. He criticized the Town Commission for “giving them a soap box” and an “air of credibility” by even considering a sign ordinance.

“It’s all a ruse,’’ he said. “What they are attempting to do is make all private beach public beach.’’

The signs, approved by the town, “are necessary because of the transients who would be steered to our beach by the Tropical gang,’’ he said.

Elliot Zank, who lives on Old Ocean Boulevard just south of Turtle Beach, said he often sees ride-hail drivers dropping off beachgoers at the end of Tropical Drive, even though a sign posted at that spot on Old Ocean Boulevard prohibits drop-offs.

“The signs are necessary … to prevent a major influx of nonresidents from crowding the beach,’’ said Zank, one of several speakers who agreed with Feinstein but were still outnumbered Feb. 6 by people against the signs.

“Removing the signs would violate owners’ First Amendment rights,’’ he said. County complained before

Residents living near Turtle Beach aren’t the only ones who have complained to the town about signs on the beach in Ocean Ridge.

In February 2022, a Palm Beach County government supervisor complained to thenTown Manager Tracey Stevens in a letter about town “signs indicating limits to public accessibility” north and south of Boynton Beach Oceanfront Park.

The signs “may incur significant financial liability for the town by restricting public access to publicly funded beach areas with active easement agreements in place. The signs should be removed immediately to prevent any further public perception that access is limited within the project area,’’ Andy Studt, a program supervisor for the county’s Department of Environmental Resources Management, said in the letter.

The signs referenced in the letter, which was included in the backup material to the commission’s Feb. 6 meeting, were installed in 2019 at the unanimous direction of the Town Commission to replace previously posted signs that had been damaged or removed. The signs near Oceanfront Park are no longer on the beach, although a town sign at the south end of Ocean Ridge near Briny Breezes still stands.

The ERM complaint was not discussed Feb. 6. Although there are dozens of “No Trespassing” signs at crossovers along Old Ocean Boulevard, it’s the signs on the beach that a majority of commissioners are targeting for rules on where they can be placed or whether they should all be removed.

“I believe in personal property rights and I also believe in the rights of the public,’’ said Commissioner Geoff Pugh, who said there are probably at least 40 signs that “need to be removed posthaste. It’s blight.’’

Pugh said he has no problem with beach signs against the dunes west of the wet and dry sand.

“My problem,’’ he said, “is once you get past vegetation line and you see a sign and have to walk around it, that’s when it becomes, why are we splitting the community up?’’

Pugh said, “We should create an ordinance for those signs and get them removed because the beach is for all of us.’’

Hurlburt, the mayor who lives in Turtle Beach, has tried to stay out of the public fight, restricting her comments on the topic at commission meetings.

Hurlburt and Commissioner Martin Wiescholek are running for reelection March 14, with Carolyn Cassidy the challenger. The top two vote-getters win three-year terms.

But on Feb. 6, Hurlburt took offense when Commissioner Steve Coz said that the offending signs were posted in the wet sand. Hurlburt said the signs are farther west, 10 feet from the dune in dry sand.

Coz, a political opponent of Hurlburt who has endorsed Cassidy, blamed Turtle Beach for creating the discord by posting signs in a manner that misleads members of the public into thinking they can’t walk north or south along any part of the beach east of the condo.

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To have one community cause this horrible rift in the haves and have-nots, among neighbors, among Ocean Ridge residents, it’s just sad,’’ said Coz, who at one point was interrupted by Feinstein shouting at him.

“I’ve never seen anything like this and to think one community can do this to this town really upsets me and makes me angry,’’ Coz said.

Wiescholek said he’s glad the town is finally taking a look at regulating beach signs.

“We had this on our agenda two years ago but we didn’t take action, unfortunately,” he said.

Town Attorney Christy Goddeau said she would study case law and present the commission with options for regulating signs. But she warned against an outright ban of signs, which she said would violate First Amendment rights. No date has been set for further commission discussion.

Pugh, noting how residents have complained about the signs at commission meetings since at least November, said it was long past time for the town to be proactive.

“I’m not going to sit here and not do something because the town might get sued,’’ he said. “Let’s create an ordinance and let’s see what happens down the road.’’