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

Continued from page unlocked the pedestrians-only gate alongside State Road A1A. An official ribbon-cutting will be scheduled later.

An asphalt path leads from A1A to a picnic area about halfway into the 13.2-acre site. From there, a mulch path goes down to a second picnic table and a sandy kayak landing area with the benches on the Intracoastal. Another asphalt path connects the picnic area to the existing paved road as an alternate route to the Intracoastal shore for bicyclists and for people with disabilities.

“We are excited to see it opened up and with all the foot traffic on A1A, I anticipate lots of people enjoying the park,” said Briann Harms, the district’s executive director.

Still to come are signs identifying the parcel, located south of Spanish River Park and north of the Gumbo Limbo Nature Center, as a park. The district will also install 300 feet of split-rail fence on the property west of A1A as repairs and additions, and 600 feet of new fencing east of A1A to block unwanted all-terrain vehicles from the ocean dunes.

Harms told commissioners at their Feb. 6 meeting that the $30,685 in fencing was needed.

“We are having some issues on the eastern portion of Ocean Strand with ATVs and motorbikes accessing the dune so we’d like to add split-rail fence on that side,” she said. “That obviously has to go through permitting and get surveyed and all that.”

Slow permitting by the city building department is partly why the park’s signs are not in the ground yet, Harms said. The city’s switch to a new electronic system meant some permit tasks in the transition needed to be input manually, she said.

Even before the park opened, Commissioner Craig Ehrnst told his colleagues it was time to give consideration to Phase 2 of Ocean Strand.

“We need to finish it out. It was a temporary thing that we did and we’ve got to visualize what it will be in the long run,” he said at the district’s Feb. 22 meeting.

“We did it with a let’sjust-open-it, let’s-just-put-apathway-down-there, and it turned into a massive, longterm project for a very limited usage,” he said. “There’s no parking; there’s no restrooms; there’s no shelter. There’s a big open area that could be useful as some kind of [playing] field. I think that’s got to be on the horizon.”

The district bought the land, which includes 3 acres on the beach east of A1A, and two additional parcels for $13.1 million starting in 1994. It banked the property without creating plans to develop it until Commissioner Erin Wright began a push three years ago to open the park.

Commissioners budgeted $75,000 to make Ocean Strand a pedestrian park in September 2020. That amount swelled to $600,000 to add an ADAcompliant path and fully remove exotic plants, then

Boca Raton

dropped to $300,000 when plans were scaled back after archaeologists there found eight pieces of pottery from 600 to 1,400 years old.

Instead of clearing Brazilian pepper trees and other nonnative plants from the entire western tract, crews last September focused on the central portion with extra care for the ancient trash heap.

Also freshening up the site will be new pavement for what was once called Ocean Strand Drive. JJ Morley Enterprises Inc., which is building a threeunit condominium along the Intracoastal just north of the park, paid the district $15,000 for a temporary easement to stage construction equipment and materials, park vehicles and to enter and leave the area. The easement expired Feb. 28. As part of the deal Morley promised to repave the road. Ú

City is evaluating first batch of mandatory inspections for condos

By Mary Hladky

The city has received engineering firm reports on the first group of buildings required to undergo safety inspections under an ordinance enacted two months after the 2021 collapse of a Surfside condominium.

The 14 buildings, all located near the ocean, had to comply by Feb. 1.

As of Feb. 24, 11 of the buildings had submitted reports. Another was expected to comply soon.

If the city does not receive reports from the remaining two in a timely manner, city officials will take action to require them to comply.

A city spokeswoman said the reports are being reviewed by city staff members. They have not released an assessment of the buildings’ conditions but may do so after the review is completed, she said.

The Coastal Star reviewed reports submitted for eight of the buildings. All cited needed repairs, such as for concrete restoration, corrosion of mechanical equipment, exposed or corroded rebar and rusted railings.

Because the reports are technical, a reporter could not independently assess the buildings’ safety.

But the reports did not seem to indicate severe problems, and several noted that the buildings were in generally good condition. One said that residents could remain in the buildings while repairs are made.

Reports reviewed by The Coastal Star were for Sabal Point Apartments, 700 S. Ocean Blvd.; Atrium Association, 800 E. Camino Real; Newth Gardens Condominium at 1001, 1040 and 1099 Banyan Road; Royal Colonial Apartments, 1015 Spanish River Road; Cloister Del Mar Condominium, 1180 S. Ocean Blvd.; Cloister Beach Towers condominium, 1200 S. Ocean Blvd.; Ocean Reef Towers condominium, 2066 N. Ocean Blvd.; and TGM Oceana apartments, 2519 North Ocean Blvd.

The city has identified 191 buildings that meet the criteria for inspection, although some include multiple buildings. Single-family homes and duplexes are exempt.

Every three months, the city is sending out notices to more owners that their buildings must be inspected. Reports from the next group of buildings are due May 1. Unless changes are made, the last group of reports is due Nov. 1, 2026.

The city’s ordinance divides the city into four zones, with buildings on the barrier island receiving the highest priority for review. Other zones run from the Intracoastal Waterway to Dixie Highway, Dixie Highway to west of Interstate 95, and farther west of I-95. Each zone was further divided into four groups based on building age in order to stagger inspection report due dates. Ú