Filing # 51178784 E-Filed 01/13/2017 03:58:39 PM

IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT

IN AND FOR MIAMI DADE COUNTY, FLORIDA
GRANT STERN,

CIVIL DIVISION

Plaintiff,

CASE NO.

2016-026031-CA-01

v.
CITY OF MIAMI BEACH,
A political subdivision
of the State of Florida, and
PHILIP LEVINE,
Mayor, City of Miami Beach,
Defendant.
___________________________________/
REQUEST FOR ACCELERATED HEARING AND MOTION FOR ENTRY OF FINAL
JUDGMENT IN FAVOR OF PLAINTIFF GRANT STERN
GRANT STERN (Stern), by and through his undersigned counsel, pursuant to Fla. Stat.
119, hereby requests an immediate hearing and entry of final judgment against the City of Miami
Beach (City) and Mayor Philip Levine (Mayor) for violating the Public Records Act, and
grounds in support thereof states as follows:
INTRODUCTION
The City and Mayor have violated the Public Records Act. Currently, access to public
records is a fundamental right guaranteed through Article I, Section 24 of the Florida
Constitution and codified in Chapter 119, Florida Statutes. The Mayor, in his official capacity,
utilizes radio and social media platforms, such as Twitter and Facebook, to perform and
communicate official city business. Stern, a resident of Miami-Dade county, contends that those
records are public records; thus, Stern made several requests to inspect and/or copy those records
but was ultimately denied access. The Citys and Mayors categorical denial of Sterns requests,
absent any claimed exemptions, is a violation of the Public Records Act. Therefore, Stern is
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requesting an immediate hearing in this matter and entry of final judgment for the plaintiff.
BACKGROUND
1.

The Mayor is a 21st century mayor who employs various digital mediums

including social media to communicate official city business.

2.

The Mayors Twitter account identifies him as the mayor of Miami Beach. The

account name is Mayor Philip Levine and his Twitter handle is @MayorLevine. The selfdescription section on the account states:
Proudly serving as Mayor of Miami Beach. This page expresses the views and
opinions of Mayor Levine and not those of the City of MB. #MBMayor
#MiamiBeach.
3.

Similarly, the Mayor utilizes Facebook to communicate the official acts and

businesses of the City to his constituents. The Mayors Facebook account identifies him as a
governmental official and that his current office is the mayor of Miami Beach, Florida. The
account states that he is: Making Miami Beach the city that works...for its people.
4.

After a cursory review of the Mayors Twitter and Facebook pages, there is no

question that the Mayor utilizes social media to communicate the Citys official business. The
Mayors communications include posts such as the renaming of a city street in honor of
Muhammad Ali1 to informing residents of the Zika virus outbreak within the city.
5.

The Mayor has two other Facebook accounts from which he does not conduct

official business and do not identify him as a government official one being his personal
page and the other his political campaign page.
6.

Lastly, the Mayor hosts a weekly satellite radio program on SiriusXM entitled,

A day after the Levines Muhammad Alis post, the City of Miami Beach unanimously approved the renaming of
the street after Muhammad Ali. See http://bit.ly/1alimb and http://bit.ly/ali2mb and
http://www.local10.com/sports/miami-beach-commission-unanimously-votes-to-rename-street-after-muhammad-ali.
1

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The Mayor. As described in the shows pre-launch press release, The Mayor provides
listeners the insiders perspective on everyday government decision-making. The show
focuses on issues that directly involve the City such as lobbying the United States Congress for
Zika funding in his official role as mayor.
7.

On July 23, 2016, the Mayor posted a photograph on Twitter where he is seen

greeting Hillary Clinton and Tim Kaine, former presidential and vice-presidential candidates of
the United States of America. Stern posted a response to the Mayors post by sharing a recent
article he wrote for the Huffington Post entitled, Florida Senate Candidate Slams Miami Beach
for Fouling Biscayne Bay, Sunshine Law Failures. In addition to the article, Stern posted,
@MayorLevine hope that @HillaryClinton @timkaine advised you fix the #MiamiBeach water
pollution problem you caused. The Mayor subsequently blocked2 Stern on Twitter.
8.

Stern then proceeded to the Mayors Facebook page (which is self-categorized

as a government official and is a verified page with a blue checkmark indicating that the page is
authentic3) and requested a copy of his government official posts on Twitter for the last 30
days. The Mayor responded by deleting Sterns public records request. Stern then complained to
the Mayor about the deletion of the public records requests. The Mayor subsequently blocked
Stern from Facebook and deleted all comments made by Stern.4
9.

On July 25, 2016, Stern called the City and made a public records request for the

Blocking is a feature that helps the account holder control how he or she interacts with other users on social media
such as Twitter. This feature allows the account holder to restrict specific users from contacting the account holder,
seeing the account holders messages, and following the account holder. See
https://support.twitter.com/articles/117063. On Facebook, blocking prevents an unwanted person or entity from
seeing things the account holder post on his or her profile, starting conversations with the account holder or adding
account holder as a friend. The person blocked will not be able to be tagged in a posts, comments, or photos, invite
the account holder to events or groups, start a conversation with the account holder, and add the account holder as a
friend. See https://www.facebook.com/help/131930530214371
3
See Verified Page or Profile https://www.facebook.com/help/196050490547892
4
It should be noted that the Mayor did not delete Jeff Everharts comment containing an icon of a laughing child
and a kitten to the same comment.

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Mayors block list5 on his government official Facebook page. The City emailed Stern
acknowledging receipt of his request and assigned him public records request number 12089.
10.

Stern followed up by providing instructions to the City on how to obtain the block

list on Facebook. Specifically, Stern stated:

Id like a list or copy of all persons blocked by the Mayor of Miami Beachs
official Facebook account. In a personal account this list can be found at
https://www.facebook.com/settings?tab=blocking In a Facebook page account its
accessible from the below URL, there is a flip down box that says Banned
People
and
Pages:
https://www.facebook.com/mayorphiliplevine/settings/?tab=peopleand_other_pag
es.
11.

On July 27, 2016, in a letter from the city attorney for Miami Beach, Aleksander

Boksner, Stern was informed that the City is denying his public records request. Mr. Boksner
stated: Please be advised that the request for a copy of all persons blocked or banned from
Mayor Philip Levines Facebook page, is not a public record that was made or received in the
course of the official business of the City of Miami Beach.
12.

Undeterred by the Citys denial, Stern made a second public records request for

the Mayors block list on his government official Facebook page; specifically, Stern requested
an in-person inspection of the records. On behalf of the City, Mr. Boksner replied: Please be
advised that the City of Miami Beach is disinclined to acquiesce to the below request, and is
hereby asserting its legal position that was clearly set forth in the letter remitted directly to your
attention.
13.

Stern responded to the Citys second denial and made a third public records

request for the Mayors block list on his government official Facebook page. Days later, Stern
emailed the City and/or its representative seeking a response; no response was given.

A block list is the group of Facebook users the account holder has chosen to block. In the case of Levine the block
list is the group of individuals who are prohibited from commenting upon the official city business.

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14.

On September 23, 2016, Stern made a public records request to the City seeking

audio recordings from Mayor Levines SiriusXM show. Specifically, Stern requested:
[A]ll digital recordings related to The Mayor a radio program by Mayor Philip
Levine which broadcast on Sirius XM radio. Provide copies of all episodes and all
related audio material recorded by Mayor Philip Levine in conjunction with his
broadcast which have been released or not, that is all recorded material
whatsoever including outtakes, to include all raw recorded episodes, all segments
and any material related to the Mayor's appearances on Sirius XM for the entire
calendar year of 2016.
On September 26th, the City acknowledged Sterns request.
15.

On September 28, 2016, Stern also requested: Cop[ies] of [c]ontracts or [a]ll

[w]ritten [a]greements between Mayor Levine and SiriusXM radio and/or all independent
producers or associated studios for the show entitled, The Mayor. On the same day, this
request was acknowledged by the City. The city attorney for Miami Beach then sent a reply letter
to Stern denying his public records requests related to the Mayors SiriusXM show.6
LAW
16.

The Florida Constitution provides individuals with the right to inspect or copy

any public record made or received in connection with the official business of any public body,
officer, or employee of the state, or persons acting on their behalf, except with respect to records
exempted pursuant to this section or specifically made confidential by this Constitution. Art. I,
24(a), Fla. Const.
17.

Florida Statute 119.011(12) defines public record as all documents, papers,

letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or
other material, regardless of the physical form, characteristics, or means of transmission, made or
received pursuant to law or ordinance or in connection with the transaction of official business
by any agency. The Florida Supreme Court further defines record as any material prepared in
6 These requests were assigned the following public records request numbers: 12364, 12352 and 12354.

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connection with official agency business which is intended to perpetuate, communicate, or

formalize knowledge of some type. Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc.,
379 So.2d 633, 640 (Fla.1980).
18.

Section 119.07(1)(a) provides that every person who has custody of a public

record shall permit the record to be inspected and copied by any person desiring to do so. The
custodian must promptly acknowledge requests to inspect or copy and respond in good faith. The
custodian may designate another officer or employee of the agency to permit the inspection,
however, the identity of the designee must be disclosed to the person making the request. See
119.07, Fla. Stat.
19.

Section 119.07(1)(a), Florida Statutes proves every person who has custody of a

public record shall permit the record to be inspected and copied by any person desiring to do so.
(Emphasis added).
20.

If a public record is not made available for inspection or copying in accordance

with the provisions of the Public Records Act, the Legislature has provided for enforcement
through a civil action, with an immediate hearing that is given priority over other pending
court cases. 119.11(1), Fla. Stat. (2015). In other words, an accelerated hearing plays a critical
role in the enforcement of the Public Records Act, as is reflected in the title of section 119.11
"Accelerated hearing; immediate compliance. 119.11, Fla. Stat.
ANALYSIS
I.

Defendants Failed to Acknowledge and Produce the Mayors Twitter posts

21.

The Mayor failed to acknowledge Sterns public records request for his

government official Twitter posts for the last 30 days and unlawfully refused to produce those
records. First, we must determine whether the Mayors Twitter posts are public records subject

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to disclosure requirements. In Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379
So.2d 633, 640 (Fla.1980), the Court established a two-prong test as a guide for making that
determination. First, the record must be prepared in connection with an official agency business,
and second, the record must be intended to perpetuate, communicate and formalize knowledge
of some kind.
22.

In this instance, the Mayor is an agency or municipal officer for purposes of

Chapter 119 who openly identifies himself as a public figure on his Twitter page. The Mayors
account is named Mayor Philip Levine and states that he proudly serves as the mayor of Miami
Beach. Furthermore, the Mayors posts of the street naming and Zika virus are issues that
specifically affect the City. In State v. City of Clearwater, 863 So.2d 149, 154 (Fla.2003), the
Court encouraged a common sense approach in determining what constituted a public record and
ultimately found the nature of the record, not the physical location, to be the determining factor.
Here, the nature of the Mayors posts are particular to the City, are of great public importance
and constitute official city business.
23.

Furthermore, in this 21st century, the Mayor or any elected official is well aware

that communicating with the community at-large is most effective through social media. The
Mayors use of social media is a clear indication that he intended to communicate this
information to a wide audience. As such, the Mayors Twitter posts are public records subject
to disclosure requirements.
24.

Stern, recognizing the Mayors Twitter page to be subject to the Public Records

Act, made a public records request on the Mayors Facebook page for the Mayors Twitter
posts for the last 30 days. Sterns post was deleted by the Mayor without acknowledging the
request and without referring Stern to his designee as outlined in Section 119.07 Fla. Stat.

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Therefore, the defendants failed to acknowledge and produce the Mayors Twitter posts as
required by the Public Records Act and thus violated the Public Records Act.
II.

Defendants Unlawfully Refused to Produce the Facebook Page Block List

25.

The Defendants unlawfully refused to produce the Mayors block list on his

government official Facebook page. Stern made three separate requests for the Mayors
Facebook page block list and each was denied by the city attorney. The city attorney reasoned
that the Mayors Facebook page block list was not a public record that was made or received
in the course of official business of the City of Miami Beach. However, the Mayor publicly
professes to be a government official mayor of Miami Beach on the Facebook page and
communicates official city business using the same page. Similar to the Mayors Twitter page
and applying the Shevin test, the Mayors Facebook page is a public record; and to think
otherwise is to go against the common sense approach encouraged in Clearwater.
26.

Assuming there is a slight distinction in Sterns requests for the Mayors block list

on his government official Facebook page as opposed to general Facebook posts, it is Sterns
position that it is still a public record. The Shevin court noted that [i]nter-office memoranda and
intra-office memoranda communicating informationmerely prepared for filing, even though
not a part of an agency's later, formal public product, would nonetheless constitute public records
inasmuch as they supply the final evidence of knowledge obtained in connection with the
transaction of official business. Id., 379 So.2d at 640. The blocked list is akin to interoffice
memoranda merely created for filing or his eyes only. Nevertheless, the list was created in the
Mayors official government capacity and intended to formalize some type of knowledge a list
of people who were blocked from communicating with him concerning official city business.
27.

Historically, the public records law has been construed liberally in favor of the

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policy of an open government. Any doubt the court may have in the application of the law should
be resolved in favor of disclosing the documents. See National Collegiate Athletic Assn v.
Associated Press, 18 So.3d 1201, 1206 (Fla. 1st DCA 2009). To construe otherwise, would allow
the public officials to circumvent the requirements of the Florida Public Records Act by placing
documents concerning official city business on social media without having to produce the
public record. Accordingly, the Court should find that the defendants unlawfully refused to
produce the Mayors block list on his government official Facebook page to Stern as required
by the Public Records Act.
III.

Defendants Unlawfully Refused to Produce Audio Recordings and Agreements

Related to SiriusXM Show

28.

Defendants unlawfully refused to produce audio recordings and agreements

related to the Mayors show on SiriusXM. Sterns requests to the City for the audio recordings
and contracts related to The Mayor were also denied by the city attorney. Applying the twoprong test established in Shevin, The Mayor is a show that provides listeners the insiders
perspective on everyday government decision-making and directly focuses on issues that affect
the City, i.e. lobbying the U.S. Congress for funding to combat the Zika virus. The show is
broadcasted weekly on a satellite radio program that is available to a very broad audience and
hosted by the Mayor in his capacity as a government official. Levine records his broadcast and
later disseminates those recordings to the public. Thus, the Mayors show constitutes a public
record for purposes of Chapter 119, Florida Statutes.
29.

Sterns public records request also included cop[ies] of [c]ontracts or [a]ll

[w]ritten [a]greements between Mayor Levine and SiriusXM radio and/or all independent
producers or associated studios for the show entitled, The Mayor. It is still unclear why the

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city attorney denied Sterns request for the written agreements; however, if it is argued that the
Mayor does not have possession of the records, they would still be subject to disclosure. Given
the business acumen of the Mayor, it is safe to assume that he examined all of the contracts
related to his show on SiriusXM. At the very least, Levine signed and executed the contract,
which means he examined the contract. In National Collegiate Athletic Assn v. Associated
Press, the court explained that the term received in section 119.011(12) refers not only to a
situation in which a public agent takes physical delivery of a document, but also to one in which
a public agent examines a document 18 So.3d 1201, 1207 (Fla. 1st DCA 2009). The Mayors
examination of the contracts and their use in connection with official city business subjects them
to disclosure. Id. at 1208 (Fla. 1st DCA 2009) citing Times Publishing Co. v. City of St.
Petersburg, 558 So.2d 487 (Fla. 2d DCA 1990).
30.

As such, the defendants unlawfully refused to produce audio recordings and

agreements related to the Mayors show on SiriusXM.

WHEREFORE, Grant Stern, respectfully requests, for the foregoing reasons, that this
Court enter judgment against the City of Miami Beach and Mayor Philip Levine, and reserve
jurisdiction to assess the entitlement to attorneys fees and costs. Stern also requests the entry of
orders:
a. Setting an immediate hearing pursuant to section 119.11(1), Florida Statutes in
order to address Defendants ongoing refusal to comply with Chapter 119 and
Article I, section 24 of the Florida Constitution. Section 119.11(1), Florida
Statutes.

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b. Directing the Defendants to appear at such hearing or hearings pursuant to section

119.11(1), and to show cause why the records requested by Plaintiff should not be
ordered to be produced.
c. Directing the Defendants to produce the records requested by Plaintiff at such
hearing or hearings pursuant to section 119.11(1), Florida Statutes.
d. Directing the Defendants, by writ of mandamus or otherwise, to produce to
Plaintiff, all of the records requested.
e. Declaration that the records requested alleged in the most recent complaint are
public records pursuant to Florida law.
f. Awarding Plaintiff the costs and attorneys fees that he reasonably has incurred
in prosecuting this action initially, and in seeking the Courts intervention to
obtain records requested subsequent to the initial complaint, pursuant to section
119.12, Florida Statutes.
g. Awarding Plaintiff any other relief that is necessary or appropriate.
Certification
I certify that the following document hereof has been served on the Aleksandr Boksner,
1700 Convention Center Drive, 4th Floor, Miami Beach, Florida 33139 via email delivery at
aleksandrboksner@miamibeachfl.gov on January 13, 2017. Respectfully submitted on January
13, 2017 by:
s/Faudlin Pierre
Faudlin Pierre
Attorney for Plaintiff
18900 NE 1st Court
Miami, FL 33179
(305) 336-9193
FLA. BAR #56770

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