The Brechner Report
Volume 20, Number 6
June 1996

A monthly report of Florida mass media law published by The Brechner Center for Freedom of Information in College of Journalism and Communications at the University of Florida. It is published 12 times a year under the auspices of the University of Florida Foundation and is a joint effort of The Brechner Center for Freedom of Information, the University of Florida College of Journalism & Communications, the Florida Press Association, the Florida Association of Broadcasters, the Florida Society of Newspaper Editors and the Joseph L. Brechner Endowment.

• R. Michael Hoefges, J.D., Editor
• Eric Fritz, Production Coordinator
• Michelle Bernstein, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Commissioner to pay meeting fine
Town Commission action questioned

ACCESS RECORDS
DCA seals redacted student conduct hearing orders
Hospital concedes public records suit
Edited tape subject of court sanctions
Court compels access to surveillance tape
City to charge for time on records requests

ADVERTISING
AG advises city on publication of legal notices
County enacts sign laws

COURTS
Trial not prejudiced by publicity or cameras
Judge opens commissioner's divorce proceedings

FIRST AMENDMENT
County settles suit by reporter banned form press conference
Court may not sanction lawyer who cursed
High court lets stand county anti-nudity law
Panel decides to keep book in school libraries

LIBEL
Court rules in favor of Miami TV station

THE BACK PAGE
Decision revives protection for opinion in Florida

Commissioner to pay meeting fine

MIAMI - Dade Metro Commission Chairman Arthur Teele Jr. agreed not to contest a civil Open Meetings Law charge and will pay a $250 fine.

The State Attorney's Office alleged that Teele met privately in 1994 with Commissioner Bruce Kaplan during the selection process for manager of Dade County.

Kaplan paid a fine last year to settle a similar Open Meetings Law charge that was filed against him. (3/30/96)

Town Commission action questioned

BELLEAIR - State Attorney Bernie McCabe has assigned an investigator to look into allegations that three Belleair Town Commissioners may have violated the Open Meetings Law by conspiring to fire 10-year Town Attorney Joel Tew.

Tew was fired by the commission in April by a 3-2 vote with Commissioners Sam Casella, Connie Mudano and Don Sprague voting to fire Tew. In a letter to Casella before the vote, Tew implied that Casella had planned Tew's firing privately with two other commissioners. (4/4/96-5/1/96)

DCA seals redacted student conduct hearing orders

TALLAHASSEE - The 1st District Court of Appeal held that final orders entered in student conduct code proceedings at Florida State University were confidential and could not be released without written consent from the students named in the orders, even with all identifying information redacted from the records.

The appellate court cited Florida Statute section 228.093, which provides students with a right of privacy regarding their "educational records."

The court stated that while the student privacy provisions would permit students, along with their parents or guardians, to see their own records, the provisions would not permit the release of redacted records to others not specified in the language of the statute.

John Hatton, an FSU student, requested the records in an administrative action he filed to challenge the validity of an FSU disciplinary rule. A hearing officer ordered FSU to produce the records, but with all identifying information redacted. FSU objected and appealed directly to the 1st District Court of Appeal, which held that the hearing officer had abused his discretion. (Decisions on File, F.S.U. v. Hatton, 21 Fla. L. W. D950 (April 16, 1996))

Hospital concedes public records suit

TAMPA - To resolve a public records action filed by the St. Petersburg Times, the Tampa General Hospital stipulated in court documents that it illegally withheld public records concerning the search for a new president of the public hospital.

TGH also agreed to pay $12,100 to the newspaper for costs and attorneys' fees. A Tampa law firm representing the hospital admitted that it gave TGH bad advice during the search and has agreed to pay the amount.

In January, TGH refused a Times request for copies of records identifying candidates for the top spot at TGH. The Times then sued TGH and French & French, a Texas-based consulting firm hired by TGH to handle the search. After court hearings in February and March, TGH and French & French produced some of the requested documents. Fearing that the Open Meetings Law had been violated, the TGH board voted to abort the search and start over. (Brechner Report, May 1996)

In the stipulation, TGH agreed to conduct the new search in public and not to involve French & French. (4/27/96) (Decisions on File, Times Publishing Co. v. Hillsborough County Hospital Authority, Case No. 96-1332 (April 1996))

Edited tape subject of court sanctions

TALLAHASSEE - The 1st District Court of Appeal upheld sanctions against the Columbia County Sheriff 's Department based on findings that one or more department employees altered a videotape produced in a civil lawsuit.

The ruling came in a personal injury lawsuit filed by Runette J. Bass in which she claimed that Columbia County Deputy Sheriff Randy Dowling was negligent in pursuing a Lincoln automobile that ran into the car Bass was driving.

Dowling stated in a police report and testified in court proceedings that he began the chase after the Lincoln almost hit his patrol car. A recorder in Dowling's car taped the incident.

In the suit, the sheriff's office produced a copy of the tape with a portion that contradicted Dowling's version missing.

The trial court found that the tape had been intentionally altered and, as sanctions, entered a judgment against the sheriff's department on all issues of liability. (Decisions on File, Tramel v. Bass, 21 Fla. L. W. D935 (April 19, 1996))

Court compels access to surveillance tape

FT. MYERS - Twentieth Judicial Circuit Court Judge R. Wallace Pack ordered State Attorney Joseph P. D'Alessandro to provide the Ft. Myers News-Press with access to portions of a surveillance audiotape recording of a Ft. Myers city council member.

D'Alessandro's office claimed that the tape was exempt from disclosure under Florida Statute section 119.07(3)(b), which allows law enforcement agencies to withhold active criminal investigative information. The council member was arrested on charges of soliciting undue compensation.

Judge Pack found that since D'Alessandro's office had already released part of the tape to the council member's attorney, those portions were no longer exempt from public disclosure. (Decisions on File, News-Press Publishing Co. v. D'Alessandro, Case No. 96-2743-CA-RWP (April 24, 1996))

City to charge for time on records requests

EUSTIS - The Eustis City Commission voted 4-1 to impose a service charge on public records requests that require city personnel to spend more than 30 minutes compiling the requested information.

For those requests, the commission authorized a reasonable charge for the cost of the time that it takes for city employees to complete lengthy requests.

Commissioner Evelyn H. Smith voted against the resolution and called it arbitrary. She was concerned about how the amount of a "reasonable" charge would be determined for the requests. (4/19/96)

AG advises city on publication of legal notices

TALLAHASSEE - Attorney General Bob Butterworth advised that concurrent publication of a city's legal advertisements in two newspapers, neither of which would meet the statutory criteria of a record newspaper, would not constitute sufficient legal notice.

Under Florida Statute section 50.011, the criteria of a newspaper qualified to publish legal advertisements include requirements that the newspaper be for sale to the general public, qualified as second-class postal material, and circulated generally in the area affected by the notice.

The City of Deerfield Beach asked whether it could publish its legal notices in a city newspaper that was free but had no second-class mailing permit and a neighboring city's newspaper that had a second-class mailing permit but was not widely circulated in Deerfield Beach. (May 1996)

County enacts sign laws

PANAMA CITY - Bay County passed ordinances limiting the size and placement of signs. The ordinances ban 22 types of signs and prohibit signs within 15 feet of streets unless an exemption applies. The ordinances only permit off-premises signs on property zoned for commercial or industrial use. (3/27/96)

Trial not prejudiced by publicity or cameras

TALLAHASSEE - The Florida Supreme Court refused to throw out the first degree murder convictions of two brothers who claimed that their trial had been prejudiced by pretrial media coverage and a camera in court.

Jeffery and Anthony Farina were tried together and convicted of the 1992 murder of a 17-year-old girl in Daytona, and they appealed.

Jeffery Farina argued that his trial had been prejudiced by the presence of a television camera. The court disagreed, finding no evidence of prejudice in the record. Although one potential juror had stated that the presence of the camera would have made it difficult for her to be unbiased, she did not serve on the jury.

Anthony Farina argued that pretrial publicity about the case, including news accounts of the brothers' confessions, had prejudiced his trial. The court found that although jurors admitted having seen news accounts, they all agreed to base their verdict on the evidence presented at trial. (Decisions on File, Jeffery Farina v. Florida, 21 Fla. L. W. S173 (April 18, 1996); Anthony Farina v. Florida, 21 Fla. L. W. S176 (April 18, 1996))

Judge opens commissioner's divorce proceedings

OCALA - At the request of the St. Petersburg Times, 5th Judicial Circuit Judge Thomas Sawaya opened the divorce proceedings of Hernando County Commissioner John Richardson and his wife, Janet, and unsealed the court file.

The judge also rescinded an earlier order that prohibited Times reporter Lisa Buie from publishing information that she learned while attending a March 11 hearing in the case. (Brechner Report, May 1996)

Buie was ejected from the hearing after attending it for an hour when the judge discovered that she was a reporter. Buie had been directed into the hearing by the judge's receptionist and was not aware that the hearing was closed. Initially, the judge had mistaken Buie for a clerk.

The court's order opened the court file for the first time since the action was filed in July. (4/4/96) (Decisions on File, In re: the marriage of: John E. Richardson and Janet W. Richardson, Case No. 95-1190-CA-01 (April 3, 1996))

County settles suit by reporter banned from press conference

GAINESVILLE - The Alachua County Commission agreed to open county press conferences to the public and the media in order to settle a lawsuit filed by a reporter who was barred from a press conference.

Friends of Alachua County newspaper reporter Mike Garson was banned from a January press conference conducted by Alachua County jail administrators. The press conference was held to discuss a grand jury report regarding jail operations.

Garson initially filed a complaint with the State Attorney's Office and claimed that the press conference violated the Open Meetings Law. However, the Attorney General's Office advised the State Attorney's Office that the Open Meetings Law did not apply to press conferences conducted by commission staff, such as jail administrators. The State Attorney's Office declined to file any charges in the matter.

Garson then filed a civil lawsuit and alleged that banning him from the press conference had violated his constitutional rights under the First Amendment.

To conclude the suit, the county agreed to prepare a written policy opening county press conferences and also agreed to pay Garson $500. (1/8/96, 1/31/96, 4/5/96)

Court may not sanction lawyer who cursed

TAMPA - The 2nd District Court of Appeal threw out a criminal contempt judgment against attorney Phillip R. Wasserman, who had been found to have uttered vulgar comments to a judicial assistant over the telephone. The judgment would have required Wasserman to serve up to 30 days in jail.

The appellate court wrote in the opinion that the First Amendment prohibited punishment of out-of-court statements with criminal contempt sanctions unless the statements posed a "clear and present danger to the orderly administration of justice." The court held that Wasserman's statements did not rise to that level.

Judicial Assistant Cynthia Decker told her employer, 6th Judicial Circuit Court Judge John Lenderman, that Wasserman had called her a "mother ------" and called the judge a "mother ------- son of a b ----." Although Decker was upset and went home after the incident, Judge Lenderman went on to complete his calendar for the day. (Decisions on File, Wasserman v. Florida, 21 Fla. L. W. D902 (April 12, 1996))

High court lets stand county anti-nudity law

WASHINGTON - Without comment, the U.S. Supreme Court let stand a lower court ruling upholding the constitutionality of St. Johns County's anti-nudity ordinance.

The 1992 ordinance prohibits nudity in public places, including business and commercial establishments, such as restaurants and bars, and provides criminal penalties for violations. The ordinance does not ban "incidental" nudity in "bona fide" live performances.

Similar anti-nudity provisions have been passed in Florida in Brevard County, Leon County, Gainesville, Tallahassee and Micanopy. (Brechner Report, April 1996) (4/22/96-4/23/96)

Panel decides to keep book in school libraries

FORT WALTON BEACH - A panel decided to leave the book "Poetry of Black America" in the libraries of public middle and high schools in Okaloosa County.

The parent of a Lewis Middle School student complained that the book contained expletives and mentioned abortion.

The middle school refused to ban the book and a review panel that included Okaloosa County School Board member Bert Moore agreed with the decision.

The poems in the book deal with black history in America, including civil rights events of the 1950s and 1960s. (5/9/96)

Court rules in favor of Miami TV station

MIAMI - The 3rd District Court of Appeal upheld a trial court's ruling that Miami television station WSVN/Channel 7 and reporter Jon Steinberg could not be sued for allegedly defamatory statements of opinion contained in a news report. The court found that the facts supporting the statements of opinion had been fully set forth in the news broadcast.

Miami Child's World Inc., a land developer, sued Channel 7 and Steinberg for statements in a news report about the company's dealings with the Miami Beach City Commission. The news report used terms such as "rip off" and "land giveaway." (See related article, page 4) (Decisions on File, Miami Child's World Inc. v. Sunbeam Television Corp., Case No. 94-2773 (March 13, 1996))

Decision revives protection for opinion in Florida
by Dana J. McElroy with Gary M. Held

In the 1990 case of Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the U.S. Supreme Court left uncertain the extent to which statements of opinion would be protected in defamation suits. In a significant ruling for Florida journalists, a state appellate court recently held a television station's news broadcast was non-actionable opinion. The decision marked the first time since Milkovich that a Florida appellate court used an opinion doctrine to protect the media.

In Miami Child's World, Inc. v. Sunbeam Television Corp., 669 So.2d 336 (Fla. 3d DCA 1996), the Third District Court of Appeal affirmed a summary judgment in favor of Miami's WSVN/Channel 7 and reporter Jon Steinberg for a February 1991 news report concerning action by the Miami Beach City Commission. Child's World, a development company, sued Channel 7 for defamation after the City Commission refused to grant the company an extension for closing a land-sales contract with the city. Child's World alleged that Channel 7 defamed it by characterizing the underlying transaction as a "rip-off," an "inside deal" and a "land giveaway," and by reporting that Child's World's attorney and a company officer had "strong political ties" to some of the city commissioners.

The facts of the case were significant to the ruling. In 1982, Child's World leased a 146-acre parcel of land from the city of Miami Beach hoping to develop it as a family-oriented theme park. Child's World was unable to obtain the necessary approvals, and offered to buy the property. In January 1990, without competitive bidding, the Miami Beach City Commission approved the sale. Child's World, however, was not able to close the deal as scheduled and repeatedly requested the City Commission grant extensions of the closing date. Child's World was represented by a former mayor of Miami Beach and one of the company's officers was a commissioner's campaign treasurer.

City commissioners voted to deny the extension. Channel 7 then aired Steinberg's news report concerning the city's action. The broadcast included background information about the property, and interviews with the individual commissioners and local real estate experts. Child's World's lawsuit followed.

In granting the summary judgment, the Honorable Judge Gerald Wetherington ruled that Steinberg's use of the phrases "rip-off," "inside deal," "land giveaway" and "strong political ties" was reasonable based on the background facts disclosed in the news broadcast. The appellate court affirmed, relying on its earlier ruling in Stembridge v. Mintz, 652 So.2d 444 (Fla. 3d DCA 1995), a non-media case in which the court adopted pre-Milkovich opinion protections as a matter of state law.

Under the ruling in Child's World, statements in a news report may be protected as "pure opinion" when the statements are supported by facts that are fully set forth in the report or are otherwise known or available to the public. With this decision, the Third District Court of Appeal has reinforced the ability of journalists to publish news reports with appropriate characterizations of the facts they uncover, repairing to some extent the uncertainty of the post-Milkovich era. (See related article, page 1)

Dana J. McElroy and Gary M. Held are attorneys with Milledge Iden & Held, Miami, which represents WSVN/Channel 7.

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