The Brechner Report
Volume  23, Number 11
  November  1999

A monthly report:

Irina Dmitrieva, Editor
Jackie Thomas, Production Coordinator
Allyson Beutke, Production Assistant
Bill F. Chamberlin, Ph.D., Founding Director
Sandra F. Chance, J.D., Director

Table of Contents

ACCESS RECORDS

Insurance company loses its battle to keep notes secret 

Judge denies public access to recordings

Mayor cleared of a records law violation

Court says request has proper purpose

ACCESS MEETINGS

Butterworth issues two opinions on Open Meetings Law

Officials will not be probed on their vote

Inmates sue over meetings law violation

BROADCASTING

Group files FCC complaint over rap concert

COURTS

Judge: no gag order for a project opponent

FIRST AMENDMENT

Judge strikes down cap on campaign contributions

LIBEL

Ex-mayor claims paper defamed him

OBSCENITY

Voyeur Dorm contests a zoning decision

PRIVACY

Tribe says paper invaded its private records

TRADEMARKS

Miami company sues SFNN for infringement

THE BACKPAGE

Amended law requires colleges to disclose more crimes 

Insurance company loses its battle to keep notes secret  

 TALLAHASSEE -- An insurance company lost a courtroom battle to keep secret the detailed notes from a private investigator hired to follow a state Department of Insurance employee.

In 1995, Bankers Insurance Co. hired private investigator Peter Rayner to collect personal information on the Department's employee Kevin McCarty after it lost a $16-million contract with the Joint Underwriting Association. McCarty supervised the association that acts as the state insurance pool for homeowners who cannot get coverage on the open market.

Rayner provided Bankers with details of McCarty's property, financial and driving records, as well as information about his personal life. After Rayner pleaded guilty to a federal wiretap charge in 1997, Bankers asked a circuit court to block Florida Department of Law Enforcement from asking public Rayner’s records.

However, Judge N. Sanders Sauls, 2nd Judicial Circuit, ruled that the Public Records Law requires the release of documents once an investigation is closed. (9/3/99)

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Judge denies public access to recordings

 TAMPA – A circuit judge denied The Tampa Tribune’s request for access to secret recordings made in the house of a couple accused in the highly publicized disappearance of their 5-month-old daughter. Judge F. Dennis Alvarez, 13th Judicial Circuit, ruled that the recordings were exempt from disclosure because of an ongoing criminal investigation.

In September, a federal grand jury indicted Steve and Marlene Aisenberg on charges of conspiracy and making false reports in the still-unresolved disappearance of their daughter Sabrina. The indictment cited statements, allegedly made by the Aisenbergs, about a baby being dead and buried.

The Tampa Tribune argued that the public should know why a listening device was placed in the couple’s home.

The U.S. Attorney’s Office and local law enforcement authorities argued that the records should remain sealed. (9/28/99)

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Mayor cleared of a records law violation

 ANNA MARIA – Judge Doug Henderson, 12th Judicial Circuit, dismissed one of two non-criminal Public Records Law violation charges against Anna Maria mayor Chuck Shumard.

On April 26, Anna Maria resident James Conoly requested to inspect applications for a vacant city clerk position. (Brechner Report, August 1999) He was told that the applications were unavailable because they were either locked in the mayor’s desk or in the mayor’s possession. The next day, Conoly received the requested documents during an evening city commission meeting. Judge Henderson held that Shumard turned over the records to Conoly within a reasonable time.

The Islander Bystander also sued Shumard after the paper had to wait nine days for the requested records and was charged $20 in staff time for their preparation. On April 15, a circuit judge ordered Shumard to release the applications, and the mayor complied. (9/10/99)  

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Court says request has proper purpose

GAINESVILLE – An appellate court held that a trial court erred in denying a doctor’s request for access to records pertaining to the sale of Alachua General Hospital to Shands Teaching Hospital.

Allen Y. Delaney, a former member of Santa Fe HealthCare Inc., practiced at the hospital for 34 years. Delaney said he was concerned that Shands would not adequately provide for indigent care.

A circuit court held that Delaney did not have a proper purpose for requesting the records. Under state law, records of certain corporations may be inspected by corporations’ members “for any proper purpose.” The appellate court reversed, saying Delaney’s request aimed at ensuring that the hospital facilities are used for offering medical care to the citizens of Alachua County and that funds from the sale of the hospital are used for the maintenance of health care to the local indigent population. (Decision on File, Delaney v. Santa Fe HealthCare, Inc., No. 98-4146, Court of Appeal of Florida, First District, Sept. 9, 1999)  

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Butterworth issues two opinions on Open Meetings Law

TALLAHASSEE – Some architectural review committees of private homeowners associations are subject to the state access laws, according to a recently released Florida Attorney General’s opinion.

When the county government, by ordinance, has authorized architectural review committees to review and approve applications for county building permits, those committees have to give notice and open their meetings to the public at large, wrote Robert Butterworth.

The Attorney General’s Office also issued an opinion on whether the Open Meetings Law applies to a meeting between a school board member and a member of an advisory committee appointed by the school board to study and make recommendations on changing the district boundaries.

No violation would occur if neither individual has been delegated any decision-making authority or is acting as a liaison between members of respective bodies, states the opinion. In addition, no prior notice is required when one school board member attends a meeting of a redistricting advisory committee, Butterworth wrote. (N 99-53, Sept. 1; N 99-55, Sept. 17, 1999)

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Officials will not be probed on their vote

NAPLES – Judge Ted Brousseau, 20th Judicial Circuit, ruled that two Collier County commissioners do not have to answer questions about whether they violated the Open Meetings Law in voting to remove the guardhouse at the Lely Barefoot Beach development.

County commissioners filed a suit to have a guardhouse removed, claiming the gate intimidates people who want to get to the Barefoot Beach Preserve. However, in November 1998, commissioners approved a settlement under which the guardhouse gates remain open during the day and closed at night.

Recently, commissioners Ted Constantine, Jim Carter and Pam Mac’Kie voted to throw out the settlement and continue the lawsuit. The Barefoot residents countersued to overturn this decision, claiming that commissioners Constantine and Carter violated the law by prearranging how they were going to vote on the settlement issue. (8/17/99)

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Inmates sue over meetings law violation

BROOKSVILLE – Four inmates at the Hernando County Jail sued jail administrators for allegedly violating the Open Meetings Law by preventing them from attending the Inmate Welfare Committee meetings. In a class action suit, the inmates also claim that state administrators violated their “constitutional right of access to the courts” by denying them access to a law library.

Although the state requires county jails to provide inmates access to books of law or a reasonable alternative, the corporation that manages the Hernando jail has never had a full service law library for inmate use.  

Instead, the company hired a private attorney to assist inmates with legal questions outside of the counsel of their private criminal attorneys.  The four plaintiffs argue that the part-time service of a private attorney fails to meet the needs of the 300 inmates housed at the jail. (9/23/99)

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Group files FCC complaint over rap concert

TAMPA – A member of the Florida Family Association filed a formal complaint with the Federal Communications Commission asking it to suspend the operating license of a Tampa Bay area radio station for broadcasting a rap concert.

David Caton claims that WLLD delivered “the worst litany of profanity and obscenity ever in Florida” when it aired a rap concert from the Ice Palace on Sept. 11. He says some lyrics included references to drugs, alcohol, violence and sex, and contained language commonly considered racist or sexist. (9/25/99)

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Judge: no gag order for a project opponent

VENICE – A circuit judge declined to issue a gag order on an outspoken critic of a local retirement community project, saying possible financial harm to the corporation didn’t justify violation of the critic’s free speech rights.

Judge Harry M. Rapkin, 12th Judicial Circuit, refused to silence Bill Martin, a former CEO of two nonprofit corporations behind the $150-million Quaker-sponsored retirement community project in South Venice. The corporations argued that Martin damaged sales at the development by contacting media with damaging and inaccurate statements about the project.

Rapkin said he would consider restricting Martin’s speech only if the corporations can show that it threatens the health and safety of community members. (9/2/99)

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Judge strikes down cap on campaign contributions

SARASOTA – A circuit judge ruled that Sarasota County’s $40,000 cap on campaign contributions, added to the county charter in 1990, was unconstitutional and unenforceable.

Sarasota resident Ronald Ciaravella filed a suit claiming that the county’s spending limits violated voters’ right to free speech.

Judge Bob McDonald, 12th Judicial Circuit, upheld the county’s $200 limit on individual contributions but invalidated the $40,000 cap as unconstitutional. He also found that the county’s $2,000 limit for candidates seeking unpaid offices was unconstitutional, as was the county’s cap on contributions to “political committees.”

The controversy began when Commissioner David Mills exceeded the cap during the 1998 campaign. He raised $40,000 twice – for the primary election and again for the general election, in which he won another term. (9/17/99)

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Voyeur Dorm contests a zoning decision

TAMPA – Voyeur Dorm, a home-based company that broadcasts via the Internet the daily lives of five young women, filed a suit in a federal court over Tampa’s decision to regulate it as an adult-use business. The suit challenges the City Council’s decision to apply the city’s zoning ordinance prohibiting adult businesses in residential neighborhoods.

For $34 a month, Internet users can watch women living in the house as they sleep, shower, undress and engage in other activities recorded by dozens of cameras, 24 hours a day, seven days a week. Because the Voyeur Dorm’s web site features women in various stages of undress, the city council members ruled it a sexually oriented business and ordered it to move out of the residential neighborhood.

The company claims that the city’s ruling violates its constitutional rights to free speech and privacy. According to the company, Voyeur Dorm is never visited by paying customers and has no impact on the surrounding neighborhood. (9/25/99)

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Tribe says paper invaded its private records

FORT LAUDERDALE – The Seminole Tribe filed a suit in circuit court accusing the St. Petersburg Times of invading the tribe’s private records in the process of gathering information for its 1997 investigative series, “Seminole Gambling: A Trail of Millions.” 

The lawsuit alleges that reporters violated state laws by urging some of the Tribe’s employees to mail confidential documents to the paper. The Tribe seeks at least $15,000 in damages and a court order prohibiting the paper from information gathering “in tortious violation of the rights and liberties of the Seminole Tribe.” (9/10/99)

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Miami company sues SFNN for infringement

MIAMI – Hometown Newspaper Inc., owner of 12 publications in Dade County, asked a circuit court to enjoin the South Florida News Network Inc. (SFNN) from distributing a publication in its market under the name Community News. The company claimed unfair competition and trademark infringement.

Hometown Newspaper, Inc., is a family-owned business that has been publishing newspapers known as the Community Newspapers and Community News for 30 years in eastern Dade County. In August, SFNN, a subsidiary of the Chicago Tribune Co., launched a twice-weekly Community News tabloid in areas served by Hometown Newspapers. The complaint alleges that SFNN’s use of the Community News name led to confusion on the part of readers and advertisers. (9/3/99)

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Ex-mayor claims paper defamed him

MIAMI – Miami’s ex-mayor Xavier Suarez filed a libel suit in a circuit court claiming The Miami Herald defamed him in a series of articles covering his election in November 1997.

The Herald won a Pulitzer Prize for exposing voter fraud in the 1997 municipal election. The scandal led to Suarez’s ouster as mayor and the re-election of Joe Carollo to the mayor’s office in March 1998.

The ex-mayor claimed that the paper characterized him as “loony,” “deranged,” crazy,” and “paranoid” without any foundation. Suarez, a lawyer, said The Herald caused him to lose standing in Miami’s legal community.  He seeks punitive damages of more than $25 million. (9/25/99)  

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BACKPAGE: Amended law requires colleges to disclose more crimes

By S. Daniel Carter

Recent revelations that the University of Florida had excluded crimes known to some campus officials from its annual campus crime reports highlight a national problem. The average person does not know what’s going on in terms of crime on this country’s college campuses. Although against the law, many schools omit from their reports crimes known only to campus administrators or counselors.

Howard and Connie Clery, who co-founded Security On Campus, Inc., had pushed for the 1990 Campus Security Act after their daughter Jeanne was murdered at Pennsylvania’s Lehigh University in 1986 so that other students could make informed decisions and avoid victimization.

Although schools have been required to report crimes known to campus officials and not just police since 1994, UF didn’t begin including them until this year. This year, UF revised its reports to comply with additional requirements added to the Campus Security Act by recent amendments.  The newly revealed numbers make it clear that disclosing crimes known only to the campus police paints a woefully incomplete picture of campus crime. 

For example, the 1996 and 1997 statistics report only eight “forcible sex offenses” on UF’s campus in those years. But, the newly released information indicates that, in fact, there were at least 30. An additional 13 aggravated assaults were revealed for those same years, raising the total to 53.

Under the Act, schools are required to provide three years worth of campus crime statistics and current security policies to students and staff. The law applies to both public and private institutions of higher education which participate in any federal student aid programs.

However, many colleges continued to evade reporting and exploit any loophole they could to underreport.  In response, Congress has recently amended the law. The newly renamed “Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act” closes many loopholes, expands “hate crime” reporting, and requires schools to keep a public crime log. Schools also face a $25,000 fine for serious violations and for the first time, the DOE will collect statistics from all schools for a national report.

There is also a controversial provision, included at the request of many counselors, which prohibits the disclosure of “privileged” information. The counselors said they were obligated to inform their patients that this information might get out and that this would deter students from seeking out proper psychological care.

Discussion of this point took up much of the negotiated rulemaking process earlier this year in which higher education officials worked with the DOE and representatives of other interest groups to draft proposed regulations to implement the 1998 amendments to the campus crime reporting law. In the end, a compromise was struck. Only licensed psychological counselors or pastoral counselors would be exempt from any reporting requirements. Additionally, schools have to disclose whether or not they have an anonymous reporting program and counselors can, at their discretion, refer patients to this program.

The DOE is expected to issue the regulations this month to take effect next July. Separate regulations, based on an amendment sponsored by Congressman Mark Foley (R-FL), that will permit greater disclosure of “campus court” or student disciplinary information are also expected shortly.

Despite this progress, the fight for accurate campus safety information isn’t over by a long shot.  A bill, based on Congressman Foley’s amendment, died in the Florida Senate earlier this year. The bill would have amended a “conflicting” state law. Similar battles are being fought in legislatures and courts across the country. We all must continue to be vigilant, because awareness truly is the key to prevention of campus crime.

S. Daniel Carter is the vice president of the national non-profit organization Security On Campus, Inc.  SOC can be contacted at 1-888-251-7959 or at <http://campussafety.org>.

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