From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. One of our local towns published a notice for a public hearing for a planning and zoning board meeting in the local free newspaper, which by current law, is not the legal organ for our area. They did not publish the ad for the public hearing in our newspaper – which is currently the legal organ for this area. When contacted by our ad rep to inquire whether they forgot to send it to her, the employee at town hall replied that they were not required to publish it with us because they did not need proof of publication for the meeting. Is this correct? I have never noticed them not publish a public hearing with us before. It’s always been my understanding they must publish with us but can also choose to pay to have it run in the free newspaper as well.

A. I think the town may be saying the notice is technically not a “legal notice” that must be published and “proofed” in a Chapter 50 qualified paper, like your paper.

Florida law does require cities and towns to provide newspaper publication (and proof of publication) for public hearings where a proposed ordinance changes “uses within a zoning category or changes to the actual zoning map designation of a parcel or parcels of land involving 10 contiguous acres” (see s. 166.041). However, it looks like the proposed town action here does not rise to a formal zoning use change or zoning map change involving a larger (10 acre or more) parcel. So, technically, I guess (unless I’m missing another provision) the town can do this so long as providing notice in this manner constitutes the basic “reasonable” notice required by the Sunshine Law for all government actions.

That said, noticing the hearing in this manner is not the best practice as far as public notice to citizens is concerned. Zoning notices very similar to these are usually placed in the legally approved newspaper where citizens are used to seeing them. Also, it is unclear as to the circulation and reach of the free newspaper and it likely does not meet the USPS requirements for a periodicals permit and the other requirements of Chapter 50. The best practice here is for the town to pay to run the ad in your paper and also run it in the free newspaper (if that paper is reaching a niche population affected by the notice.).

[Note—with the new public notice law in effect, free newspapers like these may qualify for legal notices but not until certain formal audit procedures and audience thresholds are met.]

Q. Good morning, I hope this finds you doing well. Quick question for you: We had a county commissioner over the weekend hit “reply all” on an email regarding a subject that will come up for discussion as well as a vote. While no one – awaiting records for it – responded to his faux pas, what advice would you give elected officials regarding communications with fellow board members? I would assume that since no one replied, this is not a violation of the Sunshine Law?

A. We asked Pamela Marsh, ED of the First Amendment Foundation, to weigh in on this. She indicates that if you confirm that no one responded to the email, there would be no Sunshine Violation.

The Sunshine Law requires meetings between two or more members of the same board or commission to take place at an open meeting. Commissioners cannot take action or engage in private discussions of commission business through email.

If there is no interaction between commissioners, the email correspondence would not violate the Sunshine Law. If the email does not result in the exchange of commissioners’ comments or responses the email exchange is not a meeting in violation of the Sunshine.
The Sunshine Law is meant to protect the public from closed door politics and frustrate all evasive measures. The Attorney General Office has stated that while it is not a direct violation of the Sunshine Law for commissioners to circulate a document with their position on a subject as long as the commissioners avoid debating the issue among themselves, the practice is strongly discouraged. Emails should not be used to circumvent the public’s right to access government meetings.

Q. Our sheriff’s office recently started to redact the call log for the previous day. The location of all incidents has been redacted. I have challenged this, and my response from the Sheriff via text this morning was: “We will disclose the information, but it will not be in a timely manner as it is now. The report you are getting now will be delayed a day or two after it is reviewed.” Please advise.

A. Section 119.001(3)(c) FS is very clear that law enforcement must disclose the time, date, location, and nature of a reported crime. If they are relying on Marsy’s Law to delete victim info. that would be consistent with similar problems around state. However, sheriffs have been generally more open and usually do not automatically redact. Regarding timeliness of the response, the sheriff’s office does have a “limited reasonable time” to redact exempt info. but this cannot be an automatic delay unrelated actual time the office needs.

Virginia Hamrick, attorney at FAF, also advises that the Sheriff must provide the specific exemption and state “with particularity the reasons for the conclusion that the record is exempt or confidential.” Fla. Stat. § 119.07(1)(f). She recommends pressing on why the office isn’t releasing the information.

She also wonders if the Sheriff will say it has anything to with Marsy’s Law. County policy states that prior to releasing any records, its central records office will determine if any victims have requested the protection and make redactions. But that has been in effect since 2019 – it wouldn’t account for this sudden change.

Q. Our fire chief, who was recently fired, has been running the department using his personal cell phone over the last year. Since he’s no longer employed by the city, they’ve indicated they can’t answer our request for telephone records. I believe I’ll need to sue for the records.

I was wondering if you could direct me to any cases you know of for public records that were in the possession of a government employee and not the government entity – or a case that might look similar so that I can go look at that docket? I’m sure this has had to have come up before.

A. The Sunshine Manual cites several cases for the proposition that the mere fact that an e-mail is sent from a private e-mail account using a personal computer is not the determining factor as to whether it is a public record. Rather, the determining factor is whether the e-mail was prepared or received in connection with official agency business. See Butler v. City of Hallandale Beach. For example, if a public employee sends a proposed agency budget to his or her supervisor for review, the report is a public record, regardless of whether the report was sent from the employee’s agency e-mail account using a government computer, or from his or her home computer using a personal e-mail account. Cf. AG0 16-16.

Another related issue is whether the employee is still acting on behalf of the city in light of his firing. For whatever reason this seems to be the case and I think to the extent that relationship still exists, the employee’s emails dealing with government business should be open.

Q. Do you have any advice on how to speed up the processing of medical marijuana ads?

A. Here is a FPA white paper that, hopefully, will help your staff speed up processing times making ad approval requests clearer, or at least help staff and advertisers better understand the law.

Q. We have a potential classified ad that someone wants to run regarding sales of several handguns and ammunition. I just want to check with you to confirm that running the ad does not leave us with any responsibility or liability regarding rules that have to be followed, etc. If there’s any gray area, we won’t run the classified. Just don’t know enough about the situation so I wanted to reach out.

A. I am not aware of any law that would prohibit you from running an ad for legal firearm, including handguns. [On the other hand, fully automatic rifles (such as automatic AK-47s) are illegal so I advise against running these types of ads.] That said, I am sure there’s always some very small chance a creative plaintiff’s lawyer might allege some aiding and abetting tort theory for damages against the publisher but it would be a stretch.

Beyond the legality of the ad, newspapers have varying internal policies regarding what they will run or not run. I know some newspapers will not run ads for handguns or have restrictive policy about individual sellers running ads like these-not the big box store or gun show ads-which they do run.

Q. I wanted to check with you on what would be needed in order to accept a juvenile’s opinion for print on the viewpoints page or on a page designed just for them. We have a bit of interest from our community for a place for the young people to voice their opinion on matters of local, national and even global interest. Would a parent’s permission be needed? While this is a much smaller urgency in the scope of things you deal with, I appreciate your opinion on this matter.

A.I don’t think a student leaves his or her First Amendment rights at the schoolhouse door.
On the other hand, parents of course have some control in “raising children.” We asked Jim McGuire in Tampa. To Jim, this isn’t really a First Amendment issue. The newspaper is not a government arm, so whether it chooses to print or not print something doesn’t implicate governmental censorship of speech. Jim thinks this is more of an issue of the paper acting in a way that it will feel comfortable defending against angry or upset parents. The paper could certainly create an opinion section for minors, but also require that a guardian give consent to the minor’s publication. That wouldn’t offend the First Amendment. If they want to do so without parental consent, they just need to be prepared to deal with angry parents.

The other issue of concern, however, is whether the minor writes something that his/her school takes issue with. Generally, even for off campus speech, schools are able to discipline students for speech that creates a substantial disruption of learning-related activities. Jim and my guess, however, is that the types of things students will write about won’t generally invoke these concerns (i.e., won’t involve bullying or harassment, threats to students or teachers, violations of school rules, etc.).