Legal Update

From the Legal Hotline (877-NEWS-LAW)

Sunshine law violations, closed pre-trial hearings and more in today’s Legal Hotline recap.

Q. I am writing a story about why the FDLE decided not to investigate board of trustees members of a local university about alleged sunshine law violations. FDLE’s preliminary report found that the officials only discussed “drafting a strategic plan” for the next meeting and that, as a result, no “official act” or “formal action” took place. Accordingly, the report concluded there was no evidence warranting the initiation of a criminal investigation. Any thoughts on the report’s conclusion?

A. The report says that no “official act” or “formal action” took place at the meeting, as required for a violation of the sunshine law (286.011(1)). These terms are not defined, although they should be liberally construed. Acts that are not “official” would be merely ministerial acts such as approval of minutes or ceremonial proclamations. FDLE said that the officials only “discussed drafting a strategic plan,” which was later presented at the next regular meeting, and this was not an “official act.” However, if the group met to include and exclude certain options to come to agreement on a final draft to submit to the full board, then it seems this was in fact “official action.” Further, even if done in an informal setting, this would not have made it less “official.” The bottom line is that without further facts it is difficult to determine if the report’s conclusion is legally correct.

I would also note that the report cites section 286.011(3)(b), F.S., which requires a board member to “knowingly” violate the provisions of the sunshine law in order for a misdemeanor to occur. Thus, if FDLE had determined an official act occurred, the next step would be whether such knowledge existed to constitute a criminal infraction. There is not much guidance on what constitutes “knowledge” although this AG opinion offers some clues. It says that a criminal violation “requires a charge and proof of scienter or guilty knowledge.” But this is academic as the report found no violation occurred.

Q. A customer wants to run an ad about his 10-year old son entitled “Sean needs your help” asking for donations to help pay for the boy’s medical expenses for a rare childhood disease, and includes other health information. Payment for the fundraiser is requested via “bank transfer” or Paypal. I don’t know of a way to verify the credibility of this, and it’s making me hesitant to approve it. Would you advise to run it, or hold off?

A. I think your instincts are correct for a couple of reasons. First, as in most states, you can be sued in Florida for publishing private facts about another person, even if those facts are true. The term “private facts” refers to information about someone’s personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. The rather detailed health information about the child in the ad may fall within this definition. Of course, the father can consent on behalf of his child to such publication, and such consent will be a defense. However, even if there is such “consent,” other questions could arise from the other parent or even regarding the ethics of the father consenting for the minor.

But there is a more pragmatic reason why this is a questionable ad. Although these kinds of solicitations for a named individual are exempt from the usual charitable solicitation registration requirements, other requirements still apply. These relate to trust account and disbursement requirements (section 496.413(1)), the violation of which is a felony. I did not see any reference to the trust account or related issues in the ad or in the website.

For the above reasons, I would advise against running this ad.

Q. The Florida Commission on Ethics is refusing to provide a copy of its preliminary investigation of a local county official indicating that it is confidential, at least for the time being. What is the law in this regard?

A. The complaint and records relating to the preliminary investigation conducted by the Commission are confidential and exempt until the complaint is dismissed as legally insufficient, the alleged violator requests in writing that the records be made public, or until the Commission determines whether probable cause exists to believe that a violation has occurred. Section 112.324(2)(a) and (e), F.S.

However, keep in mind that if the same issue and individual is the subject of a related investigation—say a police investigation–then the ethics commission proceeding cannot be used to keep the police report secret once that investigation concludes. AGO 96-05.

Q. The judge in a local case in South Florida has barred the press from a pre-trial release hearing concerning a high profile case involving several murder defendants. What is the law in general regarding such closure?

A. Barring the press and public and holding secret pre-trial hearings is a drastic measure under Florida law and hardly ever done, especially in high profile criminal trials like this one. If a hearing is in fact closed, it must be done in the narrowest way possible. Here, however, the trial court’s ruling seems overly broad because it closes the entire pre-trial hearing although I believe the defendants only wanted closure where previously sealed materials were to be discussed. Also, it seems a stretch to close the hearing to allow for seating of an impartial jury in light of the fact that this particularly large county and where the trial has not been scheduled yet. I would think there are less onerous ways to deal with this issue including voir dire in selecting of the jury pool. There is a large amount of case law and analysis on this subject if needed.

Q. You previously reported on the new Florida medical marijuana law and advised that generally treatment centers or stores must obtain approval by DOH before running on-line ads. However, what about physician or physician groups that issue medical marijuana certifications? Can they advertise?

A. I do not see any specific prohibition on such advertising at this time. The only current requirement is that the physician not engage in “false, deceptive, or misleading” advertising.
However, keep an eye out for changes, in particular in any additional DOH rules that are due out by October 3.