"Fifth Amendment Rick" Scott's Drug-testing Executive Order 11-58 Held To Violate Fourth Amendment

It's our money. Florida Governor Richard Scott fought all the way to the U.S. Court of Appeals in a losing effort to defend his Executive Order 11-58, which both trial and appellate courts have now found violates our Fourth Amendment. Scott's order would have inflicted routine, suspicionless drug tests on every single Florida state government employee under his power (77% of the total, or 85,000 people), whether or not they perform safety or law enforcement functions.


"Fifth Amendment Rick," Governor Scott, stated in inept defense of his Fourth Amendment violation, "Many Floridians are required to take drug tests in their workplace and it is only right for state workers paid with taxpayer funds to be required to do the same." "Fifth Amendment Rick" Scott reckons that because some nosy-parker private sector employers (like Morris Communications and the St. Augustine Record) insist on drug tests for all employees, that he should too. That's specious illogic, pandering to anti-libertarians.

If a state government employee's function is safety-related or in law enforcement, the government can already legally ask him or her to take a drug test. So what's the fuss about? Demagoguery and control.

Why waste money on such invasive, intrusive, overbearing, foolishness? Perhaps because drug tests can be abused to indicate false positives for ethical employee whistleblowers -- in one federal case, a drug testing company was convicted of arranging for such false positives, on demand, for employees of Superfund hazardous waste disposal sites.

Governor Scott told the U.S. Court of Appeals that "state employees have a diminished privacy interest," so Scott somehow supposes he has suzerainty to make them pee in a cup. How demeaning and demoralizing. What errant nonsense.

If Scott appeals to the Supreme Court, let it be on his own dime, not ours – he spent $78 million of his own money to get elected, buying the office with crazy bigoted TV ads, including one about a mosque in Manhattan.

Our State of Florida has been the source of a good many Supreme Court decisions, including Chambers v. Florida (1940), where four African-Americans were wrongfully convicted of murder, Justice Hugo Lafayette Black (former Alabama Senator and onetime Ku Klux Klan member) wrote for the Supreme Court: “We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws....The Constitution proscribes such lawless means irrespective of the end. And this argument flouts the basic principle that all people must stand on an equality before the bar of justice in every American court. Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement."

Under our Fourth Amendment, requiring drug tests for all state employees is unconstitutional. Don't take my word for it, read the 61-page May 30, 2013 Eleventh Circuit Court of Appeals decision in AFSCME v. Scott.

South Carolina Democratic Senator Ernest "Fritz" Hollings was once pestered by a Republican challenger who demanded Hollings take a drug test. "I'll take a drug test when he takes an IQ test," Senator Hollings said. The challenger never took an IQ test. I was reminded of that bon mot upon reading the Eleventh Circuit decision. Shall we ask Governor Scott to take an IQ test? He definitely flunks the laugh test.

What do you reckon?

Finally, Record Reports Willie Galimore Story Six Days Later!

Breaking a world record for torpor, the Record finally reported today the Jacksonville Jaguars' generous gift of free admission to the Willie Galimore pool -- six days after the pool opened and the decision was announced and after the Memorial Day weekend.   See post immediately below, and the UPDATE appended to it.
The tatterdemalion Record suffers from bad morale, slashed news room budgets, and reduced newspaper space for news (called "the news hole" in the journalism business).
The Record's page one, six column banner headline yesterday -- on a Jacksonville Jaguars NFL team player's alleged bar kerfuffle Sunday -- stands in stark and marked contrast to the tiny one column   headline on today's page one story about last Friday's re-opening of Lincolnville's Willie Galimore pool.
Let's see.
So far, the score is:
May 26  Jaguar Misdemeanor Charge in Alleged Bar Kerfuffle      6 column inch headline
May 24  Jaguar's Galimore Free Admission Pool Promise               1 column inch headline, six days later
What priorities these alleged news reporters have at the St. Augustine WRecKord.
Thus, the box score is  Jaguar Kerfuffle 6, Jaguars Caring 1. 
The Record would rather report wrecks and kerfuffles than actual news of improvements in our city, including a string of victories for Equality and Environmental Justice. 
The Record is notable for its dearth of coverage of the GLBT nondiscrimination provisions passed by the cities of St. Augustine (2012) and St. Augusine Beach (2013), Anastasia Mosquito Contrel (2009), and by St. Johns County Sheriff David Shoar.
The Record's new publisher should hold "Lessons Learned" meetings about the Record's insensitivity.
The Record should then repent of its insensitivity and atone, e.g., by allowing reporters to report the news without fear or favor, and by finally reporting what it failed to report during 1963-64 concerning Jim Crow segregation and Civil Rights demonstrations -- please see May 29th blog post, below:

St. Augustine Record Disappoints Readers Again -- This morning's St. Augustine Record reverberates with racism -- recovering from the ghosts of 1963-64

The May 29th St. Augustine Record front page reverberates with racism -- not the first time, but hopefully for the last. A front page banner scare headline about a minor bar brouhaha at Conch House, bearing the news that a Jacksonville Jaguars player has been charged with a misdemeanor assault on a security guard.  Two photos show the player -- presumed innocent under our judicial system -- is an African-American. The coverage is excessive and disproportionate.  How tacky.

Meanwhile, last Friday, May 24th, the Jacksonville Jaguars NFL team gave our City a great gift -- free admission to the Willie Galimore pool, in perpetuity, at a cost of some $15,000/year.  The deal was negotated by City Manager John Regan with the Jaguar's CEO.  This and the pool reopening are a victory for civil rights in our city. 
Was this news? Yes.  Did the St. Augustine Record report it? No.  No reporter attended.  How ungrateful. How unperceptive.
With no quotes and no reporter, the Record's front page had three photos of the same three white men (mayor, city manager and YMCA chair) cannon-balling into to the pool at the opening ceremony. Great pix, great guys, great day, but the shallow Record entirely missed the point of the pool dedication.
Incredibly, to date, the Record has not reported the news of the Jaguars generous gift, of free admission to our pool.
Incredibly, the Record did not bother reporting the fact that this is one of only four (4) municipal pools opened or rebuilt in Florida this year (after the City Manager negotiated with the County over its material breach of contract, netting $400,000 to rebuild and reopen the pool).
Not only did the St. Augustine Record not cover the Jaguars gift, it hasn't bothered thanking the Jaguars for it, either.  Nor did the Record describe the nature of the Environmental Justice battles in our City, 2005-date, which  led to the reopening of the Willie Galimore pool.
The St. Augustine Record has a lot for which to be thankful – its readers are very patient with its foibles.  Locals call the St. Augustine Record he “mullet wrapper” and have done so for decades.
The St. Augustine Record has a lot to atone for after 118 years. In particular, during the 1960s, the Record published addresses of KKK rallies in advance, inviting attendance.  It also published the names and addresses of African-American children attending previously all-white schools, leading to employer firings of their parents and at least one house being burned down.
The St. Augustine Record's publisher in 1964 was a racist. Today, the Record Publisher's are just downright insensitive, for the most part – they ignore the poor. The Record comforts the comfortable and afflicts the oppressed, as when it was part of the Chamber of Commerce juggernaut aimed at ridding St. George Street of artists and entertainers. 
Ever since Morriss Communications bought the Record, successive Record publishers have been promiscuously joining every non-profit board in sight, a walking conflict of interest/
Ron Davidson and another Record executive were members on the board of the secretive, illegal "First America Foundation" embarrassed us all – kicking off the planning of our City's 450th anniversary with a secretive group that did not do what it promised to do, while doing it illegally in secrecy, violating Florida's Sunshine and Open Records laws with $300,000 of City money (we got 2/3 of it back). 
Ron Davidson recently refused to print letters concerning the St. Augustine National Historical Park, historic preservation and restoration of buskers to St. George Street.  His errant editorials were the stuff of legend, with professional editors unable to restrain his Babbitt-like boosterism and unwillingness to stand up against arbitrary power and oppression and in favor of our human rights and our environment.
We hope that the Record's new Publisher, Delinda Fogel (formally commencing June 3, 2013), will not create conflicts of interest by joining every non-profit Board in sight, out of reflexive boosterism, not common sense.
How can the Record cover institutions on whose boards its publisher sits?
That's a conflict of interest if ever there was one.  Every Record Publisher has sat on oodles of Boards.
If Flagler Hospital commits medical malpractice or the First America Foundation creates Sunshine and Open Records violations, is it really proper for Morris Communications executives to be on their Board?   First America Foundation had two (2) Morris Communications execs from the Record on their board -- First America was dissolved and has ceased to exist because its creation and continued existence violated Sunshine and Open Records laws. 
Why would a real newspaper -- as opposed to a faux Fox-style newspaper -- allow itself to be co-opted so easily by those whom it should be reporting on?   This is an easy ethics question: join boards, create conflicts of interest, you are now in the tank. Why would any real journalist ever want to be in the tank with such bad actors as the Chamber of Commerce, Flagler Hospital and the defunct First America Foundation? It is unseemly. Never again.
We hope that Ms. Delinda Fogel will change the Record from being sexist, racist and anti-Gay to being more tolerant, as exhibited by yesterday's editorial about victmless crimes. 
We hope that Ms. Delinda Fogel will run the Record more like a newspaper and less like a morbid death watch (waiting for car and boat wrecks and bar fights and disdaining the Founder's faith in newspapers as watchdogs).  
Much of what American journalists report these days consists of what they call in Spanish  "successos menudos" -- trifling events -- whether wrecks or PR-driven fluff (like the Record's reflexively taking up for every single Sheriff and County Commissioners, great and small, honest and corrupt, without investigation, or kvelling over the retirement of City Manager WILLIAM B. HARRISS, our disdainful former City Manager, which included deletion of all critical comment from the Record's website).

We hope the Record will soon follow in the footsteps of the Lexington (Kentucky) Herald-Leader  and editor Marilyn Thompson: they blew the whistle on their forebear editors' racism and censorship in failing to cover the news, reporting what was never reported.  In observation of the 50th anniversary of the 1964 Civil Rights Act, the Record owes us an apology, and publication of the news and photos from its archives that it withheld in 1963-64.

We wish the new St. Augustine Record Publisher well.  We challenge Publisher Delinda Fogel to start covering the news, instead of covering it up, from this day forward.
What do you reckon?

UPDATE: Six (6) days after the May 24, 2013 Willie Galimore ribbon-cutting, the St. Augustine Record ran a story May 30th about the Jacksonville Jaguars NFL team's gift.  The Record is often days late with news, sometimes reporting on a Saturday what happened in a government meeting five days before.
The belated May 30, 2013 page one, one column headline story was credited to "From Staff," usually the way the Record sugar-coats a press release, or something written by Record Editor Peter Ellis.  In this case, there seems to be some actual reporting, but no mention of the racially insensitive closing of the pool by St. Johns County Administrator Michael Wanchick, who called then City Manager WILLIAM B. HARRISS during his Final Days, asking him if it was okay -- HARRISS never reported it to City Commissioners or obtained their approval -- he gave County Administrator Wanchick the go-ahead unadorned by any approval or community support.  The Record did not report that, having long ago decided that it would ignore racism in our town. 
The Record in October 2007 editorially endorsed bringing contaminated solid waste back to Lincolnville and calling it a "park." Our community organized and stopped HARRISS' vile plan, which was actually endorsed by the Record (which also reported that the public would be allowed to speak, which did not happen, with the Record's silence in the face of then-City Manager HARRISS' insisting it was a "misunderstanding" making the Record a willing accomplice to HARRISS' flummery, dupery and nincompoopery).

Preserving and Protecting St. Augustine, Florida

It's up to us to preserve and protect what we love here in St. Augustine.

Let's finally honor this special place with a “St. Augustine National Historical Park and National Seashore,” first proposed in 1939 (making for better, clearer, more succinct “branding” than sesquipedalianisms like “Guana-Tolomato-Matanazas-National-Estuarine-Research-Reserve,” “Anastasia State Park,” etc.)

Visitors love National Parks (“America's Best Idea”). St. Augustine deserves more NPS stewardship, for our 11,000 years of history and incomparable endangered vistas/nature. www.staugustgreen.com

Let's not wait for Congress – let us act now to preserve and protect St. Augustine's Historic Preservation (HP) Districts. Let's ban HP-unsuitable activities. Here are 20 activities to consider banning permanently from HP Districts:

“Adult” bookstores.

Antitrust violtions, price-fixing and fraud conspiracies.

Automobile, motorcycle and motor vehicle sales, rentals, repair, service and junkyards.

Balloon and helicopter/aircraft landings/takeoffs.

Casinos/gambling.

Chain-restaurants and chain-stores.

Chemical plants/refineries/storage-depots.

Classrooms.

Crematoria/funeral homes.

Dormitories.

Fortune-tellers.

Fuel-burning powerplants.

Manufacturing plants/warehouses.

Pawnshops.

Routine daytime eighteen-wheeler truck deliveries.

Sewage treatment-plants.

Slaughterhouses.

Tattoo-parlors.

Toxic/nuclear materials/wastes/weapons.

Zoos.

Our Ancient City;s patron Saint, Saint Augustine wrote, “an unjust law is no law at all.” St. Augustine City Commissioners: please repeal/amend dysfunctional “unjust laws” that purport to criminalize singing, painting, acting, music or dancing. Several successive anti-artist, Nuremberg-style laws were ruled unconstitutional -- a blot on the escutcheon of Our Nation's Oldest European-founded City.

Barbaric, Obsolete, Negative, Anti-Busker Ordinances (BONABO) wasted millions of dollars oppressing artists. A few commercial landlords (campaign contributors) demanded police enforce their prejudices, rolling out the “Unwelcome Wagon” with hundreds of artist, musician and entertainer arrests, in our name. These “Jim Crow” style arrests hurt talented tourism workers and our image – self-inflicted wounds, bringing shame upon our City, making St. George Street much less intriguing. Enough.

Everyone misses buskers – let's welcome them, with rational, fair regulations developed with mutual respect and understanding. Diversity, healing ancient wounds and respecting human rights are vital 450th legacies.

Finally, St. Augustine Police Chief Loren Lueders and former SAPD Chief (and current County Sheriff) David B. Shoar were both right to reject red-light cameras several years ago, as "tourist-unfriendly."  We don't need to privatize law enforcement to oligopolists. damaging our reputation (potential $500 fines for running a red light, while taking appeals away from judges).

Please “nip it in the bud,” St. Augustine Beach Commissioners.

To be continued....

Our City is Making Progress, But Our County Requires Stricter Scrutiny

See below.

The St. Augustine Record hasn't reported the details of the Civil Rights victory at the Willie Galimore Center Pool.  

Thanks to our Mayor, City Commissioners and City Manager John Regan, the Willie Galimore Pool has reopened, and thanks to the Jacksonville Jaguars, pool admission will be free forever.   Thank you! 

In a stunning display of Environmental Racism, St. Johns County had neglected the Galimore Pool, but good lawyering to us $400,000 as remedy for the County's breach of contract (exacerbated by former City Manager WILLIAM B. HARRISS a/k/a "WILL HARASS" telling County Administrator Michael Wanchick it was okay (without asking Commissioners).

The pool, like nearly-complete Riberia Street, is proof that Civil Rights and Environmental Activism works.  It's our town and our time, and we're creating a new city before our eyes -- one where tolerance, historic and environmental protection and diversity rule (and not the KKK).  Thanks to all the activists who made this possible.  See below.

Meanwhile, our County contracts with a secretive $4.6 million/year organization, the Visitors and Convemtion Bureau, that refuses to provide documents on its Antitrust and Civil Rights Compliance Policeis, if any. Dr. Peter Yesawich, Ph.D., told VCB members at World Golf Village May 14, 2013 they should raise prices. Never again should there be any discussion of pricing at VCB meetings. It is illegal. It is unseemly and it's our money.  VCB must start advertising St. Augustine's 450th and Florida's 500th in Miami.  VCM must reach out to African-American, Hispanic, GLBT and youth tourists. It's our future. VCB and its contractor, multinational tourism consulting and advertising agency MMGY, need to get with the program and drop the snobbery.   Pray for them.  The contract with VCB expires at 11:59 PM on September 30, 2013.  Perhaps we can create our own 501(c)(6) for St. Augustine and St. Augustine Beach, and let Ponte Vedra go its separate way.  What do you reckon?

We shall overcome!


See below.

IN HAEC VERBA -- Here's the Florida Restaurant and Lodging Association statement on Antitrust Compliance -- It Says No Discussions of Pricing, Ever, Formal or Informal -- Where is the St. Johns County Visitor and Convention Bureau (VCB) Anittrust Compliance Statement? VCB Must Adopt One At Its Next Meeting, Hesto Presto, and Apologize for and Reject MMGY Vice Chairman Urging.VCB Members to Raise Their Prices

Florida Restaurant and Lodging Association (FRLA) Anti-trust statement
ANTITRUST LAWS AND THEIR APPLICATION TO FRLA MEMBER ACTIVITIES
As important contributors to your local economy and to the economy of the state, it is critical that you have the ability to come together as FRLA members and discuss common areas of interest regarding Florida’s food service and lodging, hospitality, and tourism industries (sic). At the same time, however, it must be remembered that FRLA members are also competitors. Under federal and state antitrust laws, competitors are permitted to engage in cooperative behavior, under trade association auspices or otherwise, as long as these actions do not reduce competition among themselves or help their suppliers or customers to reduce competition.
In coming together as a trade association, FRLA members must avoid taking any collective action, or giving the appearance of taking any collective action, that would eliminate, restrict, or seek to control competition. If FRLA members engage in any discussions at FRLA meetings relating to significant factors of competition, it could be inferred that such a discussion among competitors is for the purpose of agreeing upon a common course of business conduct.
With this in mind, FRLA cautions all of its members that the following topics are not proper subjects for consideration or discussion at any meeting of FRLA members, officers, directors, whether formal or informal:
(a) Raising, lowering, or fixing the prices at which they will buy or sell goods or services;
(b) Dividing geographic markets, services offered, or customers served; or
(c) Group boycotts of a particular supplier of goods or services or a class of suppliers.
From the discussion of such topics, agreements among competitors may arise or be inferred, exposing participants to severe criminal and civil penalties under state and federal antitrust laws.
FRLA members, officers, and directors must be vigilant in preventing any meeting of FRLA members from becoming a forum for the discussion of the above topics. All agendas for sanctioned FRLA meetings are prepared and reviewed in light of the foregoing, and members should be mindful not to stray from the agenda prepared for such meetings.
THE FOLLOWING STATEMENT SHOULD BE READ ALOUD AT THE COMMENCEMENT OF ANY MEETING OF FRLA MEMBERS:
FRLA members are reminded that they should not enter into discussions with each other regarding the following:
(a) Raising, lowering, or fixing the prices at which they will buy or sell goods or services;
(b) Dividing geographic markets, services offered, or customers served; or
(c) Group boycotts of a particular supplier of goods or services or a class of suppliers.
A more detailed explanation of the effect of antitrust laws on the activities of FRLA members is available for your inspection and review.

IN HAEC VERBA: County Contract With VCB Requires Open Records Compliance; County Delegated Traditional County Government Function to VCB Ex Contractu

Dear Mr. Goldman:
1. As St. Johns County Assistant County Attorney Regina D. Ross eloquently admits (below), "Articles 8 and 9 [of the SJC-VCB contract] explicitly provide that access to, and disclosure of, any records related to the services rendered to the County are subject to applicable provisions of the Public Records Act."
2. Ipse dixit.
3. Hence, VCB's Open Records evasion is a material breach of VCB's contract with SJC BCC.  See Article 21 (Default) of the SJC-VCB contract.
4. The proof is irrefragable -- St. Johns County delegated VCB what is ordinarily a county governmental function. How do we know that? Our Florida Legislature adopted certain narrow exemptions in the Open Records Act, which are described by the Florida Attorney General's Sunshine Manual:

(3) Tourism promotion records

There are several statutes which exempt certain information obtained or held by state or local tourism agencies. For example, s. 125.0104(9)(d)1., F.S., exempts information given to a county tourism promotion agency, which, if released, would reveal the identity of those who provide information in response to a sales promotion, advertisement, or research project or whose names, addresses, meeting or convention plan information or accommodations or other visitation needs become booking or reservation list data.

Section 125.0104(9)(d)2., F.S., provides an exemption for the following records when held by a county tourism promotion agency: booking business records, as defined in s. 255.047, F.S.; a trade secret as defined in s. 812.081, F.S.; trade secrets and commercial or financial information gathered from a person and privileged or confidential, as defined and interpreted under cited federal law. See also ss. 288.1224(7) and 288.1226(8), F.S. (confidentiality of certain data submitted as part of marketing or advertising research projects undertaken by state tourism agencies).

http://www.myflsunshine.com/sun.nsf/manual/5a60474cbfb8dbf4852566f30068571f

(emphases added)

5. Our Legislature would never have enacted these narrow county touirsm exemptions if it did not understand "a county tourism agency" and tourism promotion to be a traditional county function. Hence, the SJC BCC delegated to SJCVCB, Inc. a traditional county government function. It's our money. They are our records. Please cease and desist from all further evasions -- VCB's "massive resistance" is an embarassment to our County, our citizens, our tourists, our State and to VCB and MMGY.
6. Again, there is no reasonable legal basis for you to continue to withhold VCB's Antitrust and Civil Rights Compliance Policies, if any.
7. There is no reasonable basis for you to continue to withhold VCB's other documents that I have requested.
8. VCB must not waste time and money on a display of bad manners -- it is bad PR, bad for the 450th/500th, and a waste of our bed tax dollars.
9. It is illegal to "contract, combine or conspire" to violate the antitrust laws. 15 U.S.C. 1 et seq.   I have raised questions about MMGY's Vice Chairman telling VCB members to raise there prices. Your response is to resist Open Records jurisdiction. In the words of Richard Milhous Nixon, VCB is "stonewalling it."
10. There is no Open Records exemption for evidence of possible antitrust violations.
11. There is no Open Records exemption for evidence of possible civil rights violations.
12. There is no justifying the actions of VCB and MMGY in refusing to advertise in Miami, to African-Americans, to youth and to GLBT people, or in allowing MMGY to tell some 100 assembled tourism business people to raise prices. Hence, I expect your full cooperation with our investigation, from this day forward. VCB must cease and desist from all further breaches of its contract with SJC BCC.
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed
Ed Slavin
Clean Up City of St. Augustine
www.cleanupcityofstaugustine.blogspot.com
Box 3084
St. Augustine, Florida 32085-3084
904-377-4998

IN HAEC VERBA: Letter to St. Johns County Visitors and Convention Bureau Executive Director Richard Goldman re: SJC VCB's Violation of Open Records and Sunshine Laws

Dear Mr. Goldman:
1. Your desire to talk to me, expressed in your message, is appreciated. I can meet you today. What time would be good for you?
2. Meanwhile, my May 20, 2013 and later Open Records requests are non-negotiable: VCB must comply with Open Records, Sunshine, Antitrust, Civil Rights and Fair Housing laws, from this day forward.   Failing that, a Florida court will order compliance, and payment of reasonable attorney fees [to remedy Open Records violations].
3. Kindly remember the ill-fated, misbegotten, money-wasting former "First America Foundation" and related violations of the Sunshine and Open Records laws by the City of St. Augustine, including a proposed trip to Spain by four out of five Commissioners. Eighteen of us were represented pro bono by Holland & Knight. The violations swiftly ended. We did not even have to file a lawsuit. The First America Foundation was dissolved. The experience of our City of St. Augustine and the First America Foundation -- a government contractor just like VCB -- demonstrates the meritless nature of your "defenses" to providing Open Records. You are barking up the wrong tree, Mr. Goldman, e.g., with such non sequitur statements that you don't work in a county-owned building The technical terms for your cavils and quibbles with Open Records jurisdiction are "malarkey" and "chutzpa."
4. Kindly contemplate the following excerpt from the Florida Attorney General's Manual on our Sunshine laws:  (snip -- see next blog entry for full text of excerpt)  
5. As Robert Kennedy once wrote Senator James O. Eastland in 1967, "repent now, there's still time."
6. I expect document production to commence by 11 AM on May 30, 2013. Herein faileth not.
7. Please govern yourself accordingly.
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed Slavin
Box 3084
St. Augustine, Florida 32085-3084
904-377-4998

IN HAEC VERBA: 2013 FLORIDA ATTORNEY GENERAL SUNSHINE MANUAL ON DUTY OF ST. JOHNS COUNTY VISITOR AND CONVENTION BUREAU TO COMPLY WITH OPEN RECORDS LAW

Delegation test


While the mere act of contracting with a public agency is not sufficient to bring a private entity within the scope of the Public Records Act, there is a difference between a party contracting with a public agency to provide services to the agency and a contracting party which provides services in place of the public body. News-Journal Corporation v. Memorial Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999); and Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002) (when a public entity delegates a statutorily authorized function to a private entity, the records generated by the private entity’s performance of that duty become public records).



Stated another way, business records of entities which merely provide services for an agency to use (e.g., legal professional services) are probably not subject to the open government laws. Memorial Hospital-West Volusia, Inc., supra. But, if the entity contracts to relieve the public body from the operation of a public obligation such as operating a jail or providing fire protection, the open government laws do apply. Id. And see Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 307 (Fla. 3d DCA 2001) (consortium of private businesses created to manage a massive renovation of an airport was an "agency" for purposes of the Public Records Act because it was created for and had no purpose other than to work on the airport contract; "when a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be").



Thus, in Stanfield v. Salvation Army, 695 So. 2d 501, 502-503 (Fla. 5th DCA 1997), the court ruled that the Salvation Army was subject to the Public Records Act when providing misdemeanor probation services pursuant to a contract with Marion County. See also Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999) (where county humane society assumed the governmental function to investigate acts of animal abuse pursuant to statutory authority, the records created and maintained in connection with this function were governed by the Public Records Act).



Similarly, a private company under contract with a sheriff to provide medical services for inmates at the county jail must release its records relating to a settlement agreement with an inmate. Since these records would normally be subject to the Public Records Act if in the possession of the public agency, they are likewise covered by that law even though in the possession of the private corporation. Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999). And see Times Publishing Company v. Corrections Corporation of America, No. 91-429 CA 01 (Fla. 5th Cir. Ct. December 4, 1991), affirmed per curiam, 611 So. 2d 532 (Fla. 5th DCA 1993) (private corporation that operates and maintains county jail pursuant to contract with the county is "acting on behalf of" the county and must make available its records for the jail in accordance with Ch. 119); Mae Volen Senior Center, Inc. v. Area Agency on Aging, 978 So. 2d 191 (Fla. 4th DCA 2008), review denied, 1 So. 3d 172 (Fla. 2009) (private agencies on aging designated by the Department of Elder Affairs to coordinate and administer department programs and to provide services for the elderly within a planning and service area are subject to Public Records Law when considering any contracts requiring the expenditure of public funds).



In Multimedia Holdings Corporation Inc. v. CRSPE, Inc., No. 03-CA-3474-G (Fla. 20th Cir. Ct. December 3, 2003), the circuit court required a consulting firm to disclose its time sheets and internal billing records generated pursuant to a subcontract with another firm (CRSPE) which had entered into a contract with a town to prepare a traffic study required by the Department of Transportation. Rejecting the subcontractor's argument that Ch. 119, F.S., did not apply to it because it was a subcontractor, not the contractor, the court found that the study was prepared and submitted jointly by both consultants; both firms had acted in place of the town in performing the tasks required by the department: "[T]he Public Records Act cannot be so easily circumvented simply by CRSPE delegating its responsibilities to yet another private entity." And see AGOs 08-66 (not-for-profit corporation contracting with city to carry out affordable housing responsibilities and screening applicant files for such housing is an agency within the scope of Ch. 119), 99-53 (while not generally applicable to homeowners associations, Ch. 119 applies to architectural review committee of a homeowners association which is required by county ordinance to review and approve applications for county building permits as a prerequisite to consideration by the county building department), and 07-44 (property owners association, delegated performance of services otherwise performed by municipal services taxing unit, subject to Public Records Law when acting on behalf of the taxing unit).



The following are other examples of private entities that have been found to have been delegated a governmental function and thus subject to the Public Records Act in carrying out those functions:





Employment search firm: Shevin v. Byron, Harless, Schaffer, Reid and Associates, supra. Accord AGO 92-80 (materials made or received by recruitment company in the course of its contract with a public agency to seek applicants and make recommendations to the board regarding the selection of an executive director, subject to Ch. 119).

Engineering company providing ongoing engineering services to city: B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17 (Fla. 1st DCA 2008), review denied, 4 So. 3d 1220 (Fla. 2009)



Towing company: Fox v. News-Press Publishing Company, Inc., 545 So. 2d 941 (Fla. 2d DCA 1989)





But see Sipkema v. Reedy Creek Improvement District, No. CI96­114 (Fla. 9th Cir. Ct. May 29, 1996), per curiam affirmed, 697 So. 2d 880 (Fla. 5th DCA 1997), review dismissed, 699 So. 2d 1375 (Fla. 1997), in which the court, utilizing both the delegation and totality of factors tests, held that reports prepared by Walt Disney World's private security force regarding incidents on roads within the Disney property are not public records even though Disney contracted to provide some security services for a public entity, the Reedy Creek Improvement District.

Thanking the City of St. Augustine, the Jacksonville Jaguars and Local Residents for Galimore Center Restoration

"Here we right a wrong."

That is carved in marble on the Japanese interment monument in Washington, D.C.

It might have been the lead in the St. Augustine WRecKord today, had the viewspaper bothered to send a reporter.  While busily kissing up to developers, printing racist Ann Coulter columns and censoring or rejecting local news and opinions, the Morris Communications empire's local mossbacks couldn't be bothered to cover the opening of the Willie Galimore Center Pool yesterday.  Yes, there are photos, and a cut line, on page one, but no story.

Here's what the WRecKord missed:

1. This is one of only four pools being opneed or rehabilitated by a city government in Florida.   It replaces the decreit pool that Environmental Racism allowed to fall apart. Under City Manager WILLIAM B. HARRISS (a/k/a WILL HARASS), the County Administrator called to ask if it was okay to let the pool not be maintained.  Republican Lord of All He Surveyed, WILLIAM B. HARRISS never bothered checking with City Commissioners.  This violated the public trust.

2. Enter City Manager John Regan, who worked with legal counsel to get St. Johns County to write a check for $400,000 as a remedy for its breach of contract to maintain the pool.

3. Architect Jerry Dixon, a pool contractor and city staff are responsible for the wonderful look of the pool, which has five lap lanes, a learn to swim and play area.  The pool will be run by the YMCA.

4. Best of all, thanks to a last-moment pitch by City Manager John Regan -- in response to residents' concerns about fees -- the Jacksonville Jaguars football team is donating the cost of learn to swim ("waterproofitng") classes for 100 local residents, and writing a check to provide for free admission to the pool for everyone, 365 days a year.  Thank you!

5. All of this is from a city that does not have a recreation department, but innovated because of the callous indifference of the county government and our former City Manager, WILLIAM B. HARRISS.

6. A city once called "the most lawless" city in America by Rev. Dr. Martin Luther King, Jr. is now on the mend, listening to citizens, respecting rights, affirming human dignity, and firmly committed to providing equal services to its citizens, as exemplified by Riberia Street construction and the Willie Galimore Center Pool.

7.  A city that once literally dumped on Lincolnville has shown its respect for the Fourteenth Amendment, whihc requires equal protecton of the law. 

8. What's next?  We need to persuade the mendacious mediocrities at multinational travel advertsing consultant MMGY and oleaginous Richard Goldman at the St. Johns County Visitor and Convention Bureau to end their snobby, racist advertising policies, which refuse to market our town and our 450th and 500th to people in Miami, African-Americans, youth and GLBT people.  It's our money.  $4.6 million a year, swathed in secrecy and smarminess. The story of the photos in the tourist brochure says it all! See below.

Yes we can!

IN HAEC VERBA: ARROGANT, ANGRY GOVERNMENT CONTRACTOR ST. JOHNS COUNTY VISITORS AND CONVENTION BUREAU (SJCVCB) RESISTS Accountability for Your Bed Tax Dollars Redlining and Discriminating Against Miami, Minorities, Youth, GLBT Markets

Sent: Fri, May 24, 2013 7:05 pm

Subject: Re: Antitrust and Civil Rights Compliance Policies

What on Earth are you thinking or talking about!? Please provide documents now. Please retract libel and lashon hara now. Return call please now. Your words are freighted with animus toward First Amendment protected activity. Who is your personal and organizational counsel?


On May 24, 2013, at 3:08 PM, Richard Goldman wrote:

RICHARD GOLDMAN

Executive Director. St. Johns County Convention and Visitors Bureau:

Violates Open Records Law and Refuses to Provide Government Contractor Records

on $4.6 Million Annual Visitor and Convention Bureau --

Not Even its Antitrust and Civil Rights Compliance Policies

(Which May Not Even Exist)

Dear Mr. Slavin,
Please see the emails below including the opinion of the county attorney’s office regarding the application of the Public Records Act. Consistent with the opinion, the VCB will not be providing the requested documents. Suffice it to say that we do follow the laws relating to anti-trust behavior, equal employment protections for our staff current and future, as well as all other ordinances and statutes relating to the conduct of the VCB’s business.
Also, this week a member of staff reported being harassed by you and that you interfered with patrons at the beaches visitor information center. Such behavior must cease immediately.

Sincerely,
Richard Goldman
Executive Director
St.Augustine, Ponte Vedra & The Beaches
Visitors & Conventions Bureau
office:904.829.1711
direct:904.209.4426


From: Richard Goldman
Sent: Wednesday, May 22, 2013 5:39 PM
To: 'Commissioner Rachael Bennett'; Patrick McCormack; Regina Ross
Subject: RE: Antitrust and Civil Rights Compliance Policies


Commissioner Bennett, Mr. McCormack and Ms. Ross,
Indeed a thorough analysis. Thank you for sharing, we will pursue an independent opinion as suggested.

Meanwhile, below I have answered the questions posed or confirmed Ms. Ross’ review regarding the “factors” considered in determining whether a private organization is subject to the public records act. The CAPS are for the sake of distinguishing VCB answers and should not be interpreted as shouting.

1. The County does provide a level of public funding in the way of tourist development tax revenues in exchange for the services provided by the VCB; CONFIRMED
2. Whether there is any comingling of public and private funds is a question which can be best answered by the VCB; THERE IS NO COMINGLING
3. Very few, if any, VCB activities are conducted on County owned property; CONFIRMED
4. There is no indication that the services provided by the VCB are an integral part of the County’s decision-making process; AGREED
5. The VCB performs tourist-related marketing and promotions services at the direction of the County, which is not customarily a governmental function; AGREED
6. The extent of the County’s involvement with the VCB is limited to activities that promote St. Johns County a tourist destination, and the County’s exercises of control over the organization is limited to the manner in which the contractual services are provided; AGREED
7. The VCB is not a County created agency; CONFIRMED
8. The County’s financial interest in the VCB is limited to the use of funds provided by the County in accordance with the terms of the contract; CONFIRMED
9. For whose benefit the VCB is functioning is also a question better answered by the VCB. VCB ACTIVITIES DIRECTLY BENEFIT THE TOURISM RELATED BUSINESSES INCLUDING TOURISM DEVELOPMENT TAX COLLECTORS. INDIRECTLY, ITS ACTIVITIES STIMULATE VISITOR SPENDING AND COLLECTION OF MORE SALES RELATED TAXES AND FEES THAN WOULD BE COLLECTED FROM RESIDENTS ALONE.
Richard Goldman
Executive Director
St.Augustine, Ponte Vedra & The Beaches
office:904.829.1711
direct:904.209.4426

From: Commissioner Rachael Bennett [mailto:bccd5@sjcfl.us]
Sent: Wednesday, May 22, 2013 4:20 PM
To: Patrick McCormack; Regina Ross
Cc: Richard Goldman
Subject: Re: Antitrust and Civil Rights Compliance Policies
An excellent and thorough response. Thank you so much Regina!
Richard please feel free to share with your board as you see fit but please be certain to include Patrick's strong recommendation that final determination be made by the counsel to VCB
Thanks!
Rachael L. Bennett
St Johns County Commission
District 5
(904)209-0305 office
(904)315-7260 cell
Sent from my iPhone

On May 22, 2013, at 4:07 PM, "Patrick McCormack" wrote:
Commissioner Bennett,
Pls see Regina’s analysis below…again, the VCB needs to make its own determination…this is how we see it based on what we have seen.
Pls let me know if you would like to discuss further.
v/r
Pat
From: Regina Ross
Sent: Wednesday, May 22, 2013 3:57 PM
To: Patrick McCormack
Cc: Diane Lehmann; Judy Hamilton
Subject: RE: Antitrust and Civil Rights Compliance Policies
Patrick:
Based upon the email chain below, it appears that questions concerning private organizations and open government laws have resurfaced. In response to Commissioner Bennett’s request for information on the issue, consider the following general information regarding private organizations and open government laws.
The Sunshine Law (Chapter 286, F.S.)
The Sunshine Law applies to “any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision.” Courts have construed the law very liberally to give effect to its purpose. Accordingly, it applies equally to elected and appointed boards or commissions, and is also applicable to advisory boards which make recommendations for consideration by a public agency. Generally, private organizations are not subject to the Sunshine Law unless the private organization has been delegated the authority to perform some governmental function. Simply stated, the Sunshine Law would not apply to a private organization where no delegation of legislative or governmental function by any governmental entity has occurred and the organization does not act in an advisory capacity to the governmental agency.
Relatively speaking, most of the litigation regarding the application of open government laws to private organizations providing services to public agencies has been in the area of public records. Accordingly, Courts have often looked to Chapter 119, F.S. to determine the applicability of the Sunshine Law.
The Public Records Act (Chapter 119, F.S.)
Section 119.011(11) of the Florida Statutes defines “public records” to include “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of 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. Additionally, section 119.011(2) defines “agency” to include any state, county, district, authority or municipal officers, department, division, board, bureau, commission or other separate unit of government created or established by law….and any other public or private agency, person, partnership, corporation or business entity action on behalf of any public agency.
The term “agency” is broadly defined to include private entities acting on behalf of any public agency; therefore, provisions of the Public Records Act are not limited to governmental entities. In light of the purpose of the Public Records Act, the broad definition ensures that public agencies do not avoid their duty to disclose records by simply delegating the responsibility to private entities by way of a contract.
While at first glance this premise seems straightforward, Florida case law clearly establishes that a more complex issue is presented when a private entity, not otherwise connected with government, provides services for a government body.
More succinctly stated, whether a private entity is subject to the Public Records Act is dependent upon whether the private entity is “acting on behalf of an agency”. Unfortunately, the Florida Statutes provides no clear criteria for determining when a private entity is “acting on behalf of a public agency.” Moreover, there is no single factor that is controlling on the question of when a private entity becomes subject to the Public Records Act. For instance, Florida courts have found that the mere fact that a private entity is under contract with or receiving funds from a public agency is not sufficient, standing alone, to bring the private entity within the scope of the Public Records Act. In addressing the issue, the Florida Supreme Court has adopted the “totality of factors” test to use as a guide for evaluating whether a private entity is subject to the Public Records Act. The factors listed by the Court include:
1. The level of public funding provided to the private entity;
2. Whether there is any comingling of public and private funds;
3. Whether the activities are conducted on publically owned property;
4. Whether the services contracted for are an integral part of the public agency’s chosen decision-making process;
5. Whether the private entity is performing a governmental function or a function which the public agency otherwise would perform;
6. The extent of the public agency’s involvement with, regulation of, or control over the private entity;
7. Whether the private entity was created by the public agency;
8. Whether the public agency has a substantial financial interest in the private entity; and
9. For whose benefit the private agency is functioning.
Application of the totality of factors tests usually requires a thorough analysis of any resolutions, or other provisions that establish the function to be performed by the private entity along with review of the terms of the contract, lease or other document between the governmental body and the private organization.
Please note that there is a difference between a private entity contracting with a public agency to provide services to the agency and a private entity contracting with a public agency to provide services in place of the agency. In other words, the business records of a private entity that simply provides a service for an agency is more than likely not subject to disclosure under the Public Records Act. However, if a private entity contracts to relieve the public agency from the operation of a government function, the open government laws do apply.
In reference to the discussions in the email chain below, while the County does have a contractual relationship with the VCB to provide a specific scope of services to the County (see Article 3 and Attachment A of the attached contract), you are absolutely correct in stating that the VCB, along with its counsel, would have to make a determination as to whether the organization is subject to open government laws. Based on my extremely cursory review in applying the factors above:
1. The County does provide a level of public funding in the way of tourist development tax revenues in exchange for the services provided by the VCB;
2. Whether there is any comingling of public and private funds is a question which can be best answered by the VCB;
3. Very few, if any, VCB activities are conducted on County owned property;
4. There is no indication that the services provided by the VCB are an integral part of the County’s decision-making process;
5. The VCB performs tourist-related marketing and promotions services at the direction of the County, which is not customarily a governmental function;
6. The extent of the County’s involvement with the VCB is limited to activities that promote St. Johns County a tourist destination, and the County’s exercises of control over the organization is limited to the manner in which the contractual services are provided;
7. The VCB is not a County created agency;
8. The County’s financial interest in the VCB is limited to the use of funds provided by the County in accordance with the terms of the contract;
9. For whose benefit the VCB is functioning is also a question better answered by the VCB.
In balancing the factors, while I am unable to definitively state whether the VCB is subject to open government laws, I do not believed (sic) that its contractual relationship with the County, standing alone, places the organization within the scope of the Sunshine Shine Law or subjects its business records to disclosure under the Public Records Act. As an additional note, with respect to the contract between the County and the VCB, Articles 8 and 9 explicitly provide that access to, and disclosure of, any records related to the services rendered to the County are subject to applicable provisions of the Public Records Act.
I hope this information assists. If there is anything else I may provide or clarify, please let me know. Also, I can provide case law citations upon request.
ReginaFrom: Patrick McCormack
Sent: Wednesday, May 22, 2013 8:33 AM
To: Regina Ross
Subject: FW: Antitrust and Civil Rights Compliance Policies
From: Ed Slavin [mailto:easlavin@aol.com]
Sent: Tuesday, May 21, 2013 3:18 PM
Cc: Richard Goldman; Patrick McCormack
Subject: Re: Antitrust and Civil Rights Compliance Policies
Does VCB have any compliance policies? Please respond, e.g., with documents, today. Talk to you both soon.
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com

"Ideas Have Consequences"

As my Georgetown University Political Theory Professor, Jose Sorzano said it best, "Ideas have consequences."  (He served as Deputy UN Ambassador under Jeanne Kirpatrick during the Reagan Admistration.)

Our St. Johns County Visitor and Convention Bureau and its monopolistic international tourism consultant, MMGY, have potentially run afoul of civil rights laws by publishing expensive Apartheid-style travel guides, with 199 identifiable white people and some four (4) identifiable Hispanic people (one is Ponce de Leon on the cover).

There are zero Native American Indians, despite the fact that St. Augustine is where the Columbian exchange began in North America, and we have 11,000 years of Native American history. 

There are only some eleven (11) African-Americans, most of whom appear to be happy slaves.

Fair Housing and Civil Rights cases forbid marketing materials that don't show African-Americans and other minorities. Yet local developers in St. Johns County had billboards and newspaper advertisements that did that for years. So now does our VCB. This is Jim Crow 1950s marketing, and it is not working. Despite always-rosy projections, we average only nearly 60% lodging occupancy.

Wonder why?

Under advice from MMDY, a conflicted travel industry consultant, VCB is refusing to advertise in Miami, potentially sabotaging our City's strategic plan for the 450th/500th celebrations, which is to attrack Hispanic tourists from South Florida.

One City official said, "That's crazy."  VCB and MMGY still offer no principled reason for not advertising in Miami. 

Our City officials were never informed of this possibly illegal redlining of advertising in the Miami market.  This frustrates the City's 450th strategic marketing plan.   As JFK said during the Cuban Missile Crisis, "There's always some poor SOB who doesn't get the word."

VCB has not been forthcoming with documents or answers -- not even its Antitrust and Civil Rights Compliance policies, if any.

VCB is not with the program. St. Augustine's future lies in historic and environmental tourism – VCB is still caught up in past mistakes

On June 11, 1964, Rev. Martin Luther King, Jr. wrote rabbis, calling St. Augustine "the most lawless" city in America. A week later, the largest mass arrest of rabbis in America took place here.

Now that our City government is listening to the people, it is on the path to recovery.

Meanwhile, dominated by mossbacks, our County VCB needs to get with the program.  See below, including article about judgment and settlement involving illegal, racially exclusionary real estate ads in Washington, D.C.  (The plaintiff was Georgetown Law Professor Girardeau Spann and the defendant was a Mobil Oil real estate subsidiary in Northern Virginia, which had only white models in its ads).

Our VCB must not "redline" Miami, African-Americans, Hispanics, youth and GLBT people.

Our VCB must not provide a forum for price manipulation and pricefixing by competitors -- tourism is interstate commerce.  VCB is a government contractor and discussions of pricing (or recommendations to raise prices) raise eyebrows, hackles and concerns about possible antitrust violations and appearance of impropriety.

Knock if off.

Our VCB must honor its MMGY consultant's wisdom about the St. Augustine National Historical Park and National Seashore -- MMGY Vice Chairman Dr. Peter Yessawich, Ph.D. said May 14, 2013 that creating a St. Augustine National Historical Park and National Seashore would boost our local economy, "without questiont" having a "positive effect."  www.staugustgreen.com

Dr. Yessawich is right.  www.staugustgreen.com

Sit up and listen:

VCB needs to endorse creation of a St. Augustine National Historical Park and National Seashore.
www.staugustgreen.com

VCB must be the most stalwart advocate -- it must be all over it, "like a rat on a Cheeto(R) (a wonderful phrase I hereby borrow from Mayor Joseph L. Boles, Jr., a member of the federal St. Augustine 450th Commemoration Commission).

VCB must listen to our two local city governments about Fair Housing and diversity in marketing.
City of St. Augustine Ordinance 2012-15  (Fair Housing), bans sexual orientation discrimination.
City of St. Augustine Beach Ordinance 2013-1 & 2013-3 (Fair Housing and Employment), bans sexual orientation and gender identity discrimination.  These elected boards voted unanimously.  So did our Anastasia Mosquito Control District of St. Johns County (Employment, 2009).  Sheriff David Shoar told me that he banned sexual orientation by administrative order, sua sponte.

What about VCB?  Will VCB reach out to GLBT tourists now that all of these public officials are on record that our hearts are open, we're open for business, and we're NOT Jacksonville f/k/a "Cowford," (a provincial place with tall buildings and well-funded bigots, one whose City Council refuses to adopt any GLBT human rights ordinance of any kind, and whose allegedly Democratic Mayor refused to speak out for GLBT rights).

St. Augustine is a different "product" than the rest of Northeast Florida -- we must not hide our light under a bushel basket.  The product is tolerance and diversity, which is why Mumford & Sons is playing concerts here in September, and not in Jacksonville, f/k/a "Cowford."

VCB must respect Fair Housing, Open Records, Antitrust and Civil Rights Laws.  This is not Jacksonville.

VCB must welcome the Hispanic, African-American, Civil Rights, GLBT and Youth touirsm markets.  Advertising in bankrupt Reader's Digest hardly appeals to our strengths -- this is a cool hip place with wonderfully diverse history, nature and eco-tourism.  VCB seems loathe to "sell" this "product" (a metaphor MMGY and VCB repeatedly use, even calling the tourism business an "industry").

Tourism should be a profession or a business, not an "industry."  This is not a mining operation -- it is an effort to raise our quality of life by preserving and protecting St. Augustine and its rich diverse culture.

VCB's appreciation of our history is incomplete and unsophisticated, lacking nuance and thought.

St. Augustine tourism promotion must appeal to what is genuine, starting with respect for 11,000 years of Native American history, 500 years of  Roman Catholic, African-American, Hispanic and Jewish history, and many years of English Mincorcan, Greek, Civil War, Civil Rights and American history. 

VCB must lead, follow or get out of the way.

IN HAEC VERBA -- Fair Housing Advocates re: Six-figure settlement of Fair Housing case involving racially exclusive advertising models

http://www.fairhousing.com/index.cfm?method=page.display&pagename=advocate_july95_page3

Washington Area Advertising Case Settled for $841,000
Home > News Archive > The Advocate > July 1995
An African-American Georgetown University law Professor and two fair housing advocacy groups have settled their nine-year "white models" advertising case for $841,000. They had charged that newspaper ads which used only white models violated fair housing laws.
Law professor, Girardeau A. Spann, the Fair Housing Council of Greater Washington, and the Metropolitan Planning and Housing Association brought the charges. A federal jury in 1992 had ordered the Arlington real estate developer to pay $850,000 in damages to the African-American professor and the two housing groups.
The June 1995, settlement with Mobil Land Development Corp. was for slightly less money to avoid an appeal. Mobil operates the Colonial Village property but is best known as the current developer of Reston.
The case decided in U. S. District Court in Washington, involved ads than ran between 1981 and 1986 in the Washington Post and several other local papers for the sale of condos at Colonial Village, a garden-apartment community located in Arlington. In that period, newspaper advertisements for the 640 apartments in Colonial Village, showed 251 white models, but no African-American models.
The legal battle began when Spann started looking for a house or condo to buy and noticed real estate ads showing only white models. "It made me angry and it still makes me angry to this day, " Spann said earlier. He had discussed the ads with an attorney friend of his who told him, "Now wait a minute, this is racial steering. It has to be illegal. Why don't we sue them for it?" (See December, 1992, Advocate p.4)
Fair housing officials had testified that the Colonial Village ads harmed their mission or goals and caused them to divert resources to investigate and counteract the discriminatory effects of the ads. Their attorneys said non-white residents of the Washington area were victims of bias because of Mobil Land advertising that displayed only white models.
The lawsuit against Mobil Land was one of about 40 administrative complaints against advertisers and developers in the mid-1980s but was the only one that went to trial, said David Berenbaum, executive director of the Fair Housing Council of Greater Washington. Spann and the fair housing groups alleged that Mobil Land violated the federal fair housing law because only white models were pictured in advertising until May 1986. The law requires that the models used in ads reflect composition of a community.
The Colonial Village development still exists but it is no longer a corporate entity called Colonial Village or connected with Mobil Land.
In addition to the monetary damages, Mobil Land agreed to ensure that all its ads comply with the law by showing "models of all races in the metropolitan area if models are used," according to the Fair Housing Council. At the time, Spann and the two fair housing organizations that filed the suit said the advertising was biased because it showed only white models and thus discouraged him from buying housing from the companies that advertised.
"I'm happy the case is finally settled," Spann said recently. "All my life I've been troubled by racially directed advertising," as reported in the June 10, Washington Post.
Berenbaum said the outcome of the long-running Mobil Land case could affect advertising practices across the country because the firm operates nationally, and the outcome might help educate companies everywhere about fair housing advertising law. When the cases were filed, they were among the first of their kind in the nation. He said the council will use its share of the award "to educate the public on the benefits of housing integration."
Mobil Land, said it will feature Black models in 33 percent of the company's newspaper, television and other advertising, reflecting the percentage of Blacks living in the Washington metropolitan area. Companies that have shown whites in their advertising were required to continue using human models, including Blacks, with the same frequency as in the year before April 1986, when the complaints were filed.

IN HAEC VERBA: Open Records Request re: VCB

Dear Messrs. McCormack, Wanchick and Hastings:




A. VCB has still not responded substantively to my May 20, 2013 request for its Antitrust and Civil Rights Compliance policies. Why not?



B. Articles 8, 9, 10 and 11 of VCB's February 2, 2010 contract with St. Johns County (SJC BCC Resolution 2010-22) require VCB's full compliance with Florida's Open Records laws, antitrust laws, civil rights laws and other federal state and local laws. Accordingly, please direct VCB, TDC and county officials to provide by E-mail or thumb drive, by close of business May 24, 2013:

1. Copies of all MMDY contracts for research, advertising, marketing and strategic advice;

2. Year-by-year total disbursements to MMDY and predecessors, and other contractors;

3. Any proof of competitive bidding for any MMDY or other contracts, or failing that, any legal determination of sole source status;

4. VCB and MMDY evaluations of Miami, African-American, youth and GLBT markets and why we're not advertising there.

5. MMDY draft and final presentation to May 14, 2013 WGV meeting where pricing was discussed (sorry for typo in earlier E-mail below -- meeting in quo was May 14th, not May 7th).

6. Compliance policies, including but not limited to those on Antitrust, Competitive Bidding and Civil Rights.

7. Pricing information shared and discussions about pricing at VCB meetings.

8. All EEOC forms EEO-1 or EEO-4 filed by VCB and MMDY.

9. All VCB documents responding to the 2012 and 2013 Fair Housing ordinances adopted by the Cities of St. Augustine and St. Augustine Beach, banning sexual orientation discrimination, e.g., any advice to VCB members or changes to VCB and member advertising and marketing materials.

10. All communications concerning or resulting from or related to any civil rights and antitrust concerns, including mine, including but not limited o communications between and among VCB, TDC, SJC, COSA, SAB,et al.



To help identify responsive documents, I am available to meet with you, or your respective staffers, at VCB's offices tomorrow morning -- this will help to assure compliance and avoid more delays.



Thank you.

With kindest regards, I am,

Sincerely yours,

Ed

Ed Slavin

Clean Up City of St. Augustine, Florida

www.cleanupcityofstaugustine.blogspot.com

Box 3084

St. Augustine, Florida 32085-3084

904-377-4998

IN HAEC VERBA: May 20, 2013 E-mail to City of St. Augustine, VCB and TDC leaders on Civil Rights, African-American, Hispanic, GLBT and Youth Tourism

http://www.waaytv.com/news/state/alabama-releases-civil-rights-tourism-app/article_f51a4214-a5ba-11e2-b303-0019bb30f31a.html



Dear Richard, Glenn John and Dana:

FYI re: an app for civil rights tourism in Alabama.

Under Governor Haley Barbour, Mississippi in 2006 mandated civil rights education K-12 and building a $50 million civil rights museum. St. Augustine is poised to get two at least civil rights museums. St. Augustine's civil rights and African-American heritage must be shared with the world. We must not hide our light under a bushel basket, or yield this civil rights tourism market to Mississippi and Alabama, or continue Apartheid-style marketing assumptions.

Do you agree that VCB needs to start running ads in Miami, in African-American and GLBT publications, and in diverse publications that will reach the youth market?

Cheers,

Ed Slavin

904-377-4998

IN HAEC VERBA: Letter to St. Johns County re: Civil Rights and Antitrust Compliance Issues at Visitors and Convention Bureau

Dear Messrs McCormack, Wanchick and Hastings:

Please investigate whether VCB is in material breach of its contract with SJCBCC by:



1. Discussing pricing in meetings, in violation of possible antitrust laws. On May 14, 2013 (corrected), at the SJC WGV Convention Center, MMGY Vice Chairman Peter Yesawich, Ph.D. urged VCB members to raise their prices. MMGY advises some 200 tourism enterprises in some ten countries. This advice to raise prices is, at best, unseemly. Dr. Yesawich's advice may expose VCB and SJC to antitrust liability concerns; moreover, it is wrong for government money to disbursed to a contractor (MMGY) whose Vice Chairman urges competitors to raise their prices. From this day forward, VCB and its contractor must obey antitrust laws. Competition is our economy's fundamental policy -- we don't need government-sponsored administered pricing (or price-fixing and monopolistic practices).



2. Violating the spirit and letter of St. Augustine and St. Augustine Beach Fair Housing laws re: sexual orientation and gender identity, e.g. by not advertising our non-discrimination policies and by not projecting a Gay-friendly image consistent with our cities' values, as declared unanimously by elected officials. Sadyly, VCB has a history of anti-Gay actions, as when its call center told a Gay man from Austin, Texas to go elsewhere for his vacation.
3. Violating federal Civil Rights laws and the Fair Housing Act by using nearly all-white figures in its marketing brochures, entirely leaving out Indians, with only a few happy African-American slaves and few Hispanics, during this, the 500th anniversary of Spanish Florida. There are some 199 images of white people, no Native Americans, four Hispanics and eleven African-Americans (mostly slaves) in the VCB's latest travel brochure on our area. Please review pertinent civil rights case law and advise VCB of its legal, moral and ethical duties.
4. Pointedly refusing to advertise in Miami, apparently based upon MMGY's prejudices. This is a poor reflection on our County's commitment to diversity. In targetting tourists to recruit, MMGY staffer Cindy Muretta refused to say why in public, but she earlier said that marketing is a question of "who you want to invite to your party." We don't need those decisions contaminated by secrecy and bigotry -- it makes us look bad.
5. Targeting only the richest 50% of Americans, when we average 40% vacancy rates in local lodging. We are all God's children, and we don't need MMGY to tell us to "redline" tourists who are not high-income.
6. Ignoring African-American, Native American, Hispanic, GLBT and youth markets, based on shallow research and superficial assumptions by MMGY, the longtime consultant.
7. Contracting with MMGY, the largest international travel consulting firm, which has potential conflicts of interest, including giving advice to Disney. Please obtain a complete MMGY client list and perform suitable conflicts checks. Please see that future contracts have full competitive bidding and transparency, and no conflicts of interest.
8. Not focusing advertising on our City's 450th commemoration heritage tourism goals, e.g., increasng African-American and Hispanic tourism, especially from Miami. Instead of advertising in Miami, money is being spent recruiting tourists from The Villages, Savannah and Augusta.
9. Wasting bed tax money on dubious, high-priced consulting contracts, e.g., MMGY. How much money has MMGY ever received over the years, including commissions?
10. Not complying promptly with legal and contractual requirements to respond to public record requests -- my May 20, 2013 request to VCB for copies of VCB's Antitrust and Civil Rights compliance policies have not yet yielded one (1) VCB document -- not even a cogent or coherent answer as to whether VCB even has any compliance policies. Does it?
This multi-milllion dollar government contractor operation needs to have its consciousness raised, and quickly. Our 450th and 500th commemorations are in progress, and VCB is not advertising in Miami due to some horribly bad advice from MMGY -- whatever basis MMGY has to give such advice must be shared with the public now. Our City leaders were not aware that VCB was not advertising in Miami -- this shows a level of secrecy that requires an agonizing reappraisal of the nature, structure and performance of VCB and whether it should have another contract (and whether MMGY should have another contract).
I look forward to talking and meeting with you, and with the BCC and two City Commissions on these issues in contemplation of whether VCB's and MMGY's contracts should be renewed later this year, and if so, under what terms to protect the public interest, especially in diversity, civil rights and antitrust compliance. See my blog post at www.cleanupcityofstaugustine.blogspot.com


Thank you.

With kindest regards, I am,

Sincerely yours,

Ed Slavin
Clean Up City of St. Augustine, Florida
www.cleanupcityofstaugustine.blogspot.com
Box 3084
St. Augustine, Florida 32085-3084
904-377-4998

VCB Hears Economy Will Get Boost With St. Augustine National Historical Park and National Seashore -- Record Did Not Report It -- Miamians Among People VCB NOt Advertising To for 500th, 450th

MMGY's Global Vice Chairman, DR. PETER YESAWICH, Ph.D.. told VCB at WGV May 14th that enactment of the St. Augustine National Historical Park and National Seashore will have, “no question, a positive effect”on our local economy. www.staugustgreen.com

Ph.D. Peter Yesawich is an international travel expert working for the local Visitor and Convention Bureau, MMDY Global Executive Vice Chairman told 100 local tourism experts May 7th that the St. Augustine National Historical Park and National Seashore will have, “no question, a positive effect”on our local economy.

Although the St. Augustine Record (SAR) had an editorial (below) about the gathering where Yesawich spoke, it omitted certain facts – such as Dr. Yesawich's candid support for the St. Augustine National Historical Park and National Seashore.
SAR is no longer informing the public. Government meetings and agencies are left uncovered for weeks at a time. Reader letters are unpublished. Scandals are not uncovered. Questions are not asked.
Thus, SAR readers who were not in the room did not learn that the VCB's consultants support the National Historical Park and National Seashore.
They also did not learn that VCB's consultant may lack commitment current knowledge and interest in marketing St. Augustine for what it is rapidly becoming – as a diverse, cool, hip, place. VCB's longtime consultants are focused on older rich white guys who play golf – and advising motels and tourist attractions to raise their prices, which could run afoul of federal antitrust laws.
In a surprising admission last week, MMDY Global consultant Cindy Muretta, working for the county's Visitor and Convention Bureau (VCB) publicly admitted May 14th that there is no St. Augustine tourism advertising in Miami – even though our City of St. Augustine's strategic plan for our 450th anniversary commemoration places a high priority on recruiting Hispanic tourists from Miami.
MMGY's website shows no persons of color among its 18-person leadership. MMGY is the largest travel consulting group in the world, headquartered in Missouri and Florida.
MMGY failing to include African-American and Civil Rights tourism, in its $300,000 draft 2009 Destination Master Plan.
MMGY works for Disney and 200 other large travel organizations throughout the world.
Is it a conflict of interest for St. Augustine's visitor recruitment to be run by the firm that advises Walt Disney? Is that what St. Augustine should aspire to become – more Disney-fied than now? MMGY's initial tourism master plan had visions of a waterslide, as if history and nature were not enough of “product.”
Enough.
This overlapping marketing advice is not in the best interest of our “brand,” which hopelessly provincial, MMGY has repeatedly lacked understanding and appreciation. Plainly MMDY does not have St. Augustine's cultural diversity at heart. Its “leaders” are secretive, and avoid questions.
MMGY Global's Cyndy Murrieta (MMGY's Media Group Director) told the assembled tourism “industry” personnel that advertising is a question of “who do you want to invite to your party.” MMGY's Media Group Director Cyndy Murieta lauded spending tax money on recruiting “affluent” tourists from Atlanta, Georgia; Orlando, The Villages in Florida and Augusta and Savannah in Georgia – but not Miami.
Instead, VCB is actually spending bed tax money advertising for St. Augustine in bankrupt Reader's Digest, in Better Homes and Gardens! I could not believe my ears (and eyes). Who knew!
So I asked MMGY Media Group Director Cyndy Murrieta why VCB was not advertising in Miami. MMGY's Murietta condescendingly told me to ask her after the meeting. I requested a public answer, then and there. Instead, MMGY's Murrietta, VCB's consultant then said “I'm being heckled.” How gauche. We paid for her microphone, but she refused to emit an answer.

              CYNDY MURRIETA, MMGY MEDIA GROUP DIRECTOR
Who are these lugubrious goobers? The Visitor and Convention Bureau for St. Augustine, Ponte Vedra and the Beaches receives some $4.6 million annually from bed tax revenue on people staying at hotels, motels, Bed and Breakfasts and guest houses. In turn, they hire MMDY and spend millions on advertising.
Not one New York Times Travel Section article focused on St. Augustine has appeared since September 5, 2003 (see it on the bulletin board at the Bunnery cafe downtown – it is yellow).
Meanwhile, MMGY brags of getting TV news stories on Lee County, Florida, but can't seem to bring about a New York Times Travel Section after years of working for us.
Not one penny of that $4.6 million annual VCB bed tax budget money is being used for advertising in Miami, our City's core market for the 450th and 500th commemorations. “That's crazy,” opined one City official, who was unaware that VCB is not advertising in Miami.
It's our money – VCB has a contract with our County Commissioners. I have asked for a copy, along with a copy of VCB's antitrust and civil rights compliance policies.  It appears VCB may be in material breach of its contract.  See correspondence, above.
It was appalling to hear the Vice Chairman of MMGY, Dr. Peter Yesawich, write off the lower 50% of American income earners while urging business owners to raise their prices – inviting possible antitrust violations while speaking in a government building – St. Johns County's $16.9 million World Golf County Convention Center, in the presence of city and county officials, hearing the invitation to raise prices without anyone offering any dissenting view (or antitrust law advice)
MMGY and VCB potentially run afoul of civil rights laws by publishing expensive Apartheid-style travel guides, with 199 identifiable white people and four (4) identifiable Hispanic people (one is Ponce de Leon on the cover). There are zero Native American Indians, There are only eleven (11) African-Americans, most of whom appear to be happy slaves. Fair Housing and Civil Rights cases forbid marketing materials that don't show African-Americans and other minorities. Yet local developers in St. Johns County were guilty of that for years. So is our VCB. This is Jim Crow 1950s marketing, and it is not working. Despite always-rosy projections, VCB is not with the program. St. Augustine's future lies in historic and environmental tourism – VCB is still caught up in past mistakes
That was shown by the lack of interest in GLBT tourism; during Q&A, Peter Yesawich told me it was 5% of the national tourism market (and “more of the spend',” using a verb as a noun) But Yesawich wondered if GLBT marketing might turn off other tourists. He offered no data. Unknown to MMGY, we have made great strides in local GLBT-friendly housing and employment nondiscrimination laws in St. Augustine and St. Augustine Beach (and Sheriff David Shoar, and Anastasia Mosquito Control District of St. Johns County, the first in our county, in 2009). GLBT tourism marketing would differentiate our “product” from our bigoted northern neighbor, Jacksonville, formerly known as Cowford. This is why Mumford & Sons chose St. Augustine over bigoted Jacksonville or other places.
MMGY is not selling our strengths because it does not appreciate them. In fact, entirely left out are the fact that this is the first cultural melting pot in American, one that had on Day One (September 8, 1565) the first freed and African-American, Catholic and Jewish Americans, 42 years before Jamestown. Left out are the courage of the Minor can people, fleeing British oppression in New Smyrna Beach indigo plantations. Not even Minorcans get respect from MMDY.
It's time for a change. VCB needs to listen to the City of St. Augustine, and stop messing around with our City's 450th ad 50th celebration. Leaving Miami out of advertising and advising people to raise their prices is unseemly. Enough.
St. Augustine is not "an industry" and not "a product." It is about authentic history and real nature -- which the St. Augustine National Historical Park and National Seashore will help us showcase to the world!
www.staugustgreen.com
Yes we can!

St. Augustine Record editorial on growth of civil rights tourism with Gullah Geechee Cultural Heritage Corridor status from Department of the Interior and National Park Service

Sunday, May 19, 2013
Our view: Our home on many travel bucket lists
Florida’s Historic Coast got a double-dose of good news this past week. On Wednesday, we learned the Department of the Interior had given final approval to the Gullah Geechee Cultural Heritage Corridor Management Plan. As reported in The Record, the 8-million-acre corridor stretches in a long arc from Wilmington, N.C., to St. Augustine and honors those in the African-American community who made their way to Florida with an ideal and a promise of freedom.
In an editorial published in 2009, we noted than many people share the vision of increasing African-American tourism in St. Johns County. We suggested being a stop on the Gullah Geechee corridor is a step in that direction. In August of last year we urged our readers to express support for the management plan to the Corridor Commission. Previously the plan had received the support of both the St. Johns County and the St. Augustine City commissions.
At the same time the good news about the Gullah Geechee Corridor was spreading, the 4th Annual State of the Tourism Industry summit was convening in the conference center at World Golf Village. It brought together about 200 leaders involved with tourism in St. Johns County, including those associated with attractions, lodging facilities and related enterprises.
Peter Yesawich, vice president of MMGY Global, gave a keynote presentation that provided a profile of the American traveler. MMGY Global touts itself at the world’s largest and most integrated travel marketing firm. Yesawich reported travelers are more confident than they have been in the last four years. He said 28 percent of travelers earning more than $50,000 annually, who plan to travel at least once, want to visit St. Augustine during the next two years. This was the same percentage received by larger destinations, such as West Palm Beach and Phoenix/Scottsdale.
But even more telling was another statistic that paints an interesting picture of travelers who hope to visit St. Augustine. People were asked if they would be interested in attending historical events when traveling. Fifty percent of those who would like to visit St. Augustine responded positively while only about a third of all people queried expressed the same interest.
Richard Goldman, executive director of the Visitors and Convention Bureau (VCB), told The Record they are seeing great traction for the work they have done in bringing the celebration of Florida’s 500th anniversary to the rest of the world. He noted the comparable value of publicity received during the past seven months was estimated at $168 million. For those who like to see a positive return on investment, this figure represents approximately 54 times the amount of the VCB’s annual budget.
Goldman said he was a little surprised and very pleased when he learned how many tourists know about Florida’s Historic Coast and want to visit here.
We could think of scores of reasons why folks would want to visit our area and with the adoption of the Gullah Geechee Management Plan, our list just grew by one.