FINANCE AND ADMINISTRATIVE SERVICES DEPARTMENT PURCHASING DIVISION 115 S. Andrews Avenue, Room 212 • Fort Lauderdale, Florida 33301 • 954-357-6066 • FAX 954-357-8535
DATE: November 25, 2019
Digitally signed by TO: Evaluation Committee Members BRENDA BRENDA BILLINGSLEY BILLINGSLEY Date: 2019.11.27 THRU: Brenda J. Billingsley, Director of Purchasing 15:39:55 -05'00' Digitally signed by CHRISTINE CHRISTINE CALHOUN Date: 2019.11.27 FROM: Christine Calhoun, Purchasing Manager CALHOUN 15:36:13 -05'00'
SUBJECT: Recommendation Memorandum RFP No. GEN2119422P1, Communication and Marketing Services Ten (10) Submittals
REFERENCE: (a) Procurement Code Subsection 21.83.d (b) Procurement Code Subsection 21.30.f.5
In accordance with reference (a), the Director of Purchasing reviews all submittals for responsiveness and recommends to the Evaluation Committee her findings, which the Evaluation Committee may accept or arrive at a different conclusion. Pursuant to Procurement Code Subsection 21.8.b.65, a responsive proposer means a person who has submitted a proposal which conforms in all material respects to a solicitation.
The Request for Proposal (RFP) GEN2119422P1, Communication and Marketing Services included three (3) responsiveness requirements, including Lobbyist Registration Certification Form, acknowledgement of “must” addenda, and Domestic Partnership Certification Form. Ten (10) proposers out of ten (10) are recommended to be evaluated as responsive to all responsiveness requirements.
In accordance with reference (b), the Evaluation Committee determines proposers’ responsibility. Pursuant to Procurement Code Subsection 21.8.b.64, a responsible firm is one that has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance. To assist the Evaluation Committee in this determination, information regarding Office of Economic and Small Business Development (OESBD) participation goals compliance, Maximum Billing Rate Sheet, the “material” litigation history disclosure, financial information, State of Florida authority to conduct business, affiliated entities, proof of insurance responsibility requirements are provided. Five (5) proposers out of ten (10) proposers are recommended to be found compliant with all responsibility requirements.
¾ ADG Strategy Group, Inc. is recommended to be found non-responsible to the OESBD County Business Enterprise (CBE) participation goal requirement.
¾ ANCO Media Group LLC, D/B/A Revolution 93.5 FM WZFL is recommended to be found non- responsible to the OESBD County Business Enterprise (CBE) participation goal requirement and the Maximum Billing Rate Sheet requirement for Category 2 and 4.
Broward County Board of County Commissioners Mark D. Bogen • Lamar P. Fisher • Beam Furr • Steve Geller • Dale V.C. Holness • Nan H. Rich • Tim Ryan • Barbara Sharief • Michael Udine www.broward.org
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¾ Barrington Management Artist Group, Inc. is recommended to be found non-responsible to the OESBD County Business Enterprise (CBE) participation goal requirement.
¾ Full Moon Creative, LLC is recommended to be found non-responsible to the financial information requirement.
¾ VGreen Enterprises LLC is recommended to be found non-responsible to the financial information requirement and the proof of insurance requirement.
This solicitation has a designated County Business Enterprise (CBE) participation goal of 30%.
A draft Director of Purchasing’s Recommendation Memorandum and the four (4) supporting documents from the Office of Economic and Small Business Development, the Finance and Administrative Services Department, the Office of County Attorney, and the Risk Management Division were emailed to proposers with a request that, if a proposer desires to clarify any information provided in their response, they should do so in writing. All written explanations received were subsequently reviewed by staff, as applicable.
After careful review of the information provided and the solicitation’s requirements, the following recommendations are provided for consideration and final determination by the Evaluation Committee:
A. RESPONSIVENESS RECOMMENDATION Recommendations regarding the responsiveness of proposers to the requirements are based on the solicitation’s criteria:
1. Lobbyist Registration - Certification A vendor who has retained a lobbyist(s) to lobby in connection with a competitive solicitation shall be deemed non-responsive unless the firm, in responding to the competitive solicitation, certifies that each lobbyist retained has timely filed the registration or amended registration required under Section 1-262, Broward County Code of Ordinances.
A Lobbyist Registration Certification Form must be completed and returned upon request by the County if not included in the submittal.
Name of Firm Recommendation Remarks Adept Public Relations, LLC Responsive Retained* ADG Strategy Group, Inc. Responsive Not Retained ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Responsive Not Retained Barrington Management Artist Group, Inc. Responsive Retained** Conceptual Communications, LLC Responsive Not Retained Cornerstone Solutions Florida, LLC Responsive Not Retained Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. Responsive Not Retained Full Moon Creative LLC Responsive Not Retained Metropolitan Public Strategies, Inc. Responsive Not Retained VGreen Enterprises LLC Responsive Not Retained
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Additional Information
*Adept Public Relations, LLC – Adept Public Relations, LLC has retained Dana Pollitt from Dana Pollitt, P.A. and Stephanie Grutman Zauder of Ballard Partners.
**Barrington Management Artist Group, Inc. - Barrington Management Artist Group, Inc. has retained Tyrone Barrington of Barrington Management Artist Group.
2. “Must” Addenda There were no “must” Addendum.
3. Domestic Partnership Act The Broward County Domestic Partnership Act (Section 16½-157, Broward County Code of Ordinances) requires the vendor to certify that it currently complies or will comply with the Domestic Partnership Act requirements, by providing benefits to the employees’ domestic partners on the same basis as it provides benefits to employees’ spouses, for projects with an initial contract term of more than $100,000.
Name of Firm Recommendation Remarks Adept Public Relations, LLC Responsive Complies ADG Strategy Group, Inc. Responsive Complies ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Responsive Complies Barrington Management Artist Group, Inc. Responsive Will Comply Conceptual Communications, LLC Responsive Complies Cornerstone Solutions Florida, LLC Responsive Complies Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. Responsive Will Comply Full Moon Creative LLC Responsive Will Comply Metropolitan Public Strategies, Inc. Responsive Complies VGreen Enterprises LLC Responsive Will Comply
B. RESPONSIBILITY INFORMATION
The information provided below is intended to inform the Evaluation Committee regarding each proposer’s responsibility. After careful review of the information provided and the solicitation’s requirements, the following information is provided for consideration and final determination by the Evaluation Committee:
1. Office of Economic and Small Business Development Program The Broward County Business Opportunity Act of 2012 and the Disadvantaged Business Enterprise Program Title 49 Code of Federal Regulations Part 26 establish the County’s policies for participation by Small Business Enterprises (SBE), County Business Enterprises (CBE), and Federal Disadvantaged Business Enterprises (DBE’s) in County contracts.
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In accordance with the above, the CBE goal participation for this contract is 30%
Name of Firm Responsibility Remarks Information Complies 75% CBE goal Adept Public Relations, LLC participation Does not Non-CBE, 0% CBE ADG Strategy Group, Inc. comply subcontractor goal participation
ANCO Media Group LLC Does not Non-CBE, 0% CBE D/B/A Revolution 93.5 FM WZFL comply subcontractor goal participation Does not Non-CBE, 0% CBE Barrington Management Artist Group, Inc. comply subcontractor goal participation Complies 100% CBE goal Conceptual Communications, LLC participation Complies 30% CBE goal Cornerstone Solutions Florida, LLC participation
Cunningham Communications Consulting Company Complies 30% CBE goal D/B/A The Brand Advocates, Inc. participation Complies 80% CBE goal Full Moon Creative LLC participation Complies 30% CBE goal Metropolitan Public Strategies, Inc. participation Complies 100% CBE goal VGreen Enterprises LLC participation
Refer to the OESBD CBE Evaluation Memorandum for any reportable conditions brought to the attention of the Evaluation Committee.
In response to the Purchasing Director’s Draft Memorandum, to which the vendor can respond within 48 hours to any comments or deficiencies noted in the Purchasing Director’s Draft Memorandum, the following has been provided: x ADG Strategy Group, Inc. provided a response to the OESBD CBE Evaluation Memorandum on November 21, 2019. x ANCO Media Group LLC, D/B/A Revolution 93.5 FM WZFL provided a response to the OESBD CBE Evaluation Memorandum on November 21, 2019. x Barrington Management Artist Group, Inc. provided a response to the OESBD CBE Evaluation Memorandum on November 20, 2019.
2. Maximum Billing Rate Sheet The solicitation required Vendors to complete a Maximum Billing Rate sheet if proposing for Items (Category) No. 2 or 4 in the Item Response Form (BidSync) in order to be considered a responsible vendor for this requirement for Category(s) 2 or 4. A Maximum Billing Rate sheet was not required for proposals for Items (Category) No. 1 and 3. The firms that proposed for Category 2 or 4 but, did not comply with the Maximum Billing Rate sheet requirement are listed below.
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Name of Firm Proposed Responsibility Category(s) Information Remarks 1, 3, 4 Complies Provided Maximum Billing Adept Public Relations, LLC Rate sheet for Category 4 1, 2, 3, 4 Complies Provided Maximum Billing ADG Strategy Group, Inc. Rate sheet for both Category 2 and 4
ANCO Media Group LLC 1, 2, 3, 4 Does not comply Did not provide Maximum D/B/A Revolution 93.5 FM WZFL for Category 2 and Billing Rate sheet for either 4 Category 2 or 4 Barrington Management Artist 4 Complies Provided Maximum Billing Group, Inc. Rate sheet for Category 4 1, 2, 3, 4 Complies Provided Maximum Billing Conceptual Communications, LLC Rate sheet for both Category 2 and 4 1, 2, 3, 4 Complies Provided Maximum Billing Cornerstone Solutions Florida, LLC Rate sheet for both Category 2 and 4
Cunningham Communications 1, 3 N/A Not required to provide Consulting Company Maximum Billing Rate sheet D/B/A The Brand Advocates, Inc. for Category(s) 1 or 3 3, 4 Complies Provided Maximum Billing Full Moon Creative LLC Rate sheet for Category 4 1, 2, 3, 4 Complies Provided Maximum Billing Metropolitan Public Strategies, Inc. Rate sheet for both Category 2 and 4 4 Complies Provided Maximum Billing VGreen Enterprises LLC Rate sheet for Category 4
In response to the Purchasing Director’s Draft Memorandum, to which the vendor can respond within 48 hours to any comments or deficiencies noted in the Purchasing Director’s Draft Memorandum, the following has been provided: x ANCO Media Group LLC, D/B/A Revolution 93.5 FM WZFL provided a response to the Maximum Billing Rate Sheet deficiency on November 21, 2019.
3. Disclosure of Litigation History The solicitation requests firms to disclose all "material" cases filed, pending, or resolved during the last three (3) years prior to the solicitation response due date, whether such cases were brought by or against the vendor, any parent or subsidiary of the vendor, or any predecessor organization. It is the responsibility of each proposer to identify and disclose to the County all “material” cases. “Material” cases include cases involving work similar to the scope of work in this solicitation, professional negligence, malpractice, default, termination, suspension, poor performance, bankruptcy and business-related criminal offenses. “Material” cases do not include cases that involve garnishment, auto negligence, personal injury, workers' compensation, foreclosure or a proof of claim filed by the vendor.
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Name of Firm Responsibility Remarks Information No Disclosed Cases No litigation cases Adept Public Relations, LLC *(See Below) with Broward County No Disclosed Cases No litigation cases ADG Strategy Group, Inc. with Broward County
ANCO Media Group LLC No Disclosed Cases No litigation cases D/B/A Revolution 93.5 FM WZFL with Broward County No Disclosed Cases No litigation cases Barrington Management Artist Group, Inc. with Broward County No Disclosed Cases No litigation cases Conceptual Communications, LLC with Broward County No Disclosed Cases No litigation cases Cornerstone Solutions Florida, LLC * ** (See Below) with Broward County
Cunningham Communications Consulting Company No Disclosed Cases No litigation cases D/B/A The Brand Advocates, Inc. with Broward County No Disclosed Cases No litigation cases Full Moon Creative LLC with Broward County No Disclosed Cases No litigation cases Metropolitan Public Strategies, Inc. with Broward County No Disclosed Cases No litigation cases VGreen Enterprises LLC with Broward County In response to the Purchasing Director’s Draft Memorandum, to which the vendor can respond within 48 hours to any comments or deficiencies noted in the Purchasing Director’s Draft Memorandum, the following has been provided: x *On November 21, 2019, Adept Public Relations, LLC (Adept) responded to the Draft Memorandum by indicating another vendor, Cornerstone Solutions Florida, LLC., failed to disclose material case. (See attached email correspondence dated November 21, 2019) x ** On November 27, 2019, Cornerstone Solutions Florida, LLC responded to Adept’s allegation of failure to disclose material case. (See attached email correspondence dated November 27, 2019) x The Office of the County Attorney reviewed the issue raised by Adept regarding Cornerstone’s alleged failure to disclose material case. (See attached memorandum dated November 27, 2019)
4. Disclosure of Financial Information The information provided is based on a review by the Finance and Administrative Services Department. Each Vendor shall submit its most recent two (2) years of financial statements for review. The financial statements are not required to be audited financial statements. The annual financial statements shall be in the form of:
i. Balance sheets, income statements and annual reports; or ii. Tax returns; or iii. SEC filings
The disclosure of financial information by proposers is a matter of responsibility.
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Remarks Responsibility (Current Name of Firm Information Ratio) Compliant See memo Adept Public Relations, LLC Provided 2017 Financials Provided 2019 Financials Compliant See memo Provided 2018 Financials ADG Strategy Group, Inc. Provided 2019 Financials (partial) Compliant ANCO Media Group LLC Provided 2017 Financials See memo D/B/A Revolution 93.5 FM WZFL Provided 2018 Financials Compliant See memo Barrington Management Artist Group, Inc. Provided 2017 Financials Provided 2018 Financials Compliant See memo Conceptual Communications, LLC Provided 2017 Financials Provided 2018 Financials Compliant See memo Cornerstone Solutions Florida, LLC Provided 2017 Financials Provided 2018 Financials
Cunningham Communications Consulting Company Compliant See memo D/B/A The Brand Advocates, Inc. Provided 2016 Financials Provided 2017 Financials Non-compliant See memo Full Moon Creative LLC
Compliant See memo Metropolitan Public Strategies, Inc. Provided 2017 Financials Provided 2018 Financials VGreen Enterprises LLC Non-compliant See memo
Refer to the Finance and Administrative Services Department Financial Statements Review Memorandum for any reportable conditions brought to the attention of the Evaluation Committee.
In response to the Purchasing Director’s Draft Memorandum, to which the vendor can respond within 48 hours to any comments or deficiencies noted in the Purchasing Director’s Draft Memorandum, the following has been provided: x Full Moon Creative LLC provided a response to the Financial Statements Review on November 20, 2019. x VGreen Enterprises LLC did not provide a response to the Financial Statements Review.
5. Authority to Conduct Business in Florida A Florida corporation or partnership is required to provide evidence with its response that the firm is authorized to transact business in Florida and is in good standing with the Florida Department of State. If not with its response, such evidence must be submitted to the County upon request by the County.
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Responsibility Name of Firm Information Remarks Adept Public Relations, LLC Provided Authorized/Good Standing ADG Strategy Group, Inc. Provided Authorized/Good Standing ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Provided Authorized/Good Standing Barrington Management Artist Group, Inc. Provided Authorized/Good Standing Conceptual Communications, LLC Provided Authorized/Good Standing Cornerstone Solutions Florida, LLC Provided Authorized/Good Standing Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. Provided Authorized/Good Standing Full Moon Creative LLC Provided Authorized/Good Standing Metropolitan Public Strategies, Inc. Provided Authorized/Good Standing VGreen Enterprises LLC Provided Authorized/Good Standing
6. Affiliated Entities of the Principal(s) All Vendors are required to disclose the names and addresses of “affiliated entities” of the Vendor’s principal(s) over the last five (5) years (from the solicitation opening deadline) that have acted as a prime Vendor with the County. “Affiliated entities” of the principal(s) are those entities related to the Vendor by the sharing of stock or other means of control, including but not limited to a subsidiary, parent or sibling entity.
An Affiliated Entities Certification Form was included in the solicitation and must be completed and returned upon request by the County, if not included in the original response.
Name of Firm Responsibility Remarks Information Adept Public Relations, LLC Provided No Affiliates ADG Strategy Group, Inc. Provided No Affiliates ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Provided No Affiliates Barrington Management Artist Group, Inc. Provided No Affiliates Conceptual Communications, LLC Provided No Affiliates Cornerstone Solutions Florida, LLC Provided No Affiliates Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. Provided No Affiliates Full Moon Creative LLC Provided No Affiliates Metropolitan Public Strategies, Inc. Provided No Affiliates VGreen Enterprises LLC Provided No Affiliates
7. Insurance Requirements The solicitation indicated the insurance requirements deemed necessary for this project. It is not necessary to have this level of insurance in effect at the time of submittal, but it is necessary to submit certificates indicating that the firm currently carries the insurance, or the vendor needs to submit a letter from the carrier indicating upgrade availability.
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Name of Firm Responsibility Remarks Information Adept Public Relations, LLC Complies Provided ADG Strategy Group, Inc. Complies Provided ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Complies Provided Barrington Management Artist Group, Inc. Complies Provided Conceptual Communications, LLC Complies Provided Cornerstone Solutions Florida, LLC Complies Provided Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. Complies Provided Full Moon Creative LLC Complies Provided Metropolitan Public Strategies, Inc. Complies Provided VGreen Enterprises LLC Does not Comply Did not provide
Refer to the Risk Management Insurance Compliance Memorandum for any reportable conditions brought to the attention of the Evaluation Committee.
In response to the Purchasing Director’s Draft Memorandum, to which the vendor can respond within 48 hours to any comments or deficiencies noted in the Purchasing Director’s Draft Memorandum, the following has been provided: x VGreen Enterprises LLC did not provide a response to the Insurance Compliance Memorandum.
C. COUNTY STANDARD TERMS AND CONDITIONS INFORMATION: The acceptance of or any exceptions taken to the terms and conditions of the County’s Agreement shall be considered a part of a Vendor’s submittal and will be considered by the Evaluation Committee. The applicable Agreement terms and conditions for this solicitation were indicated in the Special Instructions to Vendors. Vendors were required to review the applicable terms and conditions and submit the Agreement Exception Form. If the Agreement Exception Form is not provided with the submittal, it shall be deemed an affirmation by the Vendor that it accepts the Agreement terms and conditions as disclosed in the solicitation. If exceptions are taken, the Vendor must specifically identify each term and condition with which it is taking an exception.
Name of Firm Agree Exceptions Adept Public Relations, LLC Yes None ADG Strategy Group, Inc. Yes None ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Yes None Barrington Management Artist Group, Inc. Yes None Conceptual Communications, LLC Yes None Cornerstone Solutions Florida, LLC Yes None Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. Yes None Full Moon Creative LLC Yes None Metropolitan Public Strategies, Inc. Yes None VGreen Enterprises LLC Yes None
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D. REFERENCES The solicitation’s Evaluation Criteria – Project Specific Criteria, for Category(s) 1, 2, 3 and 4, Pages 30, 32, 34, and 36 - Question 3, Past Performance, request that completed references be provided for previous experience and projects. Attached are the references as verified by County staff.
E. PERFORMANCE EVALUATIONS The Broward County Purchasing Division Contracts Central indicates evaluation scores for the proposing firms previously awarded contracts. Completed performance evaluations may be provided upon request.
The individual evaluation scores for the proposing firms are as follows:
Name of Firm Scores Provided Adept Public Relations, LLC None ADG Strategy Group, Inc. None ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL None Barrington Management Artist Group, Inc. None Conceptual Communications, LLC None Cornerstone Solutions Florida, LLC None Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. None Full Moon Creative LLC None Metropolitan Public Strategies, Inc. None VGreen Enterprises LLC None None of the proposing firms have a Contracts Central performance evaluation history.
F. CONE OF SILENCE VIOLATIONS The Cone of Silence for this procurement has been in effect since August 21, 2019 which prohibits potential vendors from discussing this solicitation with the Evaluation Committee, the County Administrator, Deputy County Administrator, Assistant County Administrator, Assistants to the County Administrator, their respective support staff, and any other person authorized to evaluate or recommend selection in this procurement process.
Upon the first meeting of the Evaluation Committee, the Cone of Silence expands to also include County Commissioners and their staff. Potential vendors and their representatives are substantially restricted from communicating with County Commissioners and their staff regarding this procurement as stated in the Cone of Silence Ordinance.
After application of the Cone of Silence, inquiries regarding this solicitation should be directed to the Director of Purchasing or designee. The Cone of Silence terminates when the County Commission or other awarding authority takes action which ends the solicitation. Vendors are required to certify that they have read, understand and will comply with the Cone of Silence Ordinance, Section 1-266, Broward County Code of Ordinances.
The following is a report of the proposers’ Cone of Silence violations:
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Name of Firm Remarks Violations Adept Public Relations, LLC Will Comply None ADG Strategy Group, Inc. Will Comply None ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Will Comply None Barrington Management Artist Group, Inc. Will Comply None Conceptual Communications, LLC Will Comply None Cornerstone Solutions Florida, LLC Will Comply None Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. Will Comply None Full Moon Creative LLC Will Comply None Metropolitan Public Strategies, Inc. Will Comply None VGreen Enterprises LLC Will Comply None
G. VOLUME OF PREVIOUS WORK - EVALUATION CRITERIA AND TIE BREAK CRITERIA The solicitation states that a number of points will be allocated for volume of previous work of the firm for the past five (5) years. The volume of work for each of the proposing firms is as follows:
Name of Firm Proposer Reported County Reported Adept Public Relations, LLC $0.00 $0.00 ADG Strategy Group, Inc. $0.00 $0.00 ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL $0.00 $0.00 Barrington Management Artist Group, Inc. $0.00 $0.00 Conceptual Communications, LLC $0.00 $0.00 Cornerstone Solutions Florida, LLC $25,000.00 $25,000.00 Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. $0.00 $0.00 Full Moon Creative LLC $0.00 $0.00 Metropolitan Public Strategies, Inc. $0.00 $0.00 VGreen Enterprises LLC $0.00 $0.00
H. PRINCIPAL BUSINESS LOCATION The solicitation states that a number of points will be allocated for location of the firm. The Vendor’s principal address in Broward County shall be the Vendor’s “Principal Address” as indicated with the Florida Department of State Division of Corporations, for at least six (6) months prior to the solicitation’s due date. A proposer with a principal business location within Broward County will receive five points. A proposer not having its principal business location within Broward County will receive zero points. The results are as follows:
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Name of Firm Proposer Attested Nerve Principal Address as Points Center verified In SunBiz Allocated 5300 Powerline Road, 5300 Powerline Road, Adept Public Relations, Suite 207 Suite 207 5 Points LLC Fort Lauderdale, FL 33309 Fort Lauderdale, FL 33309 ADG Strategy Group, 10776 Charleston Place 10776 Charleston Place Inc. Cooper City, FL 33026 Cooper City, FL 33026 5 Points ANCO Media Group 250 NW 23rd Street, Unit 250 NW 23rd Street, 204 LLC 204 Miami FL 33127 0 Points D/B/A Revolution 93.5 Miami FL 33127 FM WZFL Barrington 1200 West Avenue, Unit 1200 West Avenue, # 514 Management Artist 514 Miami Beach, FL. 33139 0 Points Group, Inc. Miami Beach, FL. 33139 901 Progresso Drive, Suite 901 Progresso Drive, 210 Conceptual 210 Fort Lauderdale, FL 33304 5 Points Communications, LLC Fort Lauderdale, FL 33304 9200 Belvedere Road, 9200 Belvedere Road, Cornerstone Solutions Suite 202 Suite 202 0 Points Florida, LLC West Palm Beach, FL West Palm Beach, FL 33411 33411 Cunningham 110 East Broward 1951 NW 7 Avenue, Communications Boulevard, Suite 1700 Suite 3300 0 Points * Consulting Company Fort Lauderdale, FL 33301 Miami, FL 33136 D/B/A The Brand Advocates, Inc. 10001 NW 50th Street, 10001 NW 50th Street, Full Moon Creative Suite 202 Suite 202 5 Points LLC Sunrise, FL 33351 Sunrise, FL 33351 135 E 57th Street, 14th 1677 Lexington Avenue, Metropolitan Public Floor 2nd Floor 0 Points ** Strategies, Inc. New York, NY 10022 New York, NY 10029 VGreen Enterprises 7901 Orleans Street 7901 Orleans Street LLC Miramar, FL 33023 Miramar, FL 33023 5 Points * SunBiz change of address on May 22, 2018 to 1951 NW 7 Avenue, Suite 300, Miami, FL 33136 ** SunBiz change of address on February 15, 2019 to 1677 Lexington Avenue, 2nd Floor, New York, NY 10029
I. LOCAL PREFERENCE A vendor is eligible to be considered a local business for Local Preference purposes if it has a physical business address located within the limits of Broward County. The vendor must provide a valid business tax receipt issued by Broward County at least one (1) year prior to solicitation opening.
The results are as follows:
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Broward County Tax Name of Firm Eligibility Receipt Eligible Verified; Valid more than Adept Public Relations, LLC one year prior to solicitation opening Eligible Verified; Valid more than ADG Strategy Group, Inc. one year prior to solicitation opening ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Not Eligible No valid tax receipt Barrington Management Artist Group, Not Eligible No valid tax receipt Inc. Eligible Verified; Valid more than Conceptual Communications, LLC one year prior to solicitation opening Cornerstone Solutions Florida, LLC Not Eligible No valid tax receipt Cunningham Communications Consulting Company Not Eligible No valid tax receipt D/B/A The Brand Advocates, Inc. Eligible Verified; Valid more than Full Moon Creative LLC one year prior to solicitation opening Not Eligible * Verified; Not valid more Metropolitan Public Strategies, Inc. than one year prior to solicitation opening Eligible Verified; Valid more than VGreen Enterprises LLC one year prior to solicitation opening * Business Tax Receipt indicates business start date of February 05, 2019. The solicitation opening was September 20, 2019.
J. LOCATION - TIE BREAKER A Vendor located within Broward County is eligible for the Location Tie Breaker. The County requires a copy of the Broward County Business Tax receipt for a period of at least six (6) months prior to the solicitation opening.
The results are as follows: Broward County Tax Name of Firm Eligibility Receipt Eligible Verified; Valid more than six Adept Public Relations, LLC months prior to solicitation opening Eligible Verified; Valid more than six ADG Strategy Group, Inc. months prior to solicitation opening ANCO Media Group LLC D/B/A Revolution 93.5 FM WZFL Not Eligible No valid tax receipt
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Barrington Management Artist Group, Not Eligible No valid tax receipt Inc. Eligible Verified; Valid more than six Conceptual Communications, LLC months prior to solicitation opening Cornerstone Solutions Florida, LLC Not Eligible No valid tax receipt Cunningham Communications Consulting Company Not Eligible No valid tax receipt D/B/A The Brand Advocates, Inc. Eligible Verified; Valid more than six Full Moon Creative LLC months prior to solicitation opening Eligible * Verified; Valid more than six Metropolitan Public Strategies, Inc. months prior to solicitation opening Eligible Verified; Valid more than six VGreen Enterprises LLC months prior to solicitation opening
* Business Tax Receipt indicates business start date of February 05, 2019. The solicitation opening was September 20, 2019.
Attachments 1. Vendor Reference Verifications 2. Vendor Performance Evaluations (None) 3. Vendor responses to Purchasing Director’s Draft Memorandum 4. Office of County Attorney Memorandum dated November 27, 2019 c: Bob Melton, County Auditor, Office of the County Auditor Sean McSweeney, Administrative Officer Senior, Office of Public Communications, County Administration (Project Manager) Christine Calhoun, Purchasing Manager, Purchasing Division, Finance and Administrative Services Department Fernando Amuchastegui, Assistant County Attorney, Office of the County Attorney
BJB/ccc/xx r Exhibit 1 \ Page 1 of 25
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Please, ra1le yourexp,er iem:.e with the Need:s S•isfa,d:ary &c:e1En1 Nol referenced Vendor: lm..-owme,nt ,Applicable 1. Vendor's QuaMy orSe,vice a. Resp:,mne D n b. Accixacy I I I I c. 0&,.., e ratdes J C 2 Voodot' s Org.:I1iz:aoon: a SIB.ff expertise b. Professionaism B B e. Tumova- □ I ·1 31. Timeiuiss of: a Project L C ✓. b. Deliverables □ □ ✓ 4. Pirojed ctrnp1eted wf'lhn budget □ S. Cooperation Wll'th: a. Y·oor Firm □ ✓ LJ b. Subcon1ract:l'f's)'8ubconsultant(s) 7 r:.. Reg�atocy Ag em;y(ie5j 1 [Z 17 ✓
Add.Imii COD1E1JiUlU: ���� O!',.Eda�nk'I !it\�J1( l'!i=:ied;, ADEPT has a \IVOndertui v101klng relationship Wilh pmlect team and County staff and le.ad-ersrnp.
I. � ..._ar r':'lll..11.!!:. &� Ca..:r•-,I& .&..!le.! h. R'¼:!&.i.r "W"'...i:1 �• S'd rJI!�-::&. �-� 11" ri.:::::t-.:!! ,-..i.--:..-.!s MLllr r-, � .!P:a n..JDJrW 1.,a:r bi � ! t-, ?<-.. ,:..,.."\; I.I t .k!tilli (:t �Jil.tD.:l'i -U.11_...¥..,.r-.t � vi�,� i· t!!W I.�! i,;t1'-=il,i Uil. -- h� es:.,i., :.11.�■il .r"� ;a.._�t,,. :..aJ!a..t.r l't nl rj � E:r--..at..-,! c...... -.,,,:J p.�,� • .,.... . 11 , ' ro' r Exhibit_,.. 1 \ fl I \I) I ,\ t' \ I ' , -r.Jcr?Page 1-C2 of 25,; \/<:r•��•
Vendor Reference Verification Form F L O R I D Al
Broward County Solicitation No. and Title: Bid #GEN2119422P1
Reference for: The Brand Advocates, Inc. Organization/Firm Name providing reference: Florida's Turnpike Enterprise (FTE)
Contact Name: Kim Poulton Title: Manager Reference date: 09/20/2019 Contact Email: [email protected] Contact Phone: (954) 876-0048 Name of Referenced Project: Various construction and special projects Contract No. Date Services Provided: Project Amount: RFP No. 17-06 06/01/2005 to 05/01/2012 $ 100,000.00 Vendor's role in Project: LJrime Vendor [l}ubconsultanUSubcontractor Would you use this vendor again? [Z}'es Do If No, please specify in Additional Comments (below). Description of services provided by Vendor: Act as Public InformationOfficer. Provide full servicecommunications for Florida Turnpike, service plazas, Road Rangers, SunPass and 511. Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ b. Accuracy □ C. Deliverables □ § � § 2. Vendor's Organization: a. Staff expertise □ b. Professionalism □ C. Turnover □ § � § 3. Timeliness of: a. Project □ b. Deliverables □ B � B 4. Project completed within budget □ □ [Z] □ 5. Cooperation with: a. Your Firm b. Subcontractor(s )/Subconsultant(s) □ C. Regulatory Agency(ies) □ § � § Additional Comments: (provide on additional sheet if needed)
... THIS SECTION FOR COUNTY USE ONL y•••
Verified via: _EMAIL _VERBAL Verified by: ______Division: ______Date: _____
AU information provided lo Broward County ,s subject to verification. VendOf acknowledges that inaccurate, untruthful, or incorrect statements made in support of this response may be used by tile County as a basis for rejecllon, rescission or lhe award. or termination of the conlract and may also serve as the basis ro1 debarment of Vendor pursuant to Section 21.119 of the Broward County PrOaJrement Code. Exhibit 1 Page 3 of 25
B�"'tiWARD COUNTY Vendor Reference Verification Form FLORI DA
Broward County Solicitation No. and Title: GEN2119422P1-01 Communication and Marketing Services Reference for: Metropolitan Public Strategies, Inc. Organization/Firm Name providing reference: Transportation is the Future
Contact Name: Jacqui Carmona Title: Treasurer Reference date: 09/01/2019 Contact Email: [email protected] Contact Phone: 305-283-4558 Name of Referenced Project: Broward County Penny Tax Contract No. Date Services Provided: Project Amount: N/A 07/01/2018 to 10/31/2018 $ 250,000.00
Vendor's role in Project: [Z]Prime Vendor 0Subconsultant/Subcontractor Would you use this vendor again? [Z]Yes ONo If No, please specify in Additional Comments (below). Description of services provided by Vendor: MPS pra"1dod••rvl<•• to, 101, p1o)od lhol Includedcampaign •lrotogy. monagoment ano lwidralalng: oarnod modi• 1110naJlOmonl,pold media coolenl p1oductlon and o.. 1gn. il1tegraledmedia 1a1g0Ung, p1onn1ng, ano p14cam,nt ••M�.s.
Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ [Z] b. Accuracy □ [Z] □ C. Deliverables □ □ □ □ □ [Z] 2. Vendor's Organization: □ a. Staff expertise □ [Z] b. Professionalism □ [Z] □ Turnover □ □ □ C. □ □ [Z] □ 3. Timeliness of: a. Project □ [Z] b. Deliverables □ [Z] □ 4 □ □ □ . Project completed within budget □ [Z] □ 5. Cooperation with: □ a. Your Firm [Z] b. Subcontractor( s)/S ubconsu ltant(s) □ □ [Z] □ C. Regulatory Agency(ies) □ □ □ □ □ [Z] □ Additional Comments: (provide on additional sheet if needed)
... THIS SECTION FOR COUNTY USE ONL y•••
Verified via: __EMAIL __VERBAL Verified by: Division: Date:
All lntormallon p,ov1ded to Broward CoU'nly is subject lo venfication. Vend0< acknowledges !hat inaccurate, unlrulhfoJI. or mcorrect statements made ,n suppM of th,s response may be used by tne County as a basis for rejection, rescission of the award. or termination of the contract and may also serve as the basis for debarment of Vendor pursuant to Sectlon 21.119 of the Broward County Procurement COde. .,e_,, -� ·�· (' ('- o\• .... Exhibit 1 I' ,__ I Page 4 of 25
B�ARD Vendor Reference Verification Form FLORIDCOUNTYA
Broward County Solicitation No. and Title: GEN2119422P1-02 Communication and Marketing Services Reference for: Metropolitan Public Strategies, Inc. Organization/Firm Name providing reference: United for Affordable NYC
Contact Name: Jason Ortiz Title: Campaign Manager Reference date: 09/01/2019 Contact Email: [email protected] Contact Phone: 917-337-7746 Name of Referenced Project: Affordable Housing and Rezoning Project Contract No. Date Services Provided: Project Amount: N/A 12/01/2015 to 04/30/2016 $ 500,000.00
Vendor's role in Project: [Z]Prime Vendor OSubconsultant/Subcontractor Would you use this vendor again? [Z]Yes No If No, please specify in Additional Comments (below). Description of services provided by Vendor: □ MPS provided services for this project that Included campaignstrategy, development and management: earned media operalions; paid media content production, design and Integrated media placement targeting; analytical and market Industryresearch , planning, and brand development services.
Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ [Z] b. Accuracy □ Ill □ C. Deliverables □ □ □ □ Ill □ 2. Vendor's Organization: □ a. Staff expertise [Z] b. Professionalism □ □ [Z] □ Turnover □ □ □ C. □ □ Ill □ 3. Timeliness of: a. Project □ □ [Z] □ b. Deliverables □ □ [Z] □ 4. Project completed within budget □ Ill □ 5. Cooperation with: □ a. Your Firm [Z] b. Subcontractor(s)/Subconsultant(s) □ □ [Z] C. Regulatory Agency(ies) □ □ □ □ □ [Z] □ Additional Comments: (provide on additional sheet if needed)
-mis SECTION FOR COUNTY USE ONLY-.. Verified via: --EMAIL __ VERBAL Verified by: Division: Date: All information provided to Broward County is subject to venhcation, Vendor acknowledges that inaccurate, untruthful, or irrcorrec1 statements made in support of this response may be used by fhe County as a basis for reiection, rescission of the award, or termination of the contract and may also serve as 1he basis Jor debarment of Vendor pursuanl to Section 21.119 of the Broward County Procurement Code. Exhibit 1 ADG Page 164 of212 Page 5 of 25
January 13. 2019
REFERENCE QUESTIONNAIRE
a,:; theretponsibility of lh8 ccntractorher.dor to providea m:nimum or 11lrco{3) sim11a, type references using m� form sno to providlltn.:. inform8Tlonwilh your submi!>s Fax· ______ Email ("d Y h rY"'I q GJc.t O I . C v r'Y\ 2 Ho,-e 1hc,:ebeM any change orden1. end ;r so. h 3 a: Did tho�rform on a tim4'!1v b;:isis as reqvired by me ugroement? .� �e� 4. 0: Wn� the project men39er easy to ()elin cont.a(:{\\ith? .; fd 5 6 0: c,.,e,...JI. what vt'CX!ld you rate U1eir pertanllunce? (&:Ilk: from 1-5) ll. �l'X':IICnl 04 C,ood [)a F.iir O 21-'oo, 01 Unaccup/R.b,'t? 7. 0: Is there Mything else we ihould ,mQ>v. that we ha not u1w117,.,,,.. J- �e,/1!�· ye "' :. .;z:,/ypp/d ��o.b!d�cl dX/,u;- A,J'-1� �1.,...- ' The undersigned do,;s horeDy certifythat Im; rcrogo1ns >:(nd suDsequen: swrtemeni;s .ite true BM corr>?� and ,,ic made lr,dap�nt!y. fr,Hi rrom ��ndor intorferen�/ooUuStOn Narre· ,R;c�/JIJ.# �. f}.s,J�N(_ /• C.£/J K Title - fon d'J�,L CC:.b 5j'v-er.f½,<- �,;,.ve v.J'f'Jt:!4'-. � nutc: �js /1'1 152 ADG Strategy Group Inc. - Broward County Transportation Surtax Plan ADG Page 165 ofExhibit 212 1 Page 6 of 25 I REFERENCE QUESTIONNAIRE 1 . 1 1: l!l ·•,._ ·.-::i :-; ... : :,1,1: t ! r -c X ·M�!,:r·•:t•nc:y• :,: �rc·.•rtJt. .1 .. m ...-_T :·' :h"�e � • !.. ,,.. �r., l, :,c;r-0" t- ·'i'"; ftt - •, •· .; h t:- :ttr.'I "' ,.:r,a t� C: j/1:!: "h!• -f-;-.�'!:�" •.111H, ..,.:, .: �,.,;:--:.!..1:•r ;J ..,!-O �r. -:,; �o ...... ,.,.1,:�un,- :•,o "'C,JC,..:t�•rl !l� •�u· �c.trfir:�•o· -�-- �� •e,!•<,r,,,, •r· 2bu:o taS:t O• \"#no.� •1,:J� •1tr: 1f,; �' ,� ... e !·�p r- n•,43�ct" $ Jl.tf,ooo .: o· .',;l ;·"' �u•,,:".t -v·t;e: t.-,1r., i,, ;-,t 1· :.:,r.:J:.: ,\'"tt· �ES C, ·:, ,, ..., I ·1,h.>: •·\!. ,: �, \ ·ltt :· e:,r :.,,. -r., ""t�,:t � , £.:l !.' •r ·1, ,. • �'" �,-:.,,•,.,,, 04 :;-,..,,; :J:i :.,_,. :J2 /"'.).'' :)1 L :r..,.·•·,,;:;r·,, 1 t O· t:, t·-e·t Jl•�t ...... 1 ; � :t ·••◄{: f� ·111,j � ..,c �...• t"'::t� ·1.,• h.,1·,•t, rii:� Jj r I I•· -j�•:. ;.t"'i<:C' ;J 1c:, "'N00'.! ;i::r: 1. t•;.i1 ."","; fe�e-;,!.· ' ,:, •tr 1j ',f.. '!i4'•:i;\!.:t° !,'.Jt�·· ••• , 1 ;,·,;- ;•·-•�'- lf' 1:::) .1· ..._ l i! �: : ·-c· mJ :r. 1 4 1nit,w • jc:"ttt ,e ... •; •rr1 ,•c�-dor -ii;-•·rt:nr\,•-:olh.1-:.. :,1 ADG Strategy Group Inc. Broward County Transportation Surtax Plan 153 Exhibit 1 ADG Page Page166 of 7 212 of 25 Cit,• o: l-lel'J\,ocd Flonoa January 13. 2019 REFERENCE QUESTIONNAIRE It ,� t:H: ro-s�ons1011ityor tho rontraCIOl'Ncndor lo pro111de 3 rnirurnum of three (3) �•rn lurty-,..,.. r.-!fe,enc-,1:� uiu,g thii.; form .:r,d to o·c.,,oe ·ti,s ,nforrr.aron with y,;u,suorr..ss,on ,;::.,es;re to oo sc, ..,...,y rc::�ult in tho reject>on or r:1ur :;ubmr.s1ot1 Firm g '"'"JRefererc<: No-tfl\,5',.dl,r�,'.) V -"I il/e..t�i'j Add cm _j)1,Cl\ CA A-1e< l-�•1JqJ.;....l<., � "3'�:,31 le.1- j r"'t' / 1 r>�on.: ASY-2(,J-.·'>)l.(O( Fax _!J/�..:..---- Em�, -�• [<,,_h.,'1-)o_:ne, ()G,r". edv-,_ Q: WMat wo� m,, iJ,;,;n ,,a.,;, ot '"" �omra,:t'' $ ').o,""o 1 -fa,•t-: 1·1c10 tie�r a,.,, , !'h.ange oroer!t i3nd 1'�0 how -::1.,y'' - ('lei 0: 1: d "·•>y po-for� on a �rncy t,ns,s �- ,.,qu ·od by l"e 11gre.1:n-.,•·i? tes � Q: Wes t r c or"t<•Cl man&ger eA�� le;, 91111n contact wm� 1/.e:, 0: 'A•c,J t! 1'thl Vt.I: t-ar,, ;tf.Jlfl" Y-ts Q: Is r-.ere f,O)'t'•ing ela 'Ml. f.htJU d know !Mt 'I,,! hilVO n-,1 J�ed'> - Sl-\,r°' ;_s 6+-,..._J.. ,f, I -n,.,.._i,+.A..I --.1. e�"-1 �rt--+ o,,.-lv,<.<, . 11»· v·,der,:,,gr,�c ::1u.,, roreoy cE,rl�\ th.it �'l� fcregon,,1 .�,,d ,Ub$oquert s:;.k,,-..�,t:; ar� true ar,o Lt:"cs;t .ir;:, ar� rr,alle 1110,,,,�--c!ent'y, fr;,,, :rum ·;endor nter'r,1cn,.e1col/1:t-on 154 ADG Strategy Group Inc. Broward County Transportation Surtax Plan ADG Page 167 ofExhibit 212 1 Page 8 of 25 City ol l108r,,�cd. l'k,ricia Janual'V 13, 2019 REFERENCE QUESTIONNAJRE It 1s the re;ponsi!>ilityortho contractortvcndorto provide a niinimum ofthre� (3) !►.trrilur typ:, referen= U$if'lg this form ,ind to proV1de this informs1fonwtth your submcss1on. Failureto do so rroy result in the rejecbon or )'Our submission t) GMng referen� fcr.Shiw Y:astao Go Idskin, A G strak:Jt_Grocy> Firm gMttg Reference· V\.�'Hl.o - Of\-0 f M �f>�TEQ. 0 £ ------L.,0(.A: L.. \ '-{03, Addre�s: _'8'..c;.,.-'------0 0 0 IvW '2..l '$ 1 -· -----·------Poone '!?t>"5 - 5'"q3- CQ �.a__ o______Fax: ______------·-- 1. ,\Q; Whet w:isthe dll!lorva lue ot lt.econtract? 1->2.1..1.: 1000 .o o 2. Have mc10 boen any ci\,mgo orders, one! if so. how many? A µo,-J(2; 3. Qi Did thoy perform on ;) Umoty basis as required by the sgreen'Jt:nl? 4 Q; Was the projuct manager eAS'(l 6. 0: O.. Q: IG there tmything else we r:hould know, that we have not a,sl n,e undersigned dous hereby certJty that the forego1n9 ;,ml :;ubsequeN sta1�11.,'fll:l are true ano crnr�-<;t .md are made mdl!p<.-ndenb'y, fret< trom \-endor inttmercnctllcollus.ion Date. 2019 10·14 PM p J. ADG Strategy Group Inc. - Broward County Transportation Surtax Plan 155 Exhibit 1 ADG Page Page168 of 9 212 of 25 REFERENCES Congresswoman Donna Shalala United States House of Representatives 305-668-2285 Congressman Ted Deutch United State House of Representatives 561-470-5440 Dan Lindblade '-. .6 President & CEO, Greater Fort Lauderdale Chamber of Commerce V--- [email protected] 954-462-6000 � Penny Shaffer Market President, Florida Blue 305-921-7400 [email protected] �" Mary Lou Tighe · · Executive Director, Broward L 786-395-2251 �m.:.:..lt::!.li ::,.,:.h.:.::e:.=..::,:.:.,::::..:..:..:::.!....:::.!.== Dr. Danny Armstrong Associate Chair, Department of P rsity of Miami Director, Mailman Center t Holtz Children's Hospita n morial 305-243-6801 miami.edu Jaime Caldwell spital & Healthcare Association hha.com Ed Mo Presi nt & C , Independent Colleges and Universities of Florida (ICUF) 850-6 [email protected] Matt Pinzur Chief Marketing Officer, Executive Office, Jackson Health System 305-585-7136 [email protected] Richard Ballard Former CEO, Sylvester Comprehensive Cancer Center, University of Miami 786-266-5562 [email protected] (SEE PROFESSIONAL REFERENCE ATTACHED) 156 ADG Strategy Group Inc. - Broward County Transportation Surtax Plan Exhibit 1 ADG Page 169 of 212 Page 10 of 25 CLIENT LIST Dr. Barry lssenberg, Director The Gordon Center for Research in Medical Education, University of Miami Miller School of Medicine 305-243-6491 [email protected] (SEE PROFESSIONAL REFERENCE ATTACHED) Dr. Judy Schaechter, Department Chair '-.. � Professor & Chair of Pediatrics, Department of Pediatrics, University �i¥ System/Miller School of Medicine � George E. Batchelor Endowed Chair in Child Health '-.. i Chief of Service, Child Health at Jackson Health System 305-243-3993 [email protected] � ' � ' Jeremy Katzman 954-262-5408 [email protected] (SEE PROFESSIONAL REFERENCE ATTACHED) Omar Blanco, President Metro-Dade Firefighters, lnternat' na 305-593-6100 Omar.bl co (SEE PROFESSIONAL REFEREN C Parkinson's Founda 305-537-9904 rkinson.or CHED) Rudy F Chief resident Julio Frenk, University of Miami ident, Public Affairs, University of Miami [email protected] ADG Strategy Group Inc. Broward Coun,y Transporration Surrax Plan 157 Exhibit 1 Page 11 of 25 Vendor Reference Verification Fofm Bro\v(udl Cm.nly Sotid .et1M1,No.and Tide: #GEN2119422P1 - Communication and Marketing SeNices ------Julia Public LLC -ReCerence--roc ------Ruffob I ADEPT---- Aalar,on,··-.t - Orgalil[Z,a,liooJ'Flrm N3me provtd1119 rea-eooe: lrrnp:eria1 Point Association Coni3ct Name: BettyJ . Sl1elley TIJe: President Gone:::t Emal bjsho:£11!!)'5�!.Jma�.t:eim Contact Phone: 954-629-7816 ...... ,.. ., ,Name DI' ReferencedIProjac:t Publrc Relea·bons and Web Prcmott0r1 Contract No. Dal.e Serv:ioos Provided: Project ,Am1;7..m!: lo 05/2'4/2019 Vaidc.-'5 ro!e mPmiect � Prime Vendor- LJSubit.-nnsultanti'Subconllraclor Woad you use tns verndor again? 0Yes Of'IJ,,::, lf No. ·�ease sp,s,afy in Addllliooal C.omments (be!tN1). !Description of sem'ces provided byVe:nidor. Pubht IR�laUor,s, Soc�ail Medi� Promotion, Websil& tiosting IP,lcase ra,te your experiencewilhthe Needs, s al&fac'lory &afM1 Not irefonmced Vendor: lmp-ouffl!!nt Appliub&! 1. Veooor's Oualr!y of Sesv1ce a. Riftsponsiv,e 01 [J � u b. Accu-acy 01 0 � □ Ii:,, Oeberablles □ ,-, � LJ .2.. Vendor's Orgmtzaooo: a. Slaff experti.se· □ □ � [J b. Profession iiis.m □ □ � □ C. Turnover 0 □ � □ 3. nmehness ol: a Project □ □ � u b. De&verabiles □ □ � [J 4. Prt::;ed etnplcted Wlllill booget DI □ � □ S. CooperatEn v-.,th:: a Your firm D � b. Swcontracu:qs)ISubconsultant{ s) □ C. Reguato-yAgency(ies) D D □ 0 □ □ � .l-'.■ �:.-U I.J:i::ll1i.t:blW11t-.rl'•Wr.im"ZJ.::n:n...-r'D1 �rr1wrrmu-,"1'U'v ar:a::....- l!'ffTl!l:1."'I llmrtiauc:a�u1uitir1W:mtl n1 &J:::X.�.artrMY"IU',''"Si=I.u:l"W:"s='•F• = ,ff•'"'f'_.,... � •-I Pliltr;:ifa1,11""1 f""111 C�PhY n a '•niiiiff� 'lfilil I E'fr'400tJl-.i◄ -• ..._. n.,-,:Jiili [4(o-""'('◄liJl!f 1�.-.�,1 li!•t 'if.,... .-t W!ji1�f ltf ,•filiPJ 1I rv-r-11' -THS 5ECTI� FORcal'h Vendor Reference Verification Form Broward County Solicitation No. and lllle: #GEN2119422P1 - Communication and Marketing Services Reference for. ADEPT Publlc Relations, LLC Organization/Firm Name providing reference: Bermello Ajamil & Partners, Inc. . . - Contact Name: Michael Vanderbeek Title: Director, Ports & M, Reference date: 0512312019 Contact Email; [email protected] ConIact Phone: 3059893468 Name of Referenced Project: Port Everglades 2018 MasterNision Plan Update Contract No. Date Services Provided: -P ,o- -eJ -c,- Amount: 6031823 03/29/2019 to 03/28/2020 $ 1,065,000.00 Vendor's role in Proj-ect: □ Prime Vendor �SubconsullanVSubcontractor Would you use this vendor again? �Yes ONo If No, please speclfy in Addllional Comments {below). Description of services provided by Vendor. Pl;anning. organizing, 6'hJ!.dullnr;;i, noticing �repanr,g and doirumontlng rraretmgs ruiappropriate related lo 1h11Porl EvGrq!.de1 2018 Mas1srNCS"-O"Plan Updgl.e; prad=ng a O1all and Fln,11 Drart 3•0 tompli10111nlmo.ted v!(loo tlr• English) lhal It al)()ro,lmntol), !i mlnute.s 11\ 11!'1gCh and lh�I r11ffvt"tu llie aVDrafle>ut(0me olld n.H:Ommondotlcr,a 'if.I, ICNth Ill t•,a PMI E11,i,iglfldoa.a20 1 a MutoiNlslM f"on Up1fol11, Please rate your experience with the Nooda Satisfactory Excollonl Not referenced Vendor: Improvement Appllcoblo 1. Vendor's Quality ot Service a. Responsive □ □ � □ b. Accuracy □ □ � □ C. Deliverables □ □ � □ 2- Vendor's Organization: a. Staff expertise □ D � □ b. Prof esslonalism □ □ � □ C. Tumover □ □ □ � 3. Timeliness of: a. Project □ □ � D b. Deliverables □ □ � □ 4. Project completed within budget □ □ � □ 5. Cooperationwrth: a. Your Firm □ � b. Subcontractor(s)/Subconsultant(s) □ � C. Regulatory Agency(ies) □ □ □ □ □ � □ Addltlonal com,.....nb: (pcuVldU OriOddllon� ililluct II nou-dud) ... THIS SECTION FOR COUNTY USE ONLY--' - J_ - IA Vonfted Vl;;l: �IAll _VERBAL VerdiQtl by; � 0Mslan· C,fC- Oalll: /0-)2::!l..!.EJ Al d"IU'm.tl!c,np,-u,,tditd b 8..aD•...rd Ca,.,11, LI Utq«,"i b....��Q,t V.tn:lJ ��uid�tf'UII llll!Xl.Ufli!J'lrutt..J ... a, ltWTI!iiO !.'t2.""""'ill rr.JtJ• lfl 1.l.fljJIIII\ftt � ,�� 11WIY b� .IJ� 0) U. �U,!f ff! .a �td b, r.w-a.y, feEWlU..0.11 rJf tlrt �•sd � •rrumV-1'1 U f'le re.Y..td: .s,d ,,_a, !II� ...... z lN tlHA b' (l�:91'N!IL c1 Vffldo, C,l.t."!U..!J1t tJ � ,, 11,; r.J. ��·Ml.rd C4.Jt, Poa.r•"ttl CQ,te. Exhibit 1 Page 13 of 25 BffciWARD c ulJt--.iI ( Vendor Reference Verification Form IJLOalDA Broward County Solicitation No. and TIiie: #GEN2119422P1 - Communication and Marketing Services Reference for: ADEPT Public Relations. LLC Organization/Firm Name providing reference: City of Key West Contact Name: Doug Bradshaw, Title: Port Director Reference date: 0512312019 Contact Email: dbradshaw@cityofkeywest•fl.gov Contact Phone: 3058093792 Name or Referenced Project: Key West Historic Seaport Marketing Services Contract No. Date Services Provided: Project Amount: RFP 10·015 12/21/2015 to 05/23/2019 $ 574,000.00 Vendor's role in Project: �Prime Vendor 0SubconsultanUSubcontractor Would you use this vendor again? �Yes □No If No. please specify in Additional Comments (below). DHcriptlon of s.ervices provided by Vendor: Please rate your experience with the Moods Satisfactory EJicollont Not referenced Vendor: lmproVGmont Applkoblo 1. Vendor's Quality of Service a. Responsive □ □ � □ b. Accuracy � Deliverables □ □ c. □ □ � □ 2. Vendor's Organization: a. StaH expertise □ □ � □ b. Professionalism □ □ � □ c. Turnover □ □ � □ 3. Timeliness of: a. Project □ □ � □ b. Deliverables □ □ � □ 4. ProJect completed within budget D □ � □ 5. Cooperation with: a. Your Firm □ � b. Subcontractor(s)/Subconsultant(s) □ Regulatory Agency(ies) □ □ � □ C. □ □ □ � Additlonll! Cornmentt: (provuJu or1 iJddll-ori.-. shoat it nu-etJed) ....,op< OS ii"<1<' 1' Q ...THIS SECTION FOO COUNTY USE ONLY"" M �.:::.-:.�:,< <�:=� �W• "•�: ::.:.,.�:�� c.,.,,,,"8 11 au.� W """acr, ,�,. i>I t, .....;y-,:j • �'""""'""'a,.:::.: .,• .,,,,,...ci � ,nJ ,,.., ,n;, .....,.. .,,. '"" ..... b •l!Jllal'-fl .- 1/ffl.Dl ...,,..,_,,,t· •� !. Vendor Reference Verification Form , L O a I _lb_ A Broward County Solicitalion No. and Tille: #GEN2119422P1 - Communication and Marketing Services Reference for: ADEPT Public Relations, LLC Organization/Firm Name providing reference: Go Broward, Inc. Contacl Name: Peter Moore Title: Board of Directors Reference date: May· 29. 2019 Contact Emal!: [email protected] Contact Phone: 954·818·9552 Name or Referenced Project: Broward Penny for Transportation Contract No. DateServices Provided: Project Amount: 05/1 8 to 11 /18 $43,975 Vendor's rote in Project: [2)Prime Vendor OSubco nsultanVSubcontractor Would you use this vendor again? [2)Yes ONo ff No, please specify In Additional Comments (bel ow). Description of services provided by Vendor. ADEPT worked wilh local, regional and national organizations as weU as the small, mInor1ty and women-owned business commumty to engage voters on the tmportance of the penny tax. Please rate your experience with the Noods Satisfactory Excollont Not referenced Vendor: tmprovomont Appllci,ble 1, Vendor's Quality of Service a. Responsive b. Accuracy Deliverables C. § § � § 2. Vendor's Organization: a. Staff expertise b. Prof essional1s m C. Turnover § § § § 3, Timeliness of: a. Project □ □ b. Deliverables B □ � □ 4. Project completed wilhin budget □ □ [2] D 5. Cooperation with: a. Your Firm 0 b. Subcontractor(s)/Subconsullanl{s) □ □ C. RegulatoryAg ency(ies) B B � B AddlUorlii.l Commonts:(pro-.-do on udt1J,011.- w,oot d nuodix:I) ADEPT was critical to the successful passage of the Penny Sales Tax in Broward. ""TI·IIS SECTION F-OR COUNTYUSE ONI.r•• Votir�(J Viii ✓.MAIi. _VE.RSAL Vqtd',ad tty: � OM'lilQil. {!)/IC. 0ab; 10/.z,Jt9 Al m�ru, Of-DINNd t:I B«t• Jf'll C.C�!, i..t �J�i!K:! E ,�Qtl v.�m, JCJffl.�9£'1. .. El tlft=Q.lUM, 1.#;f11"!;,,1PilJ a, Pl(CllfllC I.Ulft'tl'I.B ffl4-llt tfl IU?&:n� d fn. Hltlp.mt=t tfflr c� u-t:t'ld ttf U11:1 Ct:1,..,!-p .'II Jt tl:ikl�t,-tpd,,!Yt, t��r,�it,0::11,11:,Q. c, 9°t"'lli'Ukr1 cJ t1n<.o.11J:1a..91el fffll dlW � n tr.twt:a. b-dd.Jrtrmf&::IV'll"I�, g.jl'!W..Yflkli St�� 2\ ll!i � !tt &"ll .o.-dCa.JrKt P�1.vemel'I Crue Exhibit 1 Page 15 of 25 BR�CJ:WARD COUNT f Vendor Reference Verification Form f&.OII IDA Broward County Solicitation No. and litle: #GEN2119422P1 - Communication and Marketing Services Reference for. ADEPT Public Relations. llC Organization/Firm Name providing reference: Beefree, LLC dJb/a Freebe-e Contact Name: Jason Spiegel Title: Managing Partner · Reference date: 5/24/l 9 Contact Email: [email protected] Contact Phone: 215-370-5699 Name of Referenced Project: Freebee Con tract No. Date Services Provided: Project Amount: January 2019 to Current 54500/monthly Vendor's role In Project: �Prime Vendor OSubconsultanVSubcontractor Would you use this vendor again? �Yes □No If No. please sP<3cify In Additional Comments (below). Description of services provided by Vendor: Please rate your experience with the Hoods Satilfactory ExcoUont Not referenced Vendor: lmprowmont Appnnblo 1. Vendor's Quality or Service a. Responsive □ □ � □ b. Accuracy � c. □ □ □ Deliverables □ □ � □ 2. Vendor's Organizatton: a. Slaff expertise □ □ � □ b. Professionalism □ □ � □ C. Turnover □ □ � □ 3. Timell-ness of: a. Project □ □ � □ b. Deliverables D □ � □ 4. Project comple ted within budget □ □ � □ 5. Cooperallon with: a. Your Firm □ □ � b. Subcontractor(s)/Subconsultant(s) � C. Regulatory Agency(les) □ □ □ □ □ � □ Addldori.al Comm,m\$: (PfQV!do on 4dclllon;; stteel ifno,;i4od} "'"l}iJSSECTION FOR COUNTY USE ONLY-" Ve11r1ou Wl. �AIL 0M$(11'1' 0/?C _VERBAL ve,,,od by: �:-:z--:; Oa.,: Ii�Ir Al w,bm./UIJ>p,- 15 e .....,n, <:,,,.,.,.• ,...,..-=iU -� �·.. 11:l;,_,,,,.,..,aj'.)ill ti .. fl.lEX!.IJ"... ..,.,,.,,,., Qf tl<;afa::t .... .,, .. BR-'6WARD •' LOUNT f Vendor Reference Verification Form f_ L O • t D A Broward County Solicitation No. and Tille: #GEN2119422P1 • Communication and Marketing Services Reference for: ADEPT Pub1ic Relations. LLC Organization/Firm Name providing reference; Geosynte-cConsultants Contac(Name: Mark Ef1ard Title: Senior Principal Reference date: 05/24/2019 Contact Ema.II: [email protected] Contact Phone: Name of Referenced Project: Broward County Future 100 Year Flood Pam Contract No. -Date Services Provided: Project Amount: RFP #A2114367P1 05/08/2018 to 05/24/2019 $25,217.00 Vendor's role In Project: □ Prime Vendor �SubconsultanVSubcontractor Would you use this vendor again? �Yes' □No It No. please specify in Additional Comments (below). Description of services provided by Vendor. Assisted with Public Rolations and stakeholder coordination Including racilltating meetfngs that lnciuded Counly staff, 30 municipalities, 23 water control districls, and regulators. Please rate your experience with the Hoods Satltfactory Excellont Not referenced VendOf': lmprovomont .Applicablo 1. Vendor's Quality of Service a. ResPonsive □ □ � □ b. Ac curacy [!!] Deliverables □ □ □ c. □ □ � □ 2. Vendor's Organlzatlon: a. Staff expertise □ □ � □ b. Professlonallsm □ □ � D c. Turnover □ □ l�l 3. Timellness of: a. Project □ □ □ b. Deliverables □ □ □ 4. Project completed within budget □ □ □ 5. Cooperation lhith: a. Your Firm □ b. Subcontractor(s)/Subconsultant(s) □ □ c. RegulatoryAgency(ies) □ □ □ □ □ □ Exceeded expectations FOR couwv usE ONt.r·· _VERBAL lly: , , l Vanflod Vl1l: �!AIL Vorliod ....__..__-_-:._�::,·:,r----- OMU)(1, (!)f(_ Onlt!: �l'J. , / AJ .(l�Jl.bll Pl"�d � Dt11a.s-J (",Ch.ti?', Lt w�z.t b ..m-�n. V.tl'.bt �.�1}!1. ti�fl�Jlb u111"Utl'4 fJl t'1COt!let :C.1a"t!-O"lft; m:.Jct!di '1&4!pi)!'l el ,u fi:itQ(trt:la ,no,� u:dd ty tj. Cot.11#/ .a•i:u� br ffl,tJtA:J11 •�tta•"" 4..,.a.!( � llt.l"Nr'\SWI .J "e QS!Wil!1....,d nu:y- -ciSd � "'5 ·�� �g D dcfLlflfflrt d Vd'IOlf (hl.15.1..:t"lt I), Sit..da'I 11 113 ,_ ht rro�.. � Cru••v P..,.,.,-•-,. C(d� Exhibit 1 ADG Page 163 of212 Page 17 of 25 Bit'9M�-COUNTYARD Vendor Reference Verification Form IWM•M·W■•W·i Broward County Solicitation No. and Title: Transportation Surtax Plan - GEN2119422P1 Reference for: ADG Strategy Group Organization/Firm Name providing reference: Parkinson's Foundation Contact Name: Sean Kramer Title: Senior VP Reference date: 09/11/2019 Contact Email: [email protected] Contact Phone: 305-537-9904 Name of Referenced Project: Mitzvah and Firefiqhter Proiect Contract No. Date Services Provided: Project Amount: 09/01/2018 to 12/31/2020 150000.00 Vendor's role in Project: IITJPrime Vendor 0SubconsultanUSubcontractor Would you use this vendor again? IIT]Yes ONo If No, please specify in Additional Comments (below). Description of services provided by Vendor: Fully developed two separate programs for the Foundation from conception to implementation. Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ □ IITJ □ b. Accuracy □ □ IITJ □ C. Deliverables □ □ IITJ □ 2. Vendor's Organization: a. Staff expertise □ □ IITJ □ b. Professionalism □ □ IITJ □ C. Turnover □ □ □ IITJ 3. Timeliness of: a. Project □ □ [[] □ b. Deliverables □ □ [[] □ 4. Project completed within budget □ □ IITJ □ 5. Cooperation with: a. Your Firm [[] b. Subcontractor( s)/Subconsulta nt( s) □ □ □ C. Regulatory Agency(ies) □ □ IITJ □ □ □ □ [[] Additional Comments: (provide on additional sheet ,r needed) Would hire this firm again and highly recommend! ...THIS SECTION FOR COUNTY USE ONLY-" • - IA.,,,... J Verified via: �MAIL VERBAL Verified by: � Division: 0 pc_ Date: �q AU lnforma1Jon fl(CMCfed to Broward County rs subjecl IQ Ye11ficat1on. Vendor � �fl.JI. or incottecl statements made '" $1JJ)por1 of lhis response may be used by the Coun.iy as a ba$l.$ Porre,ec.t1on, reSCl$sion or the award. or lerrninalion of u,e cootfael and may also serve as tne basis fot debarm!f'II of Ve�or pursuant to Sec.11on 21,119 of lhe B ADG Strategy Group Inc. - Broward County Transportation Surtax Plan 151 Exhibit 1 Barrington Page 40 of 43 Page 18 of 25 B��ARD COUNTY Vendor Reference Verification Form FLORIDA Broward County Solicitation No. and Title: GEN2119422P1 Video Scripting & Production Reference for: Barrington Management Artist Group Organization/Firm Name providing reference: Clear Essence Cosmetics USA, Inc dba Bluefield Associates, In Contact Name: Dr. lheatu Obioha Title: President Reference date: · / I · 1 f� 0 Contact Email: [email protected] Contact Phone: (714) 726-8000 Name of Referenced Project: Clear Essence Adv. Camoaions (Video & Print ads) II Contract No. Date Services Provided: Project Amount: 07/2018 to 08/2019 $38,000 Vendor's role in Project: IllPrime Vendor osubconsultant/Subcontractor Would you use this vendor again? ll)Yes □No If No, please specify in Additional Comments (below). Description of services provided by Vendor: Video and Print advert concept, story board , design and implementation Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ □ Ill D b. Accuracy □ □ Ill □ C. Deliverables □ □ □ □ 2. Vendor's Organization: a. Staffexpertise □ □ Ill □ b. Professionalism □ □ Ill □ C. Turnover □ □ Ill □ 3. Timeliness of: a. Project □ □ Ill □ b. Deliverables □ □ Ill □ 4. Project completed within budget □ □ Ill □ 5. Cooperation with: a. Your Firm □ □ Ill b. Subcontractor(s )/Subconsultant( s) □ □ Ill □ c. Regulatory Agency(ies) □ □ Ill □ Additional Comments: (provide on additional sheet if needed) Verified via: /eMAIL _VERBAL Verified by: Division: C?PC Date: Loj2!l/t9 All information provided to Broward County is subject to verification. Vendor acknow1edges that ina curate, untruthful. or incorrect statements made In support of lhis response may be used by the County as a basis for rejection. resr.lsslon of lhA award. or termination of the contract and may also serve as the basis ior debarmenl of Vendor pursuant to Section 21.119 of the Broward County Procurement Code. Barrington Page 41 Exhibitof 43 1 Page 19 of 25 Vendor Reference Verification Form Broward County Solicitation No. and Title: GEN2119422P1 Video Scripting & Production Reference for: Barrington Management Artist Group Organization/Firm Name providing reference: VICTORIA COLBY (Creative Art Dir.) Contact Name: Victoria Colby Title: Creative Art Dir. Reference date: 09/i 8/2019 Contact Email: [email protected] Contact Phone: (917) 292-7852 Name of Referenced Project: Avon Products Contract No. Date Services Provided: Project Amount: � toll to oy2-01-;+- $65,000 per project Vendor's role in Project: � Prime Vendor Subconsultant/Subcontractor Would you use this vendor again? ig]Yes If No, please specify in Additional Comments (below). Description of services provided by Vendor: Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ □ □ b. Accuracy � Deliverables □ □ □ C. □ □ � □ 2. Vendor's Organization: a. Staff expertise □ □ [] □ b. Professionalism □ [] Turnover □ □ C. □ D � □ 3. Timeliness of: a. Project D □ □ b. Deliverables □ □ □ □ 4. Project completed within budget □ □ � □ 5. Cooperation with: a. Your Firm � b. Subcontractor( s)/Subconsultant( s) □ D □ � C. Regulatory Agency(ies) □ □ □ □ □ � □ Additional Comments: (provide on additional sheet if needed) I have worked with Barrington Group on many projects, both photo and video, on location and in studio. There is a level of service, a "can-do" commitment, attention to every detail, and expertise that I have not found working with similar companies. I highly recommend them. -THIS SECTION FOR COUNTYUSE ONLy•- Verified via: _6MAIL _VERBAL Verified by: � Date: Division: oec /0�/;9I All infom,ation provided to Broward County is subject to verification. Vendor acknowledges that inaccl.O&te, untruthful. or ircorrect •tatemenls made in support of this response may be used7 by the Couniy as e besis for rojoction, rescission of the award, ortermination of the confmct end mey also setve es ihe basis for debarment of Vendor pursuant lo Section 21.119 a the Broward County Procurement Code. Exhibit 1 Page 20 of 25 Vendor Reference Verification Form F L O R I D A, Broward County Solicitation No. and Title: Bid #GEN2119422P1 - Communication and Marketing Services Reference for. Conceptual Communications Organization/Firm Name providing reference: Broward League of Cities Contact Name: Mary Lou Tighe Title: Executive Dir. Reference date: 09/11/2019 Contact Email: [email protected] Contact Phone: 954-357-7370 Name of Referenced Project: Marketing & PR Services Contract No. Date Services Provided: Project Amount: Marketing & PR Services 03/01/2019 to 02/28/2020 $46,200.00 Vendor's role in Project: � Prime Vendor □Subconsultant/Subcontractor Would you use this vendor again? 0Yes □No If No, please specifyin Additional Comments {below). Description of services provided by Vendor: Branding, Graphic Design, Marketing, On Site Event Services, Photography, Public Relations, Social Media, Video Script Writing and Production Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive b. Accuracy □ □ C. Deliverables B □ □ □ □ □ 2. Vendor's Organization: a. Staffexpertise □ r □ b. Professionalism □ □ c. Turnover □ □ � 3. Timeliness of: i a. Project □ b. Deliverables □ □ □ □ � □ 4. Project completed within budget □ □ d' □ 5. Cooperation with: a. Your Firm b. Subcontractor(s )/Subconsultant(s) □ □ □ C. Regulatory Agency(ies) □ □ □ □ i □ Additional Comments: (provide on addlllonal sheet If needed) l . <;,. .,.- 1 \'\ 'v-«�e... e(cee,otc?I J oof Bf\9---=WAR COUNTYD Vendor Reference Verification Form F LO R I DA• Broward County Solicitation No. and Title: Bid #GEN2119422P1 - Communication and Marketing Services Reference for: Conceptual Communications Organization/Firm Name providing reference: City of Parkland Contact Name: Todd DeAngelis Title: Chief Communicatic Reference date: 09/11/2019 Contact Email: [email protected] Contact Phone: 954. 757.4126 Name of Referenced Project: Marketing & PR Services Contract No. Date Services Provided: Project Amount: Marketing & PR Services 03/01/2017 to 06/19/2021 $50,000.00 Vendor's role in Project: [lfrime Vendor LJubconsultant/Subcontractor Would you use this vendor again? [Z}'es Do If No, please specify in Additional Comments (below). Description of services provided by Vendor: Branding, Content Creation, Crisis Management, Graphic Design, Marketing, Photography, Public Relations, Social Media, Reporting, Video Scripting, Website Updates Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ b. Accuracy □ C. Deliverables □ § � § 2. Vendor's Organization: a. Staff expertise □ b. Professionalism □ C. Turnover □ § � § 3. Timeliness of: a. Project □ b. Deliverables □ B � B 4. Project completed within budget □ [Z] 5. Cooperation with: □ □ a. Your Firm □ b. Subcontractor( s)/Subconsultant(s) Regulatory Agency(ies) □ C. D § § � Additional Comments: (provide on additional sheet if needed) ...THIS SECTION FOR COUNTY USE ONLY ... � Verified via: �MAIL _VERBAL Verified by:� Division: ()fc. Date: 7 AU lnformatt00 provided to Broward Counly 1s subjecl lo verification. Vendor acknowledges that inaCO)rate, untruthful, or 111correct statements made in support of this response may be used by the Coon1y as a basis for rejection, rescission of the award, or terminauon or the contract and may also serve as the basis for debarment of Vendor pursuant 10 Section 21., 19 or the Broward County Procuremenl Code. Exhibit 1 Page 22 of 25 B�: ,.,....COUNTY ARD Vendor Reference Verification Form FLORIDA Broward County Solicitation No. and Title: Bid #GEN2119422P1 - Communication and Marketing Services Reference for: Conceptual Communications Organization/Firm Name providing reference: City of Wilton Manors Contact Name: Pamela Landi Title: Assistant City Mgr. Reference date: 09/11/2019 Contact Email: [email protected] Contact Phone: 954-390-2103 Name of Referenced Project: Marketing & PR Services Prime Vendor Contract No. Date Services Provided: Project Amount: 9 Marketing & PR Services 10/01/2013 to 0 /30/2021 $50,000.00 Vendor's role in Project: l£frime Vendor LJubconsultant/Subcontractor Would you use this vendor again? Qes Do If No, please specify in Additional Comments (below). Descrintion of services orovided bv Vendor: Advertising, Branding, Content Creation, Crisis Management, Graphic Design, Marketing, Market Research, Photography, Public Relations, Social Media, Reporting including Google Analytics, Video Development, Website Maintenance Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ b. Accuracy □ c. Deliverables □ § � § 2. Vendor's Organization: a. Staff expertise □ b. Professionalism □ C. Turnover □ § § § 3. Timeliness of: a. Project □ b. Deliverables □ B � B 4. Project completed within budget □ □ [Z] □ 5. Cooperation with: a. Your Firm □ b. Subcontractor( s )/Subconsultant(s) c. Regulatory Agency(ies) □ D § � § Additional Comments: (provide on additional sheet if needed) Wilton Manors has been extremely satisfied with Conceptual Communications. , ..THIS SECTION FOR COUNTY USE ONLY'.. / Verified via: /EMAIL _VERBAL Verifiedby: � Division: 0 p(_ Date: /�/t:'i/11 AO Information provided to Broward County tS subject to veriftcahori, Vend0< acknowledges that 1nac:curale. untrulhh,1, Of lnconect statements made 1n support of this response may oe used by me County as a bas1s for re1ect1on1 rescission ol lhe award, or lermlnation of the contract and may also seNe as the basis ro, debarment of Vendor pursuant to Section 21.119 of the Broward County Procurement Code, Exhibit 1 Page 23 of 25 BfW.s·-.WARD COUNTY Vendor Reference Verification Form F L O R I O Al Broward County Solicitation No. and Title: Bid #GEN2119422P1 Reference for: The Brand Advocates, Inc. Organization/Firm Name providing reference: Jackson Health Foundation Contact Name: Charmaine Gatlin Title: COO Reference date: 09/20/2019 Contact Email: [email protected] Contact Phone: 404-428-5028 Name of Referenced Project: Jackson Health Foundation Marketing and Communications Contract No. Date SeNices Provided: Project Amount: N/A 06/01/2014 to 10/01/2019 $50,000.00 Vendor's role in Project: [Zrrime Vendor LJubconsultanUSubcontractor Would you use this vendor again? l✓res Do If No, please specify in Additional Comments (below). Description of services provided by Vendor: Marketing, communications, branding, website development, graphic design and creative services Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of SeNice a. Responsive □ b. Accuracy □ C. Deliverables □ § � § 2. Vendor's Organization: a. Staff expertise □ b. Professionalism □ C. Turnover □ § � § 3. Timeliness of: a. Project □ b. Deliverables □ B � B 4. Project completed within budget □ □ [Zl □ 5. Cooperation with: a. Your Firm b. Subcontractor(s)/Subconsultant(s) c. □ Regulatory Agency(ies) D § � § Additional Comments: (provide on additional sheet if needed) , '*'THIS SECTION FOR COUNTY USE ONLY .. * . Verified via: �AIL _VERBAL Verifiedby: � Division: OfG Date:� All lnformatJon provided lo Broward Counly ,s subjec1 to ventical1on. Ver1d0t" acknowledges lhal inaccurate, untruthful. or inCO B"19.;WARD �. -c, Vendor Reference Verification Form F L O R I DCOUNTY Ar Broward County Solicitation No. and Title: Bid #GEN2119422P1 Reference for: The Brand Advocates, Inc. Organization/Firm Name providing reference: Broward Metropolitan Planning Organization Contact Name: Peter Gies, AICP Title: Planning Manager Reference date: 09/20/2019 Contact Email: [email protected] Contact Phone: (954) 876-0048 Name of Referenced Project: Commitment 2045 Metropolitan Transportation Plan Contract No. Date Services Provided: Project Amount: RFP No. 17-06 06/01/2018 to 10/01/2019 $25,000.00 Vendor's role in Project: Qrime Vendor li}ubconsultant/Subcontractor Would you use this vendor again? [{res Do If No, please specify in Additional Comments (below). Description of services provided by Vendor: Community outreach and stakeholder engagement Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ b. Accuracy □ C. Deliverables □ § � § 2. Vendor's Organization: a. Staff expertise □ b. Professionalism □ C. Turnover □ § � § 3. Timeliness of: a. Project □ b. Deliverables □ B � B 4. Project completed within budget □ □ [l] □ 5. Cooperation with: a. Your Firm b. Subcontractor(s )/Su bconsultant( s) Regulatory Agency(ies) □ C. □ § � § Additional Comments: (provide on additional sheet if needed) ThllBrand Advocaias � put:,1¢.-Id Ol.lll'H(h 000l"dntlllon f0t � hi Browa,dMPO'& CmlmHn,enl 2045 M •ll'090l•IMT NWt$p0!1Qlkin PW!(MTP). Tho ll;wn ma�he\)114 ID coordltlatamaff19! publlcOlltfNch lot l\eMTP and Iba P"Nld� u,Q� on fflt)IM�arid publiccomm� ""4.fl ,espedMTP bo d.....,.baes Scaff,U W -.W4Y', OMimtPf�l'9dm 114 eetlnvs, pn,flrslllon#ancl enga,gir'lg , and 11110 �IOdWIii •.i:tttl'l'IGfy wih MFO •Ill. o.J'nf&btIn II ..-prtn4ced IIT..ry f'uNoi, er,d thawed: p,,oducbwarallW)lough,ndcomcilllle. **"THIS SECTION FOR COUNTY USE ONLY°* Verified via: �AIL _VERBAL Division: -�g_f_(_,�- All 1nformal100 provided lo Broward County 1s subjec1 10 verificat,on. vendor acknowledges that 1naccura1e, ntruthful, or mc0 B�}SWCOARDUNTY Vendor Reference Verification Form F LORI DA Broward County Solicitation No. and Title: GEN2119422P1-02 Communication and Marketing Services Reference for: Metropolitan Public Strategies, Inc. Organization/Firm Name providing reference: ShareBetter Education Fund Contact Name: Ian Dunford Title: Board Member Reference date: 09/01/2019 Contact Email: [email protected] Contact Phone: 347-225-5491 Name of Referenced Project: 2018 ShareBetter Campaign Contract No. Date Services Provided: Project Amount: NIA 01/01/2018 to 12/31/2018 $ 5,000,000.00 Vendor's role in Project: [ZjPrime Vendor Subconsultant/Subcontractor Would you use this vendor again? [Z]Yes □ No If No, please specify in Additional Comments (below). Description of services provided by Vendor: □ Campaign strategy, development and management; earned media operations: paid media contentpr oduGtion, design and Integrated media placement targeting; analylical and market Industry research, planning, and brand development services. Please rate your experience with the Needs Satisfactory Excellent Not referenced Vendor: Improvement Applicable 1. Vendor's Quality of Service a. Responsive □ [Z] b. Accuracy □ [Z] □ C. Deliverables □ □ □ □ [Z] 2. Vendor's Organization: □ □ a. Staff expertise [Z] b. Professionalism □ □ [Z] □ Turnover □ □ □ C. □ □ [Z] □ 3. Timeliness of: a. Project [Z] b. Deliverables □ □ □ □ □ [Z] □ 4. Project completed within budget [Z] □ 5. Cooperation with: □ □ a. Your Firm [Z] b. Subcontractor(s)/Subconsultant(s) □ □ [Z] □ C. Regulatory Agency(ies) □ □ □ □ □ [Z] □ Additional Comments: (provide on additional sheet if needed) ... THIS SECTION FOR COUNTY USE ONLY'"• Verified via: �AIL __VERBAL Verified by: � Division: _....,C,"-"f_._(__ Date: �/'f, All inrormaUon provided to Broward County 1s sub1ect lo venficahon, Vend0< acknowledges lhal inaccurate, unlruthful, or incorrect statements made in support of lhis response may be 1,.1sed by the County as a baS1s for reJection. rescission of the award1 or lenn1nat1on of the contract and may also serve as the basis tor debarment of Vendor purs1,.1ant to Sechon 21,119 of the Broward County Procurement COde, Exhibit 2 GEN2119422P1, Communication and Marketing Services Vendor Performance Evaluations There are no Vendor Performance Evaluations for any of the ten (10) responding firms. Exhibit 3 Page 1 of 258 Calhoun, Christine From: Dana Pollitt External Email Good afternoon Ms. Calhoun- Per your email below I would like to identify those deficiencies noted from the Draft Recommendation Memorandum for the subject solicitation. Please note the following deficiencies: 1). B. RESPONSIBILITY INFORMATION Number 3. Disclosure of Litigation History. The firm Cornerstone Solutions Florida, LLC indicated No Disclosed Cases No litigation cases with Broward. It should be brought to the purchasing director's attention that there is a suit naming Pradeem "Rick" B. Asnani and his firm Cornerstone Solutions Florida LLC for defamation regarding corruption, transparency, and accountability in local government in Palm Beach County, Florida. We request this issue be addressed by purchasing and shared with each individual Selection Committee member. 2). Section B. RESPONSIBILITY INFORMATION Number 4. Disclosure of Financial Information indicates ADEPT provided Financials for 2017 and 2019. Please note that technically, ADEPT provided financials for 2017, 2018 and 2019. ADEPT provided Tax returns for 2017 and 2018 and Balance Sheet for 2019. Should you require Balance Sheets for 2017 and 2018 those can be provided upon request if needed. 3). Section H. PRINCIPAL BUSINESS LOCATION, the firm Cunningham Communications Consulting Company D/B/A The Brand Advocates, Inc. The proposers attested Nerve Center indicates 110 East Broward Blvd., Suite 1700 Fort Lauderdale, FL 33301. This location is a Virtual Office run by Regus Virtual Offices and Business Addresses. The companies headquarters and "Nerve Center" is actually located at 1951 NW 7th Avenue, Suite 300 Miami, Florida 33136. Please see the sunbiz.org link: http://dos.sunbiz.org/scripts/ficidet.exe?action=DETREG&docnum=G15000128856&rdocnum=G15000128856 and dated confirmation of address change link: http://dos.sunbiz.org/pdf/00061555.pdf We request this issue be addressed by purchasing and shared with each individual Selection Committee member. This matter is significant as this discrepancy would result in 5 points per committee member for a total of 25 points being awarded to this proposer. 4). Section J. LOCATION - TIE BREAKER. ADEPT was found to be Eligible for Location Tie Breaker but indicates Broward County Tax Receipt not provided. Please see page 67 of the ADEPT Public Relations Proposal with the attached Broward County Tax Receipt and City of Fort Lauderdale Tax Receipt. Furthermore, the previous Section I. LOCAL PREFERENCE indicated ADEPT Eligible and Provided Broward County Tax Receipt. ADEPT is proud to be a Broward County Bussiness Taxpayer since 2013. Please feel free to contact me should you have any questions. Thank you, Dana On Tue, Nov 19, 2019 at 5:08 PM Calhoun, Christine Good afternoon, Attached are e‐files of the Director of Purchasing’s DRAFT Recommendation Memorandum and four supporting memoranda from the Office of Economic and Small Business Development Division, Finance and Administrative Services Division, Risk Management Division, and Office of County Attorney for your review. If any deficiencies are noted in these memoranda concerning your firm, your firm has the opportunity to make an explanation in writing via e‐mail response of those deficiencies by 5:00 PM, EST, Thursday, November 21, 2019. Your explanations will be forwarded to members of the Evaluation Committee for their review and consideration. Evaluation Committee Meeting: A Combination Initial and Final Evaluation Meeting is currently scheduled for Wednesday, December 4, 2019 at 9:00 A.M., EST in Room 430 of the Broward County Governmental Center, 115 S. Andrews Ave., Fort Lauderdale, FL 33301. Refer to the Sunshine Meeting website at https://www.broward.org/Commission/Pages/SunshineMeetings.aspx for any updates. Presentation Guidelines: At the above meeting, all firms found to be both Responsive and Responsible to the requirements of the RFP will be asked to make a presentation before the Evaluation Committee. Order of Presentations will be determined by a random drawing of the firm names. Firms will up to five minutes for setup and 15 minutes for presentation on each category proposed. Each presentation will be followed by a Question and Answer period. At least one member of your team should have the authority to bind the company as the answers may impact evaluation and scoring. Firms will be asked to provide a flash drive of the presentation. Should there be handouts, it is recommended that you provide seven copies. Firms are encouraged to use the County’s installed and dedicated audio‐visual equipment for their presentation. Firms electing to bring and use their own equipment (laptop, cables, large monitors, etc.) for their presentation are fully responsible for its good working order and timely set‐up. The County will not allot additional presentation time if technical difficulties are encountered with Vendor‐owned equipment. Note: Apple computers cause system compatibility problems; the County advises to bring PCs only. Laptop PC’s must have HDMI or VGA connection. HDMI must be regular size not mini. Requested information to be included in presentation: If your firm has proposed for multiple Categories, clearly separate your presentation by Category and address the Evaluation Criteria for the respective Category for which your firm has proposed. For each proposed price, provide a breakdown of costs, deliverables, staffing etc. as it relates to the scope of work – by Category for which your firm has proposed. Clearly indicate which team members are employees of the proposer and which are sub‐contractors Include any examples of experience that is NOT related to transportation surtax In accordance with Section 1‐266 of Broward County Ordinance No. 2001‐15, a Cone of Silence is now imposed on this RFP. Each firm conducting business with the County is required to comply with this ordinance. A copy of the ordinance can be found at http://www.broward.org/Purchasing/Documents/ConeOfSilence.pdf. 2 Exhibit 3 Page 3 of 258 In accordance with Section 286.0113 of the Florida Statutes and pursuant to Board of Commissioners direction, presentations during Evaluation Committee Meetings are closed to the public and competing vendors. Only Committee members, County staff, the Vendor and its team will be present in the meeting room during the Vendor’s presentation and subsequent question and answer period. Subconsultants partnering with multiple prime Vendors may only be present in the room for the presentation of one of the partnering Vendors. Respectfully, Christine Calhoun, CPPO, ESTJ Purchasing Manager Broward County Purchasing Division Office: (954) 357‐7998 Cell: (954) 706‐7230 www.broward.org/purchasing Customer Care is my priority. How am I doing? Please contact my Director, Brenda Billingsley, at [email protected] with feedback. Under Florida law, most e-mail messages to or from Broward County employees or officials are public records, available to any person upon request, absent an exemption. Therefore, any e-mail message to or from the County, inclusive of e-mail addresses contained therein, may be subject to public disclosure. ‐‐ Dana Pollitt Managing Partner | Adept o: 954.769.1533 | m: 954.937.9403 [email protected] | www.adept.co To help protect you r priv acy , Microsoft Office prev ented automatic download of this picture from the Internet. 3 Exhibit 3 Page 4 of 258 Calhoun, Christine From: Shira Kastan-Goldstein External Email Good Afternoon Ms. Calhoun, Pursuant to your email and memo, below please see the listed items and relevant attachments relating to deficiencies noted in the memo for our firm, ADG Strategy Group. 1) Item 1: CBE requirements: We were contacted to submit the firms that are CBE to meet the goal of this RFP and were given 3 days to submit said details. We did so. Later we were contacted again to be informed that one of the firms was not certified by the County, rather we realized they were certified by the Broward County School Board. The second CBE we submitted was said to be certified in Miami Dade and not Broward. BUT, we were only given 30 minutes to remedy that and that is impossible. We were not told that we can submit the good faith document. We understood that it is one or the other (submit the identified firms OR submit the good faith letter that you will). Our company, ADG, is a small business, but just not certified. Given an opportunity, we will find CBE firms to work with us on this project. As such, attached please find our good faith document. 2) Item 2: Billing Rate Sheet for categories 2 and 4: As it relates to being found not responsible because we did not submit a billing rate sheet for categories 2 & 4, that was only because we submitted a price for the full proposal of categories 1‐4. We were not aware that you still needed a billing rate sheet if you are proposing on all four sections. As such, please see attached billing rate sheets. 3) Items I & J relating to Local Preference and Location respectively. I am not sure why ADG was found not eligible when our business is located within the City of Cooper City in Broward County. I have attached the Business Tax Receipt for Cooper City, as well as receipts of payment for the Broward County Tax Receipt. Thank you so much. Have a great rest of the week and a Happy Thanksgiving. Thank you, Shira Shira Kastan Goldstein ADG Strategy Group (305) 781‐7310 [email protected] 1 Exhibit 3 Page 5 of 258 From: Calhoun, Christine Sent: Tuesday, November 19, 2019 5:08 PM To: '[email protected]' ; Shira Kastan‐Goldstein ; '[email protected]' ; '[email protected]' ; '[email protected]' ; '[email protected]' ; '[email protected]' ; '[email protected]' ; '[email protected]' ; '[email protected]' Cc: Chapman, Jacqueline ; McSweeney, Sean ; Garcia, Lucy ; Fleury, Teresa Subject: Draft Director of Purchasing Recommendation Memo ‐ RFP GEN2119422P1, Communication and Marketing Services To: All proposers Good afternoon, Attached are e‐files of the Director of Purchasing’s DRAFT Recommendation Memorandum and four supporting memoranda from the Office of Economic and Small Business Development Division, Finance and Administrative Services Division, Risk Management Division, and Office of County Attorney for your review. If any deficiencies are noted in these memoranda concerning your firm, your firm has the opportunity to make an explanation in writing via e‐mail response of those deficiencies by 5:00 PM, EST, Thursday, November 21, 2019. Your explanations will be forwarded to members of the Evaluation Committee for their review and consideration. Evaluation Committee Meeting: A Combination Initial and Final Evaluation Meeting is currently scheduled for Wednesday, December 4, 2019 at 9:00 A.M., EST in Room 430 of the Broward County Governmental Center, 115 S. Andrews Ave., Fort Lauderdale, FL 33301. Refer to the Sunshine Meeting website at https://www.broward.org/Commission/Pages/SunshineMeetings.aspx for any updates. Presentation Guidelines: At the above meeting, all firms found to be both Responsive and Responsible to the requirements of the RFP will be asked to make a presentation before the Evaluation Committee. Order of Presentations will be determined by a random drawing of the firm names. Firms will up to five minutes for setup and 15 minutes for presentation on each category proposed. Each presentation will be followed by a Question and Answer period. At least one member of your team should have the authority to bind the company as the answers may impact evaluation and scoring. Firms will be asked to provide a flash drive of the presentation. Should there be handouts, it is recommended that you provide seven copies. Firms are encouraged to use the County’s installed and dedicated audio‐visual equipment for their presentation. Firms electing to bring and use their own equipment (laptop, cables, large monitors, etc.) for their presentation are fully responsible for its good working order and timely set‐up. The County will not allot additional presentation time if technical difficulties are encountered with Vendor‐owned equipment. Note: Apple computers cause system compatibility problems; the County advises to bring PCs only. Laptop PC’s must have HDMI or VGA connection. HDMI must be regular size not mini. Requested information to be included in presentation: If your firm has proposed for multiple Categories, clearly separate your presentation by Category and address the Evaluation Criteria for the respective Category for which your firm has proposed. For each proposed price, provide a breakdown of costs, deliverables, staffing etc. as it relates to the scope of work – by Category for which your firm has proposed. Clearly indicate which team members are employees of the proposer and which are sub‐contractors Include any examples of experience that is NOT related to transportation surtax In accordance with Section 1‐266 of Broward County Ordinance No. 2001‐15, a Cone of Silence is now imposed on this RFP. Each firm conducting business with the County is required to comply with this ordinance. A copy of the ordinance can be found at http://www.broward.org/Purchasing/Documents/ConeOfSilence.pdf. 2 Exhibit 3 Page 6 of 258 In accordance with Section 286.0113 of the Florida Statutes and pursuant to Board of Commissioners direction, presentations during Evaluation Committee Meetings are closed to the public and competing vendors. Only Committee members, County staff, the Vendor and its team will be present in the meeting room during the Vendor’s presentation and subsequent question and answer period. Subconsultants partnering with multiple prime Vendors may only be present in the room for the presentation of one of the partnering Vendors. Respectfully, Christine Calhoun, CPPO, ESTJ Purchasing Manager Broward County Purchasing Division Office: (954) 357‐7998 Cell: (954) 706‐7230 www.broward.org/purchasing Customer Care is my priority. How am I doing? Please contact my Director, Brenda Billingsley, at [email protected] with feedback. Under Florida law, most e-mail messages to or from Broward County employees or officials are public records, available to any person upon request, absent an exemption. Therefore, any e-mail message to or from the County, inclusive of e-mail addresses contained therein, may be subject to public disclosure. 3 Exhibit 3 Page 7 of 258 Exhibit 3 Page 8 of 258 Exhibit 3 Page 9 of 258 Exhibit 3 Page 10 of 258 Exhibit 3 Page 11 of 258 Exhibit 3 Page 12 of 258 Exhibit 3 Page 13 of 258 Calhoun, Christine From: Marc Du Pain Hi Christine, Thank you for your email. I appreciate the update and opportunities you have provided to us to explain our deficiencies with regard to the RFP. As with my formal letter with regard to keeping our financials confidential, I would also like to refer to the same articles and Florida statutes with regard to the overall confidentially of our company initiatives and business practices. The included memo stated: "...the firm did not post an ad in the local newspaper or provide a description of information provided to potential CBEs regarding the plans and specifications for the work selected for subcontracting." Our business model is dependent on trade secrets, know‐how, and strategies that if publicly disclosed would be imperative to our ability as a media company and media outlet to function as a business and make money. The memo also stated: "...In addition, seven (7) bidders met or exceeded the CBE requirement for this solicitation. Section 1‐81.5 (d) (3) of the Act states: "In determining whether a Bidder has made Good Faith Efforts, the Program Director may also consider the level of CBE participation proposed by other Bidders as well as any representations made by the Bidder during the bid, proposal, or selection phases of the procurement regarding the Bidder's commitment to attain the CBE goal." Therefore, it is determined that ANCO Media Group, LLC is non‐compliant with the CBE program requirements of this solicitation." As a matter of fact, if awarded the contract we will most likely have the largest positive economic impact in Broward County and hire the most people in Broward County. Although we are not physically located in Broward county, we have a body of work that speaks for itself in terms of breadth and quality and I would like that to be the focus rather than that we don't happen to have our head office in Broward. To classify us non‐compliant based on this even though we have pledged to hire specialists in Broward would prevent the county from possibly getting the best quality and quantity of work for the budget as we have resources and know‐how that the other firms simply cannot provide. We are a real media company that would hire people to do the work locally and for them to miss out on the opportunity to work with a larger company and grow their network and resources would be a shame. We 100% intend to hire as many specialists as I can find in Broward County if awarded the contract but because of the nature of our company, our business and local competition I couldn’t publish public advertisements soliciting for such opportunities until I know we will be awarded such opportunities and we have secured the contract. Disclosing business opportunities that Anco Media, Revolution 93.5 FM, and myself as a representative are pursuing would be detrimental to our business strategy and would perhaps allow our competition to undermine our efforts or disrupt our process. 1 Exhibit 3 Page 14 of 258 We have started the process of scouting talent and intend to surpass the RFP requirements if award the contract at which point we can have secure agreements with those sub‐contractors. I pledge to you that we intend to hire almost exclusively from Broward county and will make the most positive local impact of any firm. With regard to maximum billing, We will not exceed a maximum billing rate of $75/hr (overtime rate) at 160 per quarter or a maximum billing rate for extra services of $9000/quarter. It was also stated in the proposal that: We can complete this project for $350,000 per year. The video production services will be a separate cost and can be negotiated based on billable hours after a consultation. Please let me know if this is a suitable budget and we can get started. Budget Scope of Work Start and End Dates Phase One Identifying Broward County Goals/Objectives TBD ‐ Annual Contract Phase Two Media Goals/Objectives TBD ‐ Annual Contract Phase Three Scope of Work/Tactics TBD ‐ Annual Contract Total $ 350,000.00 per year Please take this into consideration when evaluating our submission and please feel free for yourself or anyone else in your organization to contact us with any questions or concerns you may have. Kind regards, Marc DuPain To help protect y our priv acy , Microsoft Office prev ented automatic download of this picture from the Internet. Click here to schedule a free consultation Business Development Manager I WZFL/WBGF Revolution 93.5 FM Anco Media Group Miami 250 NW 23rd Street Suite 204 Miami, FL 33127 O 786.542.1880 - M 305.588.7292 Revolution935.com Click Here for a free radio advertising consultation Download app "Revolution 93.5" Confidentiality Notice: The information contained in and transmitted with this communication is strictly confidential, is intended only for the use of the intended recipient, and is the property of Revolution Radio Miami or its affiliates and subsidiaries. If you are not the intended recipient, you are 2 Exhibit 3 Page 15 of 258 hereby notified that any use of the information contained in or transmitted with the communication or dissemination, distribution, or copying of this communication is strictly prohibited by law. If you have received this communication in error, please immediately return this communication to the sender and delete the original message and any copy of it in your possession. > On Nov 19, 2019, at 5:08 PM, Calhoun, Christine 3 Exhibit 3 Page 16 of 258 Calhoun, Christine From: Tyron Barrington RE: BARRINGTON MANAGEMENT ARTIST GROUP SUBJECT: DEFICIENCIES RESPONSE LETTER ‐ RFP GEN2119422P1 Good afternoon Ms. Calhoun, Thank you for the update to RFP GEN2119422P1 (Communications and Marketing Services). As noted in your mail, we are responding to deficiencies. In the notice, we were found to be non‐compliant in regards to our CBE goal, however, we did email on November 6th, 2019, three (3) Letters of Intent (LOI) from CBE associates that we would be working with, for the full (or over) total of 30%, along with a description of the work they will perform. Please see below the names of )the three (3 CBE companies, with subcontactable opportunities that we would be using: 1. Upscale Events by Mosaic, LLC dba The Mosaic Group. DESCRIPTION of Work to be performed: VIDEO PRODUCTION. 2. The Olab Group dba Orange Lab Media. DESCRIPTION of Work to be performed: MOTION GRAPHICS & GRAPHIC DESIGNS SERVICES 3. Island Syndicate Inc. DESCRIPTION of Work to be performed: MARKETING CONSULTING SERVICES, MOTION PICTURE & VIDEO, and GRAPHIC DESIGN SERVICES The only notes we did not include on each LOI is the total sum of monies per company, or percentage to be given, that we would work with. This is because we do not know the full scope of work that would be needed for each company, until an award has been made by you, and your team. If we were to be awarded the contract (for CATEGORY 4), and being given the full campaign to be filmed, then we would divide the full thirty (30%) percent between the three (3) CBE companies, according to each level and amount of work needed to be accomplished by them. This is important to ensure that our delivery, is far above your full expectation and satisfaction. Please Note: In regards to the rate/Prices for Category 4, it is noted in the RFP that “PRICES ARE NOT REQUESTED FOR THIS ITEM”, even though we sent a sample of what some of the fees would be I trust you understand why we did not include the total fees, or percentage, for each company, in the “Work to be performed by CBE Firm”, line. I will forward the email that was sent with Letters of Intent (LOI), in a separate email, that showed the description of work to be performed by each of our CBE's. Thank you, and... Have a Blessed Day, Tyron Barrington BARRINGTON Group 1 Exhibit 3 Page 17 of 258 WEB: www.Barringtonmgt.com EMAIL: [email protected] IG: @TyBarrington Twitter: @TyronBarrington Linkedin: Tyron Barrington TEL: (646) 623-0404 On Nov 19, 2019, at 5:08 PM, Calhoun, Christine To: All proposers Good afternoon, Attached are e‐files of the Director of Purchasing’s DRAFT Recommendation Memorandum and four supporting memoranda from the Office of Economic and Small Business Development Division, Finance and Administrative Services Division, Risk Management Division, and Office of County Attorney for your review. If any deficiencies are noted in these memoranda concerning your firm, your firm has the opportunity to make an explanation in writing via e‐mail response of those deficiencies by 5:00 PM, EST, Thursday, November 21, 2019. Your explanations will be forwarded to members of the Evaluation Committee for their review and consideration. Evaluation Committee Meeting: A Combination Initial and Final Evaluation Meeting is currently scheduled for Wednesday, December 4, 2019 at 9:00 A.M., EST in Room 430 of the Broward County Governmental Center, 115 S. Andrews Ave., Fort Lauderdale, FL 33301. Refer to the Sunshine Meeting website athttps://www.broward.org/Commission/Pages/SunshineMeetings.aspx for any updates. Presentation Guidelines: At the above meeting, all firms found to be both Responsive and Responsible to the requirements of the RFP will be asked to make a presentation before the Evaluation Committee. Order of Presentations will be determined by a random drawing of the firm names. Firms will up to five minutes for setup and 15minutes for presentation on each category proposed. Each presentation will be followed by a Question and Answer period. At least one member of your team should have the authority to bind the company as the answers may impact evaluation and scoring. Firms will be asked to provide a flash drive of the presentation. Should there be handouts, it is recommended that you provide seven copies. Firms are encouraged to use the County’s installed and dedicated audio‐visual equipment for their presentation. Firms electing to bring and use their own equipment (laptop, cables, large monitors, etc.) for their presentation are fully responsible for its good working order and timely set‐up. The County will not allot additional presentation time if technical difficulties are encountered with Vendor‐owned equipment. Note: Apple computers cause system compatibility problems; the County advises to bring PCs only. Laptop PC’s must have HDMI or VGA connection. HDMI must be regular size not mini. Requested information to be included in presentation: 2 Exhibit 3 Page 18 of 258 If your firm has proposed for multiple Categories, clearly separate your presentation by Category and address the Evaluation Criteria for the respective Category for which your firm has proposed. For each proposed price, provide a breakdown of costs, deliverables, staffing etc. as it relates to the scope of work – by Category for which your firm has proposed. Clearly indicate which team members are employees of the proposer and which are sub-contractors Include any examples of experience that is NOT related to transportation surtax In accordance with Section 1‐266 of Broward County Ordinance No. 2001‐15, a Cone of Silence is now imposed on this RFP. Each firm conducting business with the County is required to comply with this ordinance. A copy of the ordinance can be found athttp://www.broward.org/Purchasing/Documents/ConeOfSilence.pdf. In accordance with Section 286.0113 of the Florida Statutes and pursuant to Board of Commissioners direction, presentations during Evaluation Committee Meetings are closed to the public and competing vendors. Only Committee members, County staff, the Vendor and its team will be present in the meeting room during the Vendor’s presentation and subsequent question and answer period. Subconsultants partnering with multiple prime Vendors may only be present in the room for the presentation of one of the partnering Vendors. Respectfully, Christine Calhoun, CPPO, ESTJ Purchasing Manager Broward County Purchasing Division Office: (954) 357‐7998 Cell: (954) 706‐7230 www.broward.org/purchasing Customer Care is my priority. How am I doing? Please contact my Director, Brenda Billingsley, [email protected] with feedback. Under Florida law, most e-mail messages to or from Broward County employees or officials are public records, available to any person upon request, absent an exemption. Therefore, any e-mail message to or from the County, inclusive of e-mail addresses contained therein, may be subject to public disclosure. 3 Exhibit 3 Page 19 of 258 Exhibit 3 Page 20 of 258 Exhibit 3 Page 21 of 258 Exhibit 3 Page 22 of 258 Calhoun, Christine From: Laurie Menekou External Email Hi Christine, Thank you for contacting me re: RFP GEN2119422P1, Communication and Marketing Services. I am following up on behalf of Conceptual Communications. 1. Page 1 of your draft memo to the Evaluation Committee states that we were non responsive to the Lobbyist Registration Certification Form. We did complete the Lobbyist Registration Certification Form and submitted it via Bid Sync. I have attached a screen shot of the preview in Bid Sync that shows all forms and documents were accepted and I have also attached the form for your records. 2. We are noted as non‐responsible to the Maximum Billing Rate Sheet requirement for Categories 2 and 4. The attached email outlines the pricing confirmation we received from Bid Sync. When we submitted our bid – Categories 2 and 4 had a note next to them “Prices are not requested for this item.” This is also indicated on the email attached. Would you like me to submit the Maximum Billing Rate Sheet for these two categories? 3. The first bullet in your email below states, “At the above meeting, all firms found to be both Responsive and Responsible to the requirements of the RFP will be asked to make a presentation before the Evaluation Committee.” Please let me know if the above two items I am following up on (maximum billing rate sheet and the lobbyist form) indicate that Conceptual Communications is both Responsive and Responsible to the requirements of the RFP and will be asked to make a presentation before the Evaluation Committee? 4. Please clarify if the total presentation time is 15 minutes, or if the total presentation time allotted is 15 min for each category totaling 1 hour if presenting on all four categories? I look forward to your response. Best Regards, 1 Exhibit 3 Page 23 of 258 From: "Calhoun, Christine" Date: Tuesday, November 19, 2019 at 5:08 PM To: "'[email protected]'" , "'[email protected]'" , "'[email protected]'" , "'[email protected]'" , Laurie Menekou , "'[email protected]'" , "'[email protected]'" , "'[email protected]'" , "'[email protected]'" , "'[email protected]'" Cc: "Chapman, Jacqueline" , "McSweeney, Sean" , "Garcia, Lucy" , "Fleury, Teresa" Subject: Draft Director of Purchasing Recommendation Memo ‐ RFP GEN2119422P1, Communication and Marketing Services To: All proposers Good afternoon, Attached are e‐files of the Director of Purchasing’s DRAFT Recommendation Memorandum and four supporting memoranda from the Office of Economic and Small Business Development Division, Finance and Administrative Services Division, Risk Management Division, and Office of County Attorney for your review. If any deficiencies are noted in these memoranda concerning your firm, your firm has the opportunity to make an explanation in writing via e‐mail response of those deficiencies by 5:00 PM, EST, Thursday, November 21, 2019. Your explanations will be forwarded to members of the Evaluation Committee for their review and consideration. Evaluation Committee Meeting: A Combination Initial and Final Evaluation Meeting is currently scheduled for Wednesday, December 4, 2019 at 9:00 A.M., EST in Room 430 of the Broward County Governmental Center, 115 S. Andrews Ave., Fort Lauderdale, FL 33301. Refer to the Sunshine Meeting website at https://www.broward.org/Commission/Pages/SunshineMeetings.aspx for any updates. Presentation Guidelines: At the above meeting, all firms found to be both Responsive and Responsible to the requirements of the RFP will be asked to make a presentation before the Evaluation Committee. Order of Presentations will be determined by a random drawing of the firm names. Firms will up to five minutes for setup and 15 minutes for presentation on each category proposed. Each presentation will be followed by a Question and Answer period. At least one member of your team should have the authority to bind the company as the answers may impact evaluation and scoring. Firms will be asked to provide a flash drive of the presentation. Should there be handouts, it is recommended that you provide seven copies. Firms are encouraged to use the County’s installed and dedicated audio‐visual equipment for their presentation. Firms electing to bring and use their own equipment (laptop, cables, large monitors, etc.) for their presentation 2 Exhibit 3 Page 24 of 258 are fully responsible for its good working order and timely set‐up. The County will not allot additional presentation time if technical difficulties are encountered with Vendor‐owned equipment. Note: Apple computers cause system compatibility problems; the County advises to bring PCs only. Laptop PC’s must have HDMI or VGA connection. HDMI must be regular size not mini. Requested information to be included in presentation: If your firm has proposed for multiple Categories, clearly separate your presentation by Category and address the Evaluation Criteria for the respective Category for which your firm has proposed. For each proposed price, provide a breakdown of costs, deliverables, staffing etc. as it relates to the scope of work – by Category for which your firm has proposed. Clearly indicate which team members are employees of the proposer and which are sub‐contractors Include any examples of experience that is NOT related to transportation surtax In accordance with Section 1‐266 of Broward County Ordinance No. 2001‐15, a Cone of Silence is now imposed on this RFP. Each firm conducting business with the County is required to comply with this ordinance. A copy of the ordinance can be found at http://www.broward.org/Purchasing/Documents/ConeOfSilence.pdf. In accordance with Section 286.0113 of the Florida Statutes and pursuant to Board of Commissioners direction, presentations during Evaluation Committee Meetings are closed to the public and competing vendors. Only Committee members, County staff, the Vendor and its team will be present in the meeting room during the Vendor’s presentation and subsequent question and answer period. Subconsultants partnering with multiple prime Vendors may only be present in the room for the presentation of one of the partnering Vendors. Respectfully, Christine Calhoun, CPPO, ESTJ Purchasing Manager Broward County Purchasing Division Office: (954) 357‐7998 Cell: (954) 706‐7230 www.broward.org/purchasing Customer Care is my priority. How am I doing? Please contact my Director, Brenda Billingsley, at [email protected] with feedback. Under Florida law, most e‐mail messages to or from Broward County employees or officials are public records, available to any person upon request, absent an exemption. Therefore, any e‐mail message to or from the County, inclusive of e‐ mail addresses contained therein, may be subject to public disclosure. 3 Exhibit 3 Page 25 of 258 Exhibit 3 Page 26 of 258 Exhibit 3 Page 27 of 258 Calhoun, Christine From: [email protected] Sent: Monday, September 9, 2019 2:45 PM To: [email protected] Subject: Offer Received - Bid GEN2119422P1 Offer(s) on Bid GEN2119422P1 Laurie Menekou - Conceptual Communications Line Item GEN2119422P1--01-01 Category 1: Branding, Media and Marketing Services Product Code Total Unit Price Qty/Unit Amount $75.00 36 / month $2700.00 Notes for Buyer Attachments The DBE/SBE Certified team at Conceptual Communications team was named the 2018 Agency of the Year by the Public Relations Society of America (PRSA). The Firm is owned and managed by Laurie Menekou, who prior to launching the firm seven-years ago, served as the Public Information Officer (PIO) for the City of Weston, FL for eight-years. Laurie and her team at Conceptual Communications currently provide the requested services outlined in the Scope of Work to the following public entities: The City of Parkland, FL The City of Wilton Manors, FL The City of Oakland Park, FL The Town of Lauderdale-By-The Sea, FL The South Florida Education Center (TMA) The Downtown Fort Lauderdale TMA The Riverwalk Water Trolley The Broward League of Cities Monroe County, FL In between Speak Up Broward Phase 1 and Phase 2, the Conceptual Communications team served as the Agency of Record for the Broward MPO for 18-months providing social media services. Laurie and her team at Conceptual Communications currently provide the requested services outlined in the Scope of Work to the following clients in the nonprofit and private sectors: The YMCA of South Florida The Coral Springs Museum of Art Legal Aid Services of Broward County Victory Living Programs PharMerica All Saints Episcopal Church First Presbyterian Church of Fort Lauderdale 1 Exhibit 3 Page 28 of 258 GEN2119422P1--01-02 Category 2: Crisis Communication Services Product Code Prices are not requested for this item. Notes for Buyer Attachments Prior to the March for Our Lives event in Parkland, the City of Parkland retained Conceptual Communications to provide Crisis Communications Services. At the conclusion of that one-year contract, the City has retained Conceptual Communications to continue to provide crisis communications services as needed. The DBE/SBE Certified team at Conceptual Communications team was named the 2018 Agency of the Year by the Public Relations Society of America (PRSA). The Firm is owned and managed by Laurie Menekou, who prior to launching the firm seven-years ago, served as the Public Information Officer (PIO) for the City of Weston, FL for eight-years. Laurie and the team at Conceptual Communications currently provide crisis communications services to the the following public entities: The City of Parkland, FL The City of Wilton Manors, FL The City of Oakland Park, FL The Downtown Fort Lauderdale TMA The Riverwalk Water Trolley GEN2119422P1--01-03 Category 3: Digital Content Delivery Services Product Code Total Unit Price Qty/Unit Amount $65.00 36 / month $2340.00 Notes for Buyer Attachments The DBE/SBE Certified team at Conceptual Communications team was named the 2018 Agency of the Year by the Public Relations Society of America (PRSA). The Firm is owned and managed by Laurie Menekou, who prior to launching the firm seven-years ago, served as the Public Information Officer (PIO) for the City of Weston, FL for eight-years. Laurie and her team at Conceptual Communications currently provide the requested services outlined in the Scope of Work to the following public entities: The City of Parkland, FL The City of Wilton Manors, FL The City of Oakland Park, FL The Town of Lauderdale-By-The Sea, FL The South Florida Education Center (TMA) The Downtown Fort Lauderdale TMA The Riverwalk Water Trolley The Broward League of Cities In between Speak Up Broward Phase 1 and Phase 2, the Conceptual Communications team served as the Agency of Record for the Broward MPO for 18-months providing social media services. Laurie and her team at Conceptual Communications currently provide the requested services outlined in the Scope of Work to the following clients in the nonprofit and private sectors: The YMCA of South Florida The Coral Springs Museum of Art Victory Living Programs PharMerica All Saints Episcopal Church First Presbyterian Church of Fort Lauderdale 2 Exhibit 3 Page 29 of 258 GEN2119422P1--01-04 Category 4: Video Scripting and Production Product Code Prices are not requested for this item. Notes for Buyer Attachments The DBE/SBE Certified team at Conceptual Communications team was named the 2018 Agency of the Year by the Public Relations Society of America (PRSA). The Firm is owned and managed by Laurie Menekou, who prior to launching the firm seven-years ago, served as the Public Information Officer (PIO) for the City of Weston, FL for eight-years. Laurie and her team at Conceptual Communications currently provide the requested services outlined in the Scope of Work to the following public entities: The City of Parkland, FL The City of Wilton Manors, FL The Town of Lauderdale-By-The Sea, FL The Downtown Fort Lauderdale TMA The Broward League of Cities Laurie and her team at Conceptual Communications currently provide the requested services outlined in the Scope of Work to the following clients in the nonprofit and private sectors: Victory Living Programs PharMerica All Saints Episcopal Church First Presbyterian Church of Fort Lauderdale Bid Notes: - These notes apply to the bid as a whole. Bid Attachments: - These attachments apply to the bid as a whole. To change your notification options, please do the following: 1. Log into the BidSync system. 2. Click the "Tools" tab on the top menu. 3. Click the "My Info" link on the submenu. 4. On the "My Info" page, scroll down to the "Notifications" section and click the "Change notification settings" link. 5. Edit your notification settings, and then click the "Save" button. BidSync (www.bidsync.com) 629 Quality Drive, Suite 101 American Fork, UT 84003 Copyright © 1999-2018 - BidSync - All rights reserved. To help protect your privacy, Microsoft Office prevented au tomatic download of this picture from the Internet. 3 11/20/2019 Lobbyist Registration Requirement Certification Form Exhibit 3 Page 30 of 258 LOBBYIST REGISTRATION REQUIREMENT CERTIFICATION FORM The completed form should be submitted with the solicitation response but must be submitted within three business days of County’s request. Vendor may be deemed non-responsive for failure to fully comply within stated timeframes. The Vendor certifies that it understands if it has retained a lobbyist(s) to lobby in connection with a competitive solicitation, it shall be deemed non-responsive unless the firm, in responding to the competitive solicitation, certifies that each lobbyist retained has timely filed the registration or amended registration required under Broward County Lobbyist Registration Act, Section 1-262, Broward County Code of Ordinances; and it understands that if, after awarding a contract in connection with the solicitation, the County learns that the certification was erroneous, and upon investigation determines that the error was willful or intentional on the part of the Vendor, the County may, on that basis, exercise any contractual right to terminate the contract for convenience. The Vendor hereby certifies that: (select one) It has not retained a lobbyist(s) to lobby in connection with this competitive solicitation; however, if retained after the solicitation, the County will be notified. It has retained a lobbyist(s) to lobby in connection with this competitive solicitation and certified that each lobbyist retained has timely filed the registration or amended registration required under Broward County Lobbyist Registration Act, Section 1-262, Broward County Code of Ordinances. It is a requirement of this solicitation that the names of any and all lobbyists retained to lobby in connection with this solicitation be listed below: Name of Lobbyist: Lobbyist’s Firm: Phone: E-mail: Name of Lobbyist: Lobbyist’s Firm: Phone: E-mail: Authorized Signature/Name: Laurie Menekou Date: September 9, 2019 Title: Owner Vendor Name: Conceptual Communications https://www.bidsync.com/DPXViewer/Lobbyist_Registration_Requirement_Certification_Form.htm?ac=supresponse&auc=2046145&docid=6426551 1/1 Exhibit 3 Page 31 of 258 Exhibit 3 Page 32 of 258 Calhoun, Christine From: Rick Asnani External Email Ms. Calhoun, Thank you for providing me an opportunity to address the litigation issue brought to your attention by one of the competitors, Adept Public Relations, LLC regarding my company. It was my understanding from reading the documents that the disclosure was for any litigation in Broward County. The issue that was brought to your attention is an ongoing case in Palm Beach County. Second, the statements made by Adept about this case are highly inflammatory and grossly inaccurate. The case involves NO connection to any accusations of “corruption, transparency, and accountability in local government” in Palm Beach County or anyplace else for that matter. Since they took the time to research my company I wish they had also taken the time to properly research the case. Our firm handled a direct mail piece for a Political Committee in a campaign in March 2018. The candidate that lost sued the committee and since we did the mailer for them they sued our company also. The litigation has nothing to do with any work involiving any government or public agency. The case has been about whether a public official running for re- election was defamed by a mailer. There have been no accusations in the lawsuit of any of the statements mentioned by Adept. The case has not been tried yet because our client and our firm have jointly claimed that the lawsuit is a strategic attempt to use the courts to suppress free speech. Recently, an appeals court senior Judge agreed with our statements and wrote an opinion in our favor but didn’t rule on the case due to jurisdictional conflicts. The case was re-sent back to the circuit court and refiled for summary judgement for a dismissal. In support of our position, the First Amendment Foundation, which represent the Florida Press Association, agreed with us. As of November 26, 2009 the circuit court Judge ordered a re-hearing on this matter saying that there was evidence to warrant a review that this could be a frivolous lawsuit against my company. For further information, I have provided the documents filed in court and available as public record. There has been no judgment made on the merits of the defamation case against our client our firm. I did not believe that this lawsuit, located outside Broward County, warranted disclosure since it is with a private campaign not a public agency and in this case the work was not similar to what the scope of the RFP are that we bid for. There was nothing to hide since this case is both public record and has been going on for over one year and also has been written about in the press. Should you request or believe we need to disclose this we would gladly fill out the information form again properly. We didn’t believe we were required to list this in the disclosure history form. Please let me know if we need to correct that. Again, thank for allowing us to clarify the completely inaccurate statements made by Adept in suggesting allegations that are nowhere to be found against our firm. They are incredibly misleading. Please confirm receipt of this email and let me know if there is anything further you need from me. 1 Exhibit 3 Page 33 of 258 Thanks, Rick From: Calhoun, Christine In response to the Draft Director of Purchasing Recommendation Memorandum and supporting memos attached (Draft Director…Outlook), one of the proposing firms, Adept Public Relations, LLC, provided the Purchasing Division with the information attached (AdeptPublicRelations…pdf). Please advise if your firm has a response to the information regarding the solicitation requirement for RESPONSIBILITY INFORMATION Number 3. Disclosure of Litigation History. For your review, I’ve attached the Litigation History Form received with your proposal. The Evaluation Committee will be provided with the attached information received from Adept Public Relations, LLC. as well as any additional information received from your firm. Please be reminded the Cone of Silence is in effect for this solicitation. Thank you, Christine Calhoun, CPPO, ESTJ Purchasing Manager Broward County Purchasing Division Office: (954) 357‐7998 Cell: (954) 706‐7230 www.broward.org/purchasing Customer Care is my priority. How am I doing? Please contact my Director, Brenda Billingsley, at [email protected] with feedback. Under Florida law, most e-mail messages to or from Broward County employees or officials are public records, available to any person upon request, absent an exemption. Therefore, any e-mail message to or from the County, inclusive of e-mail addresses contained therein, may be subject to public disclosure. 2 Exhibit 3 Page 34 of 258 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIRCUIT CIVIL DIVISION AE CASE NO. 50-2018-CA-012422-XXXX-MB SHARON MATERIO, Plaintiff/Petitioner vs. WPB RESIDENTS FOR INTEGRITY IN GOVERNMEN INC, CORNERSTONE SOLUTIONS FLORIDA LLC, PRADEEP ASNANI, Defendant/Respondents. ______/ ORDER GRANTING JOINT MOTION FOR RECONSIDERATION This matter came before the Court on Defendants, WPB Residents for Integrity in Government, Inc., Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani’s Joint Motion for Reconsideration of March 6, 2019 Order on Anti-Slapp Motions. The Court has reviewed the Defendants’ Joint Motion and concludes that good cause exists to reconsider the March 6, 2019 Order. Therefore, upon consideration, it is hereby, ORDERED AND ADJUDGED that Defendants, WPB Residents for Integrity in Government, Inc., Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani’s Joint Motion for Reconsideration of March 6, 2019 Order on Anti-Slapp Motions is GRANTED. The Court will rehear the issues addressed in the March 6, 2019 Order. Specifically, the Court will hear argument on whether the case should be dismissed or summary judgment should be granted in the case pursuant to § 768.295, Florida Statutes. The parties may schedule a one-hour hearing for this purpose utilizing the Court’s on-line scheduling protocol. DONE AND ORDERED, in West Palm Beach, Palm Beach County, Florida this 26th day of November, 2019. Page 1 of 2 Exhibit 3 Case No. 50-2018-CA-012422-XXXX-MB Page 35 of 258 COPIES TO: DIANE NIXON No Address Available [email protected] FRANK A SHEPHERD No Address Available frank.shepherd@gray- robinson.com elena.pathman@gray- robinson.com JEFFREY SCHACKNOW, No Address Available [email protected] ESQ. JOHN M. SIRACUSA, ESQ. No Address Available [email protected] JOSEPH W. JANSSEN III 120 SOUTH OLIVE AVE [email protected] SUITE 504 [email protected] WEST PALM BEACH, FL [email protected] 33401 LEONARD SCOTT FEUER 240 10TH ST LFEUER@FEUERLAWFIRM. WEST PALM BEACH, FL COM 33401 [email protected] MARK G. KEEGAN 120 SOUTH OLIVE AVE [email protected] SUITE 504 [email protected] WEST PALM BEACH, FL [email protected] 33401 SETH J WELNER No Address Available [email protected] [email protected] WILLIAM N. SHEPHERD 222 LAKEVIEW AVE WILLIAM.SHEPHERD@HKL SUITE 1000 AW.COM WEST PALM BEACH, FL [email protected] 33401 Page 2 of 2 Filing # 98938233 E-Filed 11/15/2019 10:50:31 AM Exhibit 3 Page 36 of 258 Exhibit 3 Page 37 of 258 Exhibit 3 Page 38 of 258 Exhibit 3 Page 39 of 258 Exhibit 3 Page 40 of 258 Exhibit 3 Page 41 of 258 Exhibit 3 Page 42 of 258 Exhibit 3 Page 43 of 258 Exhibit 3 Page 44 of 258 Exhibit 3 Page 45 of 258 Exhibit 3 Page 46 of 258 Exhibit 3 Page 47 of 258 Filing # 98575713 E-Filed 11/07/2019 06:15:00 PM Exhibit 3 Page 48 of 258 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502018CA012422XXXXMB DIVISION: AE SHARON “SHANON” MATERIO, Plaintiff, v. WPB RESIDENTS FOR INTEGRITY, IN GOVERNMENT, INC., CORNERSTONE SOLUTIONS FLORIDA, LLC and PRADEEP ASNANI a/k/a RICK ASNANI, Defendants. / JOINT MOTION FOR RECONSIDERATION OF MARCH 6, 2019 ORDER ON ANTI- SLAPP MOTIONS GIVEN JUDICIAL FINDING THAT PLAINTIFF’S SUIT IS MERITLESS AND BARRED BY THE ANTI-SLAPP STATUTE Defendants, WPB Residents for Integrity in Government, Inc. (“WPB Residents”), Cornerstone Solutions Florida, LLC (“Cornerstone”) and Pradeep Asnani a/k/a Rick Asnani (“Asnani”) (collectively, “Defendants”), respectfully request that this Court reconsider its March 6, 2019 order denying their Anti-SLAPP motions to dismiss and/or for summary judgment (the “Anti-SLAPP Order”). In support, Defendants state: I. Introduction This Court previously entered an order denying the Defendants’ motions to dismiss and/or for summary judgment brought under § 768.295, Florida Statutes (the “Anti-SLAPP Motions”). The Court, at that time, was persuaded by an argument advanced by Plaintiff that the Anti-SLAPP statute was in derogation of the common law and therefore must be strictly construed. The Court therefore strictly construed the “other similar work” language contained within the Anti-SLAPP Exhibit 3 Page 49 of 258 statute to find that the Defendants’ mailer was not a form of communication covered under the Anti-SLAPP law. Plaintiff’s argument, however, was incorrect. And because the argument was incorrect, Ms. Materio invited this Court to narrowly construe a statute that the law required it to liberally construe. The Plaintiff’s flawed argument was recently highlighted in a special concurring opinion issued in the Fourth District Court of Appeal last week. Though the Fourth District ultimately denied certiorari relief for jurisdictional reasons,1 Judge Gross, with respect to Plaintiff’s flawed argument, found that the Court’s “strict and narrow construction was improperly imposed on a remedial statute.” See WPB Residents for Integrity in Gov't, Inc. v. Materio, No. 4D19-967, 2019 WL 5588755, at *1, *5-*9 (Fla. 4th DCA Oct. 30, 2019) (Gross, J., specially concurring) (emphasis added). Judge Gross continued: “[t]he Anti- SLAPP statute squarely fits the definition of a remedial statute because it gives a SLAPP target a remedy for a wrong (early dismissal of a SLAPP) where none existed before.” Judge Gross further stated that “if an interlocutory appeal were available to the petitioners, they would be successful in reversing the circuit court’s order.” Id. at *5 (emphasis added). Ultimately, the narrow construction of the statute lead to what Defendants’ respectfully submit was a misapplication of expressio unius est exclusio alterius when the Court concluded that the Anti-SLAPP statute did not apply to the mailer. See, id. *7 (“The trial court erred in two respects in construing section 768.295. First, the strict and narrow construction was improperly imposed on a remedial statute. 1 The Fourth District majority opinion on certiorari jurisdiction certified conflict with the Second District Court of Appeal’s decision in Gundel v. AV Homes, Inc., 264 So. 3d 304, 306 (Fla. 2d DCA 2019), the only other appellate decision in the state addressing the issues raised in the Anti- SLAPP Motions. In certifying conflict, the Fourth District invited the Florida Supreme Court to change the rule on certiorari jurisdiction because of the legislature’s intent to protect SLAPP-suit victims from continued litigation. However, that process, including a likely remand back to the Fourth District, will continue to burden the defendants for more than a year with what the special concurrence called a suit “without merit.” 2 #71324771_v1 Exhibit 3 Page 50 of 258 Second, the court misapplied the doctrine of expressio unius est exclusio alterius to construe the statute.”). For these reasons, Defendants’ respectfully request that the Court reconsider its Anti- SLAPP Order, apply SLAPP, and then dismiss Ms. Materio’s action as a meritless SLAPP suit. II. This Court Can Reconsider Its Prior Orders at Any Time. Notwithstanding the technical appellate conflict, this Court continues to retain jurisdiction over this matter and may appropriately resolve the substantive issues. See Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 158 (Fla. 4th DCA 1996) (denial of a certiorari petition is not res judicata as to the issues raised in the petition for certiorari.). Additionally, this Court has the inherent authority to reconsider nonfinal orders at any time. Seigler v. Bell, 148 So. 3d 473, 478– 79 (Fla. 5th DCA 2014) (“Motions for ‘reconsideration’ apply to nonfinal, interlocutory orders, and are based on a trial court's ‘inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action ....”); see also Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (same); Monte Campbell Crane Co., Inc. v. Hancock, 510 So. 2d 1104, 1105–06 (Fla. 4th DCA 1987) (same). This is true even where, as here, the prior nonfinal order was issued by a predecessor judge. See Berg v. Young, 175 So. 3d 863, 867 n.1 (Fla. 4th DCA 2015) (noting that a “successor trial judge was free to revisit during the proceedings . . . the findings of fact and conclusions of law made by the initial trial judge . . .”) (internal quotations omitted). Here, reconsideration is warranted for the reasons stated above, and because Judge Gross’s special concurrence is now the only appellate opinion in the state specifically addressing the “other similar works” catch-all included within the Anti-SLAPP statute. It is therefore persuasive authority that this Court did not have the benefit of reviewing prior to issuing the Anti-SLAPP Order. Notable, too, is that Gundel v. AV Homes, Inc., 264 So. 3d 304, 306 (Fla. 2d DCA 2019) was not released until the day after the hearing on the Anti-SLAPP Motions. Though Defendants 3 #71324771_v1 Exhibit 3 Page 51 of 258 submitted Gundel to the Court under a notice of supplemental authority, and Gundel is cited in the Anti-SLAPP Order for a limited proposition, the Court did not have the benefit of hearing argument on that opinion and why its application of the Anti-SLAPP statute to a handbill supported the application of the Anti-SLAPP statute here for a mailer. Reconsideration is especially warranted given Ms. Materio’s lawyers’ recent statement to the media: Mrs. Materio looks forward to a jury of her peers deciding her claims against the Asnani defendants and to obtaining full discovery, including videotaped depositions under oath, of the original source(s) of all funding obtained by the Asnani defendants to wage a targeted political assassination of Mrs. Materio’s 2018 reelection bid for the West Palm Beach City Commission See Court Denies Political Consultant’s Move to Kill Shanon Materio Suit Over Campaign Flyer, T. Doris, Palm Beach Post (Nov. 5, 2019) (emphasis added). If believed, this statement demonstrates that the true motives behind Ms. Materio’s lawsuit violate the essence of national Anti-SLAPP policy and the intent of the Florida Anti-SLAPP statute. Of course, discovery regarding funding for political speech is irrelevant, does not support any element of Plaintiff’s defamation suit, and serves to underscore why Ms. Materio’s claim is a paradigmatic SLAPP suit – silencing those who would speak against her. Finally, reconsideration is called for here to prevent a small business owner and his co- Defendants from expending significant time and resources defending a meritless suit; indeed, the Anti-SLAPP statute exists solely to prevent this from happening: The longer [Anti-SLAPP] suits linger, the greater the expense and interruption of the lives of the targets, the greater the threat of financial liability, and the greater the chill on the exercise of constitutional rights. When meritless lawsuits are not ‘expeditiously disposed of,’ the SLAPP target will suffer precisely the sort of harm that the statute was designed to prevent. 4 #71324771_v1 Exhibit 3 Page 52 of 258 Materio, 2019 WL 5588755, at *5. Continuing to litigate this case in the appellate courts while this Court has both the ability and the guidance from the Fourth District to end this SLAPP suit expeditiously is entirely contrary to the legislative intent of the Anti-SLAPP statute. Thus, Defendants respectfully request reconsideration of the Anti-SLAPP Order, and a dismissal of this SLAPP suit, because: (1) the recent opinions from Gundel and the Fourth DCA clarify the scope of the Anti-SLAPP statute and demonstrate its application here; (2) the Anti- SLAPP statute is not in derogation of the common law and in any event is remedial and therefore subject to a liberal construction; and (3) Plaintiff’s underlying defamation suit is meritless as further demonstrated by Ms. Materio’s lawyers’ recent statements to the media, and allowing it to continue greatly harms the Defendants. Finally, this Court now has the benefit of more complete briefing on many of these issues as reflected in the attached appellate filings (see Composite Exhibit “A,” attaching all appellate briefs, including the brief of the Amici Curiae which shed light on the broad policy reasons for applying the SLAPP statute here). III. Recent Authority Supports Application of the Anti-SLAPP Statute Here A. Judge Gross’s Concurring Opinion After many months on appeal, Judge Gross authored a special concurrence in support of Defendants’ interpretation of the Anti-SLAPP statute; that concurring opinion is now the only appellate opinion in the state offering an in-depth analysis of Anti-SLAPP and its list of enumerated communications. Because Judge Gross’s opinion stands alone in this regard, it warrants careful consideration despite being offered as a special concurrence in an otherwise jurisdictional dismissal of the appeal. As articulated by one Court: As the majority opinion states, concurring opinions have no precedential “authority.” However, because individual opinions of a judge often search the rationale, scope and applicability of legal rules, principles and standards and offer analysis and proposals helpful for improvement of the body of the law and for the understanding and help of the bench and bar concerned with similar questions, they 5 #71324771_v1 Exhibit 3 Page 53 of 258 often serve the second, higher and more noble purpose of an appellate opinion and therefore have value. This is apparent from the frequency that both special concurring and dissenting opinions are cited in the reported cases. Left free, common law trial judges instinctively accept and use the best reasoning available because it most consistently leads to the best, most legally correct and just result under a rule of law based on reason rather than authority. Legal reasoning, when based on experience, logic and common sense, can be so obviously valid, as to be convincing, persuasive and even compelling, and when so, it does not need the authority of a majority. Dunn v. State, 454 So. 2d 641, 650 (Fla. 5th DCA 1984) (Cowart, J., concurring specially) (emphasis added). This Court can therefore consider the special concurrence in connection with this motion for reconsideration, and conclude that the Anti-SLAPP Motions were due to be granted. Significantly, Judge Gross concluded that the narrow construction of the Anti-SLAPP statute, as Plaintiff advocated, was a “fundamental interpretative error” that “effectively stripped the [Anti-SLAPP] statute of the protections it was designed to implement.” Materio, 2019 WL 5588755, at *6 (J. Gross, concurring). Judge Gross further concluded that the “defendants were entitled to . . .a finding that Materio’s lawsuit was a SLAPP.” Id. at *9. These conclusions were reached only after Judge Gross performed an exhaustive statutory analysis, ultimately agreeing with Defendants that the Anti-SLAPP statute is remedial in nature and, accordingly, must be liberally construed regardless of whether it is in derogation of the common law. Id. at *7 (“The Anti-SLAPP statute squarely fits the definition of a remedial statute because it gives a SLAPP target a remedy for a wrong (early dismissal of a SLAPP) where none existed before.”); see also Irven v. Dep’t of Health & Rehab. Services, 790 So. 2d 403, 406 (Fla. 2001) (“When a statute is both in derogation of the common law and remedial in nature, the rule of strict construction should not be applied so as to frustrate the legislative intent. The statute 6 #71324771_v1 Exhibit 3 Page 54 of 258 should be construed liberally in order to give effect to the legislation.”) (emphasis added). At the hearing on the Anti-SLAPP Motions, Plaintiff argued the opposite in error: So by the pure application of all of the cases that have told us -- we read statutes as written. We're not allowed to read words into them. When we're dealing with a narrowly construed statute in derogation of common law, we don't expand what's in there. We restrict it to what the legislature said, Your Honor. January 31, 2019 Transcript of Hearing on Defendants’ Motions, pgs. 67. Plaintiff therefore led the Court to error when it argued for a strict construction of the statute. Had the Court applied the more liberal standard necessarily afforded remedial statutes, it would have concluded, as Judge Gross did, that the mailer was protected activity under Anti- SLAPP. Materio, 2019 WL 5588755, at *7. Additionally, Judge Gross agreed with Defendants that the narrow interpretative construction offered by Ms. Materio, which relied on expressio unius est exclusio alteriusto effectively read “other similar work” out of the Anti-SLAPP statute. See id. at *7 (“The plain language of the statute reveals that the trial court also erroneously applied the expressio unius doctrine. Where, as here, a statute contains a broad catchall provision at the end of a list of specific items, the Legislature did not intend to restrict the statute’s applicability to those items found on the list. To interpret the statute as excluding any work that is not on the list would be to ignore the Legislature’s chosen words and render the second catchall (“or other similar works”) as surplusage.”). With light shed on this “fundamental interpretive error,” the Court has the opportunity now to reconsider its previous Anti-SLAPP Order and apply the correct statutory construction. B. Gundel v. AV Homes Judge Gross’ Special Concurrence, finding that Anti-SLAPP applies to the mailer circulated by the Defendants, fits squarely with the Second District’s decision in Gundel v. AV 7 #71324771_v1 Exhibit 3 Page 55 of 258 Homes, Inc., et al. reaching a similar conclusion on a handbill. The Gundel decision was released after the parties had fully briefed and argued the Anti-SLAPP Motions. With the benefit of Gundel as binding authority, the Court could have evaluated whether the Gundel court’s application of Anti-SLAPP to a mode of communication not enumerated on the Anti-SLAPP list, such as the handbill there, is directly analogous to the instant case where the Defendants’ mailer is not enumerated on the Anti-SLAPP list but still deserving of Anti-SLAPP protection. Tellingly, then, the only two appellate opinions in Florida to evaluate the application of Anti-SLAPP have both concluded that Anti-SLAPP should cover modes of communications not enumerated within the statute. This Court should reconsider its previous Anti-SLAPP Order to coincide with this precedent. IV. Plaintiff Advocated Invalid Law to Mislead This Court to Construe Anti-SLAPP Narrowly. Although the remedial nature of Anti-SLAPP means it is inconsequential whether Anti- SLAPP is in derogation of the common law (because, as observed by Judge Gross, remedial statutes must be construed broadly), Anti-SLAPP is not, in fact, actually in derogation of the common law. This Court was led to draw that incorrect conclusion by relying on a line of cases, Ballard v, Curatolo, 363 So. 2d 864, 865 (Fla. 4th DCA 1979) and Green v. Broward General Medical Center, 456 So. 2d 877 (Fla. 4th DCA 1978), put forth by the Plaintiff that analyze a section of Chapter 768 of Florida Statutes dealing with medical malpractice pre-suit mediation panels. Plaintiff used the similarities in names between those medical malpractice statutory sections and that of Anti-SLAPP (which is also found in Chapter 768) to mislead the court that they are aligned. This is incorrect. While Plaintiff is right that those cases stand for the proposition that the medical malpractice pre-suit mediation panels were in derogation of the common law because they 8 #71324771_v1 Exhibit 3 Page 56 of 258 prevented plaintiffs from accessing the courts, not only does this law have nothing to do with Anti- SLAPP,2 but those statutes have all been repealed. See Composite Exhibit “A”, Cornerstone/Asnani Petition for Writ of Certiorari at p. 21-24 (providing fuller briefing of why Plaintiff’s reliance on these medical malpractice cases is fundamentally flawed). As such, besides having no application outside of the medical malpractice pre-suit mediation context, these cases are no longer valid law; Plaintiff’s reliance on them to convince this Court to narrowly construe Anti-SLAPP is disingenuous. V. This Court Now Has Benefit of First Amendment Policy Insights from Amici Curiae In addition to the controlling precedent from Gundel and the authoritative guidance from Judge Gross’s special concurrence, this Court now also has the benefit of the brief of the Amici Curiae that supported Defendants’ certiorari petition at the Fourth DCA. The Amici represent a broad base of public and political opinion, as well as the state’s leading First Amendment advocacy group that has worked to defend rights of free speech from abusive challenges, like the instant suit by Plaintiff. See Comp. Ex. A. VI. Plaintiff’s Suit is Meritless Having found that Anti-SLAPP applies to the communications at issue, Judge Gross went one step further than this Court and for the first time adjudged the merits of Plaintiff’s underlying defamation suit. In doing so, Judge Gross found Plaintiff could not meet her burden of showing Defendants acted with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (public official prohibited for recovering for defamation claim unless can prove statement made with “actual malice—that is, with knowledge that it was false or with reckless disregard of 2 In fact, we are litigating these issues before the Court right now, so Plaintiff, unlike the plaintiffs in the medical malpractice pre-suit mediation cases, has not been denied access to the courts. 9 #71324771_v1 Exhibit 3 Page 57 of 258 whether it was false or not.”); Miles Marker, Inc. v. Petersen Publ’g, L.L.C., 811 So. 2d 841, 847 (Fla. 4th DCA 2002) (applying “actual malice” standard). In Judge Gross’s words, “[t]he statements made in the mailer could be fairly drawn from public records. The mailer cites to those records, so an interested person might examine those records for accuracy.” Id. at *8; See Dockery v. Fla. Democratic Party, 799 So. 2d 291, 296 (Fla. 2d DCA 2001) (“Reliance upon a reliable source insulates a defendant from a finding of actual malice as a matter of law.”). Even beyond the public documents, the Plaintiff put before this Court an internal memorandum from the State Attorney’s Office which she unveiled for the first time at the hearing before this Court on the Anti-SLAP Motions. That memorandum unequivocally shows that the Defendants acted prudently in making the statements in the mailer, that the underlying materials had been reviewed by the State Attorney Public Corruption Unit, and that law enforcement believed Plaintiff “should be investigated” for state and federal crimes. The Plaintiff’s misrepresentation of the substance of the memo directly refutes her claims and deserves greater attention from the Court. That memorandum is attached as Exhibit “B”. Accordingly, with the full weight of the record, Judge Gross concluded that Plaintiff’s lawsuit is meritless and stated: A careful review of the record leads to the conclusion that Materio did not present sufficient record evidence to establish a genuine issue of material fact that would allow a jury to find by clear and convincing evidence that the defendants acted with actual malice. Public records provided the defendants with a good faith basis to believe the truth of the statements made in the mailer. Materio brought forth no facts that the defendants knew otherwise. For that reason, Materio failed to establish that her defamation claim was meritorious and the defendants were entitled to summary judgment and a finding that Materio's lawsuit was a SLAPP, prohibited by section 768.295, Florida Statutes. Materio, 2019 WL 5588755, at *9. 10 #71324771_v1 Exhibit 3 Page 58 of 258 VII. Conclusion This Court was previously misled by Plaintiff’s incorrect statutory interpretation. Now, with the benefit of new authority and guidance, this Court should reconsider its previous ruling, apply the correct statutory analysis, and align itself with Florida precedent. The Defendants stand ready for an expeditious hearing on this Motion if the Court so requests. WHEREFORE, Defendants respectfully request that this Court reconsider its Anti- SLAPP Order, enter a new order finding that Anti-SLAPP applies to the communications at issue, and dismiss the Plaintiff’s SLAPP suit. Dated: November 7, 2019. Respectfully submitted, HOLLAND & KNIGHT LLP LEONARD FEUER, P.A. Counsel for Defendants Cornerstone Counsel for Defendant WPB Residents for Solutions Florida, LLC and Integrity in Government, Inc. Pradeep Asnani a/k/a Rick Asnani 240 10th Street 222 Lakeview Avenue, Suite 1000 West Palm Beach, FL 33401 West Palm Beach, Florida 33401 T: 561.659.1360 T: 561.833.2000 F: 561.249.4100 F: 561.650-8399 /s/ William N. Shepherd /s/ Leonard Feuer William N. Shepherd, Esq. Leonard Feuer, Esq. Florida Bar Number: 88668 Florida Bar Number: 501751 [email protected] [email protected] Seth J. Welner, Esq. Florida Bar Number: 99214 [email protected] 11 #71324771_v1 Exhibit 3 Page 59 of 258 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of November, 2019, I electronically filed the foregoing with the Clerk of the Court via the Florida Courts E-Filing Portal System and that a true and correct copy has been served via transmission of Notices of Electronic Filing generated by the ePortal System or by some other authorized manner pursuant to the following Service List: /s/ William N. Shepherd William N. Shepherd, Esq. SERVICE LIST Joseph W. Janssen, III, Esq. Leonard Feuer, Esq. John M. Siracusa, Esq. LEONARD FEUER, P.A. Mark G. Keegan, Esq. 240 10th Street JANSSEN, SIRACUSA & KEEGAN PLLC West Palm Beach, Florida 33401 120 South Olive Avenue, Suite 504 T: 561.659.1360 West Palm Beach, Florida 33401 Email: [email protected] T: 561.420.0583 Counsel for Defendant WPB Residents for F: 561.420.0576 Integrity in Government, Inc. Email: [email protected] Email: [email protected] Email: [email protected] Counsel for Plaintiff 12 #71324771_v1 Exhibit 3 Page 60 of 258 Composite Exhibit “A” Composite Exhibit “A” Filing # 87513437 E-Filed 04/04/2019 10:48:17 PM Exhibit 3 Page 61 of 258 IN THE FOURTH DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA CASE NO. 4D19-_____ WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC., Petitioner, vs. SHARON “SHANON” MATERIO, Respondent. ON CERTIORARI REVIEW FROM THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA, LOWER COURT CASE NO. 502018CA012422 PETITION FOR WRIT OF CERTIORARI LEONARD FEUER, P.A. Leonard Feuer, Esq. Fla. Bar No. 501751 [email protected] Attorney for Petitioner 240 10th Street West Palm Beach, FL 33401 Tel: (561) 659-1360 | Fax: (561) 249-4100 Exhibit 3 Page 62 of 258 PETITION FOR WRIT OF CERTIORARI WPB Residents For Integrity in Government, Inc.1, seeks certiorari review of the denial of its Motion to Dismiss / Summary Judgment filed pursuant to Florida’s Anti-SLAPP law, Fla. Stat. § 768.295 (2018).2 (App. 4, 15.) Petitioner is a Florida Corporation and an Electioneering Communication organization, pursuant to Fla. St. § 106.011(9). Respondent, Sharon “Shanon” Materio,3 was once a multi-term elected official in the City of West Palm Beach. During the course of her last election, Petitioner exercised its First Amendment right to scrutinize a public figure by sending a direct mailer, asserting facts solely derived from government records. In direct response, Materio sued Petitioner for defamation per se and conspiracy to defame. (App. 269.) Materio’s Complaint, which failed to include the mailer as an attachment, also failed to allege any facts supporting a finding of actual malice.4 (App. 269-76; 38; 13.) 1 Henceforth referred to as “WPB Residents” or “Petitioner.” 2 The term “SLAPP” stands for Strategic Lawsuits Against Public Participation. Henceforth referred to as “Florida’s Act” or “the Act.” 3 Henceforth referred to as “Materio” or “Respondent.” 4 Green v. Times Pub. Co., 130 So.3d 724, 728-29 (Fla. 3d DCA 2014) (“‘Actual malice’ is . . . a rigorous standard for pleading purposes, as well as for proof.”); Michel v. NYP Holdings, Inc., 816 F.3d 686, 702–03 (11th Cir. 2016) (“To plead actual malice [a plaintiff] must allege facts sufficient to give rise to a reasonable inference that the false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”) Exhibit 3 Page 63 of 258 Petitioner filed a Motion to Dismiss / Summary Judgment, pursuant to Florida’s Anti-SLAPP Act, Fla. Stat. § 768.295 (2018). (App. 15.) Florida’s Act was designed and amended to protect the rights of people to exercise their rights to free speech in connection with public issues. § 768.295(1), Fla. Stat. (2015). Since the founding of this country, political speech has always been accorded the highest level of protection under the law. The Act is patently remedial in nature. After a hearing on the motion, (App. 277-376), on March 6, 2019,5 the trial court denied the motion. (App. 4.) The basis for its denial was unrelated to the merits of Materio’s claims, (App. 8-9); rather, the trial court’s denial was based on the question of “whether the subject-flyer, regardless of the words it employs, is a type or mechanism of communication afforded protection by the anti-SLAPP statute.” (App. 9.) The trial court’s Order made two findings: 1) the statute should be strictly construed, and 2) “electioneering communications,” as defined by Fla. St. § 106.011(8)(a), is not specifically listed in the enumerated methods of communication set forth in Fla. St. § 768.295(2)(a) (2015).6 (App. 11) 5 As the lower court’s Order was rendered on March 6, 2019, this petition is timely filed. “App.” means the Appendix to this Petition. 6 The lower court’s Order also references other legal issues it considered but did not decide, such as Materio’s challenge to Petitioner’s use of a declaration below. (App. 7-9). However, this argument is unavailing. See Wilson v. State, 202 So.3d 135 (Fla. 2d DCA 2016) (finding declaration, pursuant to Fla. Stat. § 92.525(2), the equivalent of an affidavit). Petitioner specifically identified the declaration it relied upon, (App. 17, n.6), later supplemented with an identical affidavit. See Fla. R. Civ. P. 1.510(c). Exhibit 3 Page 64 of 258 The lower court’s Order, if undisturbed, can easily be used to wrongly justify eliminating large categories of constitutionally protected expression from coverage by Anti-SLAPP Act, in opposition to the language of the Act and the express intent of the legislature. I. BASIS FOR INVOKING THE JURISDICTION OF THE COURT Article V section 4(b) of the Florida Constitution provides that the district courts of appeal have jurisdiction to issue writs of certiorari. See also Fla. R. App. P. 9.030(b)(2)(A). The order on review was rendered March 6, 2019. (App. 14.) Thus, this petition is timely under rule 9.100(c)(1). Certiorari is proper when a trial court’s order departs from the essential requirements of the law, resulting in a material injury that cannot be corrected on post-judgment appeal. Keller v. Healthcare-IQ, Inc., 230 So. 3d 955, 958 (Fla. 2d DCA 2017). As explained below, those requirements are met here. In Gundel v. AV Homes, Inc., 44 Fla. L. Weekly D351 (Fla. 2d DCA Feb. 1, 2019), the Court held that certiorari review is the proper mechanism for review of an Order denying relief sought pursuant to Fla. Stat. § 768.295. Id. (expressly agreeing that “the legislature has made it a matter of Florida public policy to recognize and dismiss SLAPP suits expeditiously because the very filing and continuation of SLAPP suits has the chilling effect on constitutional rights that the Anti-SLAPP statute was enacted to prevent and that, therefore, the jurisdictional Exhibit 3 Page 65 of 258 prongs of the certiorari standard have been met.”) A person who is denied relief under Florida’s Anti-SLAPP Act has no other remedy, save an extraordinary writ, to review the decision. For example, in the lower court, Materio is seeking an unconscionable amount of prevailing attorney’s fees under the Act.7 Without this mechanism of review, a defamation defendant who prevailed on the merits of the action, but initially lost a motion filed pursuant to the Act, would have no opportunity for appellate review. Similarly, this Court has previously agreed that certiorari review is appropriate for a trial court’s denial of a motion to dismiss based on a right to not be sued, recognizing no viable remedy on final appeal. Crowder v. Barbati, 987 So. 2d 166, 167 (Fla. 4th DCA 2008) (“certiorari relief was an appropriate method of challenging the denial of a motion to dismiss based upon principles of immunity from suit. . . . We recognized that immunity protected a government official from having to defend the suit in the first place. Thus, any remedy that enforced immunity upon final appeal, after the case had been fully defended, would be meaningless.”) II. FACTS UPON WHICH PETITIONERS RELY Materio ran for re-election to the position of Commissioner for City of West Palm Beach, District 6, an elected political office. The election was held as part of 7 Materio’s counsel communicated their intent to seek $253,000 in fees for the labor of two lawyers in defense of the Anti-SLAPP Motion. Exhibit 3 Page 66 of 258 Palm Beach County’s Uniform Municipal Election, held on March 13, 2018. She did not win. Materio filed suit against Petitioner, WPB Residents alleging Defamation Per Se (Count I) and Conspiracy to Defame (Count IV). The Defamation Per Se claim is based on the allegation that roughly one (1) month prior to Materio’s election, WPB Residents “caused the publication of materials which falsely stated that MATERIO broke the law by claiming a homestead exemption on a second property which was not her primary residence.” (App. 270:¶10 (Materio’s Complaint).) Materio further alleges WPB Residents “further claimed that MATERIO illegally obtained a grant from the federal government in the amount of fifty thousand dollars ($50,000.00).”8 (App. 270:¶11.) The trial court’s Order stated: “[b]ecause §768.295 is a statute in derogation of the common law and therefore must be strictly and narrowly construed, this Court must deem intentional the Legislature's omission of ‘electioneering communication’ from the list in §768.295 by operation of the judicial doctrine expressio unius est exclusion alterius.” (App. 11.) Before making the statement(s) alleged by Materio, Petitioner relied upon 8 In reality, the publication complained of made several assertions of fact without stating Materio obtained grant funding illegally. In fact, the banner states Materio “knows how to work the system,” implying that she was able to get around legal obstacles that ensnare less savvy individuals. (App. 42-43) Exhibit 3 Page 67 of 258 documents found in the official records of St. Lucie County and the tax records of Palm Beach and St. Lucie Counties. These records included: 1) The 2003 Trust documents for the Materio Family Trust, filed in 2017, St. Lucie County Official Records Book 4047, Pages 913-926 (App. 44-57); 2) The Mortgage filed St. Lucie County Official Records Book 3880, Pages 2407-2411 (App. 58-62); 3) 2015-2017 tax records for the St. Lucie Property; 2015-2017 tax records for Materio’s Palm Beach County property (App. 63-69); 4) Warranty Deeds for St. Lucie County Parcel 3422-526-0022-000/0 for 2010 and 2017, filed in St. Lucie County Official Records, Book 3246, Page 2072-3, Book 3246, Page 2072-3, Book 5256, Page 787, Book 4047, Page 927 (App. 70-73). The publication itself identifies the sources of the information it presents. To wit, “1. PBC & Port St. Lucie Property Appraiser Records; 2. Certificate of Trust, Sept. 2003; 3. City of Port St. Lucie Mortgage Housing Assistance Program, June 2016; 4. Warranty Deed for 2237 SE Midtown Road, Port St. Lucie, September 2017.” (App. 43.) In support of Materio’s claim that Petitioner’s disseminated false and misleading information with regard to Materio illegally obtaining a grant from the federal government in the amount of fifty thousand dollars ($50,000.00).”9 (App. 9 In reality, the publication complained of made several assertions of fact without stating Materio obtained grant funding illegally. In fact, the banner states Materio Exhibit 3 Page 68 of 258 270:¶11.) Materio executed a sworn Affidavit stating “I retained legal counsel to establish a family…[that] I jointly managed with her…after my mother passed, the trust granted my father ownership of the home until his death.” (App. 263:¶¶10-13.) The Affidavit omitted that in September 2003, Materio created and appointed herself Trustee of the Materio Family Trust (hereinafter “the Trust”), a revocable trust.10 (App. 46; 117:¶3.1.) The Trust was created for the benefit of Materio’s mother, with Materio herself listed as one of the “remaindermen.” (App. 46, Art. I, § 1.1.) Unless revoked at any time by Materio, the Trust called for the balance and accumulated “knows how to work the system,” implying that she was able to get around legal obstacles that ensnare less savvy individuals. (App. 42-43.) 10 In Florida National Bank of Palm Beach County v. Genova, 460 So.2d 895 (Fla.1984), the Court observed a revocable trust only grants the beneficiary or remaindermen a contingent interest in the trust property, subject to the revocation of the settlor who at all times until death has the power to regain full ownership to the trust property. Id. 897. The Court further noted that the “the beneficiaries of a revocable trust do not come into possession of any of the trust property until the settlor's death.” Id. (emphasis added). In fact, the Florida Bar publishes “Consumer Pamphlet: The Revocable Trust in Florida,” updated in December 2016, addressing revocable trusts and real property. https://www.floridabar.org/public/consumer/pamphlet028/#CAN%20THE%20TR UST%20HOLD%20TITLE%20TO%20MY%20HO (as of October 30, 2018). The publication sets forth that the settlor of a revocable trust is treated as the owner of the property held by the trust. Id., at section entitled: “What is a Revocable Trust?” (“A revocable trust is a document (the “trust agreement”) created by you to manage your assets during your lifetime and distribute the remaining assets after your death.”) Id., at section entitled: “Does The Trust Provide Protection From Creditor Claims?” (“In Florida, the trust assets are not protected from the claims of your creditors. During your lifetime the assets in a revocable trust are treated as owned by you, and subject to the claims of your creditor as if you owned them in your personal name.”) (emphasis added). Exhibit 3 Page 69 of 258 income of the Trust to be distributed to the remaindermen upon the death of Materio’s mother. (App. 47, Art. IV, § 4.1.) Consequently, according to the terms of the Trust, the passing of Mrs. Silvestri marked the termination of the purpose of the Trust. (Id.) However, because the trust was revocable by Materio at any time, with the property immediately vesting in Materio upon revocation, Materio herself was the owner of all property in the Trust unless and until she either rendered the Trust irrevocable or passes away.11 In 2010, the Trust acquired a property in St. Lucie County, identified by Parcel/Property ID # 3422-526-0022-000 (hereinafter the “St. Lucie Property”). (App. 72.) The property was then the primary residence of Mrs. Silvestri. The deed for the St. Lucie Property lists the Trust as the owner, specifically referring to the Trust, as established in 2003. (Id.) According to the 2017 filing of a Certificate of Trust, including the original trust document from 2003, without reference to any amendments in the Certificate of Trust, the Trust appeared to remain unchanged through 2017. (App. 44-57.) On December 31, 2014, Mrs. Silvestri passed away. (App. 147.) Despite the 11 See Fla. Stat. § 736.0505(1)(a) (“Whether or not the terms of a trust contain a spendthrift provision, the following rules apply: (a) The property of a revocable trust is subject to the claims of the settlor’s creditors during the settlor’s lifetime to the extent the property would not otherwise be exempt by law if owned directly by the settlor.”) Exhibit 3 Page 70 of 258 passing of Mrs. Silvestri, the Trust did not wind down, but instead expanded its obligations through an assumption of new debt. In addition, neither Mr. Silvestri or Materio herself qualified for homestead tax exemption for 2015 on the St. Lucie Property because Materio did not live there, and was claiming an exemption elsewhere, and Joseph Silvestri did not have any claim to legal or beneficial title as of January 1, 2015. See Fla. Stat. § 196.031(1)(a) (2013-2015) (“1)(a) (“A person who, on January 1, has the legal title or beneficial title in equity to real property in this state and who in good faith makes the property his or her permanent residence . . . is entitled to an exemption from all taxation . . .”) Given the legal landscape governing homestead tax exemption, it would have been improper for Materio, either individually, or as Trustee and/or remainderman under the Trust, to claim such an exemption while contemporaneously claiming the same for a property in another county. While Florida law permits a person holding title in a real property to claim homestead tax exemption, it forbids a person to do so on multiple properties. Indeed, the party claiming the exemption must be a permanent resident of the property being claimed.12 12 Fla. Stat. § 196.012(17) (defines “Permanent residence” as “that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is Exhibit 3 Page 71 of 258 On June 8, 2016, Materio executed a mortgage, amounting to a loan in the amount of $50,000.00 from the City of Port St. Lucie, pursuant to its Housing Assistance Program. (App. 58; 430:14-20;13 436:23-437:12; 438:14-439:10; 440:18- 23.) Materio executed the mortgage both personally and separately as Trustee of the Trust. (App. 62.) (The loan was evidenced by a Mortgagor’s Housing Assistance Program Note, which was not filed in the Official Records.) The loan evidenced by the Note and secured by the Mortgage was made pursuant to 24 CFR Part 570, Community Development Block Grant (CDBG) or Section 420.907,14 Florida established in a foreign state or country, it is presumed to continue until the person shows that a change has occurred.”); Fla. Stat. § 196.031(1) (“A person who, on January 1, has the legal title or beneficial title in equity to real property in this state and who in good faith makes the property his or her permanent residence or the permanent residence of another or others legally or naturally dependent upon him or her, is entitled to an exemption. . .”) (emphasis added); Fla. Admin. Code Ann. r. 12D-7.007 (“The Constitution contemplates that one person may claim only one homestead exemption without regard to the number of residences owned by him and occupied by “another or others naturally dependent upon” such owner.”) (emphasis added). 13 Mr. Carmen Capezzuto is the Director of Neighborhood Services, City of Port St. Lucie. 14 A “loan,” pursuant to Ch. 420, “means an award from the local housing assistance trust fund to an eligible sponsor or eligible person to partially finance the acquisition, construction, or rehabilitation of eligible housing with requirement for repayment or provision for forgiveness of repayment if the condition of the award is maintained.” § 420.9071(13), Fla. Stat. (2016) (emphasis added); An “Eligible person” or “eligible household” “means one or more natural persons or a family determined by the county or eligible municipality to be of very low income, low income, or moderate income according to the income limits adjusted to family size published annually by the United States Department of Housing and Urban Development based upon the annual gross income of the household.” § 420.9071(10), Fla. Stat. (2016) Exhibit 3 Page 72 of 258 Statutes. (App. 58, Sec. 2A.) As a condition precedent for qualification and funding of the mortgage/loan, paragraph 7 of the mortgage requires the mortgagor to occupy the property as a principle residence. (App. 59-60; 333:22-337:19; 441:9-449:11; 456:18-458:5.) Only after the filing of Materio’s suit below, was it learned through discovery that on January 7, 2016, Materio had executed an instrument entitled “First Amendment to the Materio Family Trust, Under Agreement dated September 19, 2003.” (App. 509.) The first amendment to the Materio Trust deleted references to Delores Silvestri and added Article 2.2(e), stating Joseph R. Silvestri as having beneficial title to the St. Lucie County property for the term of Materio’s life. (Id.) (“For the term of her life, Joseph R. Silvestri ("Joseph") shall have beneficial title to the following described real property located in ST. LUCIE COUNTY, provided that said property is still held by the Trust”). Prior to the amendment, the heading of section 2.2 read as follows: Article II – Trust Property 2.2 Administration of Trust During Lifetime. During the lifetime of Delores, the trustee shall administer the Trust as follows: (App. 46) (emphasis added). (emphasis added); “All units constructed, rehabilitated, or otherwise assisted with local housing distributions provided from the local housing assistance trust fund must be occupied by eligible persons as defined in Section 420.9071(10), F.S. The remainder may be reserved for eligible sponsors that will serve eligible persons.” Fla. Admin. Code r. 67-37.007 (2016) (emphasis added). Exhibit 3 Page 73 of 258 After the amendment, removing references to Delores Silvestri, the section 2.2 and the new section 2.2(e) should have read as follows: Article II – Trust Property 2.2 Administration of Trust During Lifetime. During the lifetime of the trustee shall administer the Trust as follows: 2.2(e) For the term of her life, Joseph R. Silvestri ("Joseph") shall have beneficial title to the following described real property located in ST. LUCIE COUNTY, provided that said property is still held by the Trust: Lot 4, Block 96, FIRST REPLAT IN SOUTH PORT ST. LUCIE UNIT FIVE, according to the Plat thereof recorded in Plat Book 18, Pages 15 and 15A, Public Records of St. Lucie County, Florida Parcel Identification Number: 3422-526-0022-000/0 (App. 509; 46) (emphasis added). Giving full effect to the plain terms of the January 7, 2016 First Amendment to the Trust, it is clear the Trust did not grant Joseph Silvestri beneficial title for his life, it was for the lifetime of Materio. § 196.041(2), Fla. Stat. (2015) (“A person who otherwise qualifies by the required residence for the homestead tax exemption . . . shall be entitled to such exemption where the person's possessory right in such real property is based upon an instrument granting to him or her a beneficial interest for life . . .”) (emphasis added). However, if Materio’s father did have an ownership interest in the St. Lucie Property at the time the loan/mortgage from the City of Port St. Lucie was executed, then the Mortgagor’s covenant of its authority to convey was disingenuous. (App. 58:¶2B.) Exhibit 3 Page 74 of 258 Notwithstanding the 2016 amendment to the Materio Trust, on September 21, 2017, Materio executed a Certificate of Trust affidavit, (App. 44-57, Exhibit B to Petitioner’s Motion to Dismiss / Summary Judgment), incorporating the Materio Trust, in its original iteration and without reference to any amendment, as an exhibit to the Certificate of Trust and swearing the Trust has been in full force and effect during the period of ownership of the St. Lucie Property. (App. 44:¶#6.) The 2017 Certificate of Trust was recorded in the St. Lucie County Official Records Book 4047, Pages 913-926, on October 2, 2017. This filing was what relied upon by Petitioner for its publication. A review of the public records, including the Trust filed in 2017, without amendment, and the records published by the St. Lucie County Tax Collector & Property Appraiser’s Offices yielded the very reasonable conclusion that Materio claimed homestead tax exemptions on two separate properties contemporaneously, as well as personally executed a loan/mortgage under the title “mortgagor” that required her to represent the property was her primary residence. In other words, anyone reviewing the public official records and above-quoted law would reasonably conclude: a) The Materio Trust was never actually amended to provide a beneficial interest for Mr. Joseph Silvestri, a requirement for his claim of homestead tax exemption. b) Materio was always the owner of the St. Lucie property by virtue of being a settlor of the revocable Trust. c) Materio benefitted from a homestead tax exemption for property in Port Exhibit 3 Page 75 of 258 St. Lucie; d) Materio benefitted from a homestead tax exemption for property in West Palm Beach; e) Materio was the beneficiary and borrower of up to $50,000 funds for the assistance of residents of the City of Port St. Lucie, who actually occupy their homes; f) Florida law does not permit a person to claim homestead tax exemption for two Florida properties contemporaneously. III. NATURE OF THE RELIEF SOUGHT Petitioner seeks the issuance of a writ of certiorari to the lower tribunal quashing its Order, (App. 4), and granting Petitioner’s Motion to Dismiss and Summary Judgment. IV. ARGUMENT A. Electioneering Communication Organizations Are “Persons” With Protected First Amendment Rights Florida’s Election Code defines an “electioneering communications organization” as “any group, other than a political party, affiliated party committee, or political committee, whose election-related activities are limited to making expenditures for electioneering communications or accepting contributions for the purpose of making electioneering communications . . .” § 106.011(9), Fla. Stat. (2018). This definition includes unincorporated groups of individuals and corporate entities,15 each of whom have protected freedom of expression, including political 15 § 1.01(3), Fla. Stat. (2018) (“In construing these statutes and each and every word, Exhibit 3 Page 76 of 258 advocacy, under the First Amendment to the U.S. Constitution and Art. 1, § 4, Fla. Const. Citizens United v. Fed. Election Com'n, 558 U.S. 310, 342–43 (2010) (“The Court has recognized that First Amendment protection extends to corporations. This protection has been extended by explicit holdings to the context of political speech. Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.”) (internal citation omitted); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion). The trial court’s Order determined electioneering communications were excluded from the enumerated methods of mediums in § 768.295(2)(a) listed. (App. 11.) The Order appears to disregard the status of the publisher or declarant of content, and focuses on the term “electioneering communication,” and all it entails. Regular businesses, clubs and organizations, in any field of endeavor, for profit or nonprofit, are required to register as an ECO whenever they send an electioneering communication. phrase, or part hereof, where the context will permit: (3) The word “person” includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.”) (emphasis added); § 106.011(14), Fla. Stat. (2018) (“‘Person’ means an individual or a corporation . . . organization . . . or other combination of individuals having collective capacity.”) Exhibit 3 Page 77 of 258 An “electioneering communication,” by definition, is designed to be disseminated to the public in the course of an election. As defined by Fla. St. § 106.11(8)(a), an electioneering communication is a communication publicly distributed by numerous enumerated methods, that includes direct mail.16 Id. Further, the communication must: 1) Refer to or depict a clearly identified candidate for office without expressly advocating the election or defeat of a candidate but that is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate;17 2) Be made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and 3) Be targeted to the relevant electorate in the geographic area the 16 An “electioneering communication” is a communication that is publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, or telephone and that: 1. Refers to or depicts a clearly identified candidate for office without expressly advocating the election or defeat of a candidate but that is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate; 2. Is made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and 3. Is targeted to the relevant electorate in the geographic area the candidate would represent if elected. Fla. Stat. § 106.011(8)(a), Fla. Stat. Ann. (2018) (emphasis added). 17 In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), the U.S. Supreme Court set forth its “appeal to vote” test, stating “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id., 551 U.S. at 469–70 (emphasis added). Exhibit 3 Page 78 of 258 candidate would represent if elected. Id. B. Florida’s Anti-SLAPP Law The lower court’s Order involved the interpretation of a statute, therefore this Court should review such de novo. Publix Supermarkets, Inc. v. Santos, 118 So.3d 317, 319 (Fla.3d DCA 2013). Florida Statute § 768.295(1) expresses the intent of the Legislature “to protect the right in Florida to exercise the rights of free speech in connection with public issues . . . as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.” It is by now an apodictic proposition that political speech enjoys the highest protection under the First Amendment. Political speech in the form of scrutiny of a candidate for public office elevates with every moment approaching an election. Florida’s Ant-SLAPP statute defines the term “free speech in connection with public issues,” as applicable to Materio’s claim, as “any written or oral statement that is protected under applicable law and is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.” § 768.295(2)(a), Fla. Stat. (2018) (emphasis added).18 18 The definition of “free speech made in connection with public issues” applicable Exhibit 3 Page 79 of 258 Florida’s Act is not limited to statements made in the listed media formats. The use of the term “or in connection with” means the legislature wanted to protect statements made in response to what the statement’s declarant perceived in a “work.” The very term “‘in connection with’ has a very expansive meaning, consistent with “arising out of.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 539 (Fla. 2005) (“The term ‘arising out of’ is broader in meaning than the term ‘caused by’ and means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with.’ ”) (citing Hagen v. AETNA Casualty And Surety Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996) (emphasis added)). The Act’s focus on protecting statements made in connection with a “work” the declarant either perceived or heard of reflects a decision to protect statements to the suit below, need not even require the involvement of a matter traditionally held to be a “public issue.” The Senate Staff Analysis to the 2015 Amendment to § 768.295 demonstrates the legislature voted on the measure with the following understanding of its scope and application. Due to the disjunctive structure of the definition of “free speech in connection with public issues,” the bill appears to give additional protections to speech solely because the speech is made through designated forms of media. The bill does not appear to require that speech made through these forms of media relate to a “public issue.” If the Legislature intends to link the speech protections provided in the bill to the discussion of public issues or participation in government, it may wish to revise the bill accordingly. (App. 76, Sec. VII, to Petitioner’s Motion to Dismiss / Summary Judgment, containing Fla. Senate Staff Analysis, Bill CS/SB 1312, March 18, 2015). Exhibit 3 Page 80 of 258 made in reaction or response, regardless of the medium used by the statement’s declarant, to express such reaction. The obvious purpose of this, especially when considering the purpose of Florida’s Act is to protect free speech rights, is the encouragement and protection of debate. The trial court’s rigid construction of the Act’s listing of means of content dissemination erodes the protection the Act is intended to offer, and ignores that the Act protects statements made outside, but in reaction to, content in a work. Goode v. State, 50 Fla. 45, 39 So. 461 (1905) (“It is the general rule, in construing statutes, ‘that construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole. A construction which would leave without effect any part of the language used should be rejected, if an interpretation can be found which will give it effect.’”); State v. Knighton, 235 So. 3d 312, 316 (Fla. 2018). The trial court’s focus on how the statement was disseminated, such as by direct mail, is erroneous. For example, in Citizens United, the entire controversy arose from an electioneering communication in the form of movie about Hilary Clinton, named Hilary. While the opinion discusses Hilary being disseminated via internet streaming, it also mentioned it was being distributed as a DVD. The trial court’s Order would seemingly exclude such communication from Florida’s Act, despite being a movie, because it was an electioneering communication. Exhibit 3 Page 81 of 258 Further, a finding that electioneering communications are excluded from Florida’s Act because of the temporal limitations listed in Fla. Stat. § 106.11(8)(a) would be both arbitrary and counterintuitive since the discussion about candidates for office increases up to the moment of an election. The use of the term “similar work” at the end of the definition is intended to ensure that any statement made in a presentation or disseminated to the public is not excluded from its purview. The common factor among the mediums of expression listed in F.S. § 768.295(2)(a) is the dissemination of content to the public through a means designed to reach, or be available to, a wide audience. Petitioner is a Florida corporation registered as an electioneering communication organization (“ECO”), which under Florida law means their political-activity involves publicly disseminating content about issues or candidates for public office by television, radio, cable or satellite system, newspaper, magazine, direct mail, etc.. § 106.011(8)(a), Fla. Stat. (2018). The use of direct mail, the same means of delivery for magazines, books, periodicals, recordings of movies, music recordings and written compositions and written news reports, to send an electioneering communication satisfies the criteria of a “similar work,” pursuant to § 768.295(2)(a). In cadence with the Anti-SLAPP statutes of other states, Fla. Stat. § 768.295(4) provides a means by which a defendant may seek redress of a SLAPP Exhibit 3 Page 82 of 258 suit quickly and early. The point of an anti-SLAPP statute is to have the right not to be dragged through the courts because of an exercise of constitutional rights. See Varian Med. Systems, Inc. v. Delfino, 35 Cal. 4th 180, 193 (2005). Fla. Stat. § 768.295(3) prohibits the filing of a claim where the cause of action is: a) without merit, and b) primarily because the defendant has exercised the constitutional right of free speech in connection with a public issue.19 Notwithstanding, plaintiff’s who have filed a SLAPP suit, even in violation of the Act, are accorded notice, an opportunity to be heard and an adjudicatory hearing on the merits of their claim in the form of a motion to dismiss or summary judgment. Very recently, the Second District Court of Appeal interpreted Florida’s Act in Gundel v. AV Homes, Inc., 44 Fla. L. Weekly D351 (Fla. 2d DCA Feb. 1, 2019).In Gundel, the court reviewed the proper procedure to be employed by trial courts adjudicating motions pursuant to Florida’s Act. Id. at *7-8 The Gundel court found that after a defendant presenting an Anti-SLAPP motion sets forth a prima facie case for its applicability, the plaintiff responding to such a motion carried the burden to 19 See § 768.295(3), Fla. Stat. (2018) (“A person . . . in this state may not file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.”(emphasis added). Exhibit 3 Page 83 of 258 prove the claim presented is not “primarily” based on First Amendment rights in connection with a public issue and not “without merit.” Placing the initial burden on the SLAPP defendant to set forth a prima facie case that the Anti-SLAPP statute applies and then shifting the burden to the claimant to demonstrate that the claims are not “primarily” based on First Amendment rights in connection with a public issue and not “without merit” serves the purpose of the statute and conforms with the procedures employed in considering other statutorily-based motions to dismiss. Id. 1. The Act Is Remedial In Nature And Should Be Liberally Construed In furtherance of such intent, the statute sets forth: It is the public policy of this state that a person or governmental entity not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues. Therefore, the Legislature finds and declares that prohibiting such lawsuits as herein described will preserve this fundamental state policy, preserve the constitutional rights of persons in Florida, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts. § 768.295(1), Fla. Stat. (2015) (emphasis added). Florida’s Act is remedial in nature.20 As such, even if in derogation of 20 When Florida’s Act was initially passed in 2000, the legislature made clear the law was designed to correct the proliferation of Strategic Lawsuits Against Public Participation, designed to stamp out dissent and found existing safeguards inadequate. WHEREAS, civil lawsuits and counterclaims, often involving millions of dollars, have been and are being filed against Exhibit 3 Page 84 of 258 common law, it is required to be liberally construed to give effect to its purpose. Irven v. Dep't of Health & Rehab. Services, 790 So. 2d 403, 406 (Fla. 2001) (“When a statute is both in derogation of the common law and remedial in nature, the rule of strict construction should not be applied so as to frustrate the legislative intent. The statute should be construed liberally in order to give effect to the legislation.”); countless citizens, businesses, and organizations because of their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating with government bodies, officials, or employees or the electorate, and WHEREAS, such lawsuits, called “Strategic Lawsuits Against Public Participation” or “SLAPPs,” are typically dismissed as unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their duties, and WHEREAS, the number of such lawsuits has increased significantly over the past 30 years, and WHEREAS, these lawsuits are an abuse of the judicial process and are used to censor, intimidate, or punish citizens, businesses, and organizations for involving themselves in public affairs, and WHEREAS, controlling these lawsuits will make a major contribution to lawsuit reform, and WHEREAS, the threat of financial liability, litigation costs, destruction of one's business, loss of one's home, and other personal losses from groundless lawsuits seriously affects government, commerce, and individual rights by significantly diminishing public participation in government, in public discourse, and in voluntary public service, and WHEREAS, while courts have recognized the harm from such lawsuits and have discouraged them, protection of these fundamental rights has been inadequate, and CITIZEN PARTICIPATION IN GOVERNMENT ACT—SLAPP LAWSUITS— PROTECTION THROUGH RIGHT TO PETITION GOVERNMENT, 2000 Fla. Sess. Law Serv. Ch. 2000-174 (H.B. 135) (WEST) (emphasis added). Exhibit 3 Page 85 of 258 Klepper v. Breslin, 83 So.2d 587, 592 (Fla.1955) (“[T]he Florida act is in derogation of the common law and because of this ordinarily would be strictly construed, nevertheless we have held that it is remedial in nature and should be accorded a liberal construction consistent with the objective sought to be accomplished.”); Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992) (“As a remedial act, the statute should be construed liberally in favor of granting access to the remedy.”) 2. The Act Is Not In Derogation of Common Law Respondent argued that the entirety of Chapter 768, Florida Statutes, including Florida’s Anti-SLAPP Act are in derogation of common law. For this argument Materio’s counsel relied exclusively on Ballard v. Curatolo, 363 So. 2d 864, 865 (Fla. 4th DCA 1978) and Serrill v. Hilderbrand, 382 So. 2d 316, 317–18 (Fla. 2d DCA 1979).21 (Appx. 160.) Notwithstanding, Ballard and Serrill predate the passage of Florida’s Anti-SLAPP Act, and even a cursory analysis of the cases reveals the language Materios’s Response cited as precedent below addressed a context having no application to Florida’s Anti-SLAPP Act. In effect, Respondent 21 In interpreting a statute within Ch. 768, Florida’s Wrongful Death Act, Fla. Stat. § 768.21, the Florida Supreme Court in BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003), applied a liberal construction to a statute in derogation of common law. Id. at 290 (“While the general rule is that statutes in derogation of the common law are strictly construed, the general rule of strict construction does not, in Florida, apply to a remedial statute in derogation of the common law.”) Exhibit 3 Page 86 of 258 took a decision not addressing Florida’s Act, issued twenty-two years before Florida’s Act was conceived, applied no analysis to it whatsoever, and passed it off as binding precedent. The cases of Ballard and Serrill are as relevant to Fla. Stat. § 768.295 as criticism of the Ford Model-T is to the new Chevrolet Corvette. While Florida law provides that the common law shall be maintained, Fla. Stat. § 2.01, there are certain classes of rights and remedies that for which the period for looking at the common law is 1968, when Florida’s Declaration of Rights was passed. Eller v. Shova, 630 So. 2d 537, 542 n.4 (Fla. 1993) (“We take this opportunity to clarify that, when reviewing article I, section 21, of the Florida Constitution, one must look to the common law as it existed on November 5, 1968. This is because the 1968 provision of section 21 differs significantly from its 1845 counterpart.”) However, Florida’s common law regarding defamation claims was modified long before the passage of Fla. Stat. §768.295, June 2, 2000 and amended to its current version in 2015. Specifically, in 1964, in New York Times Co. v. Sullivan, the U.S. Supreme Court established a constitutional prerequisite for public figures to establish a claim for defamation. 376 U.S. 254 (1964). The Court in New York Times held that “constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual Exhibit 3 Page 87 of 258 malice’-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80 (emphasis added). The actual malice test is also known as the New York Times Rule. As a constitutional requirement, the New York Times Rule was immediately incorporated into Art. I, § 4 of Florida’s Constitution.22 Haag v. State, 591 So. 2d 614, 618 (Fla. 1992) (“As is self-evident, even the common law must bend before the dictates of the Florida Constitution. Not even the hoariest precedent is permitted to violate the guarantees . . . fundamental rights set forth in the Declaration of Rights. Art. I, Fla. Const.”) Regardless of whether the New York Times Rule constituted judicial abrogation or modification of the common law, the fact is that on March 9, 1964, a public figure defamation plaintiff had no viable defamation claim in the absence of actual malice. Florida’s Act doesn’t affect any substantive or procedural rights available at common law to a public figure defamation plaintiff. Florida’s Anti-SLAPP Act still affords plaintiffs, including Materio, their day in court on the merits, as explained further below. The procedure giving effect to this prohibition on SLAPP suits is by set forth by Fla. Stat. § 768.295(4): 22 Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (“It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States.”) Exhibit 3 Page 88 of 258 A person or entity sued by a . . . person in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A person or entity may move the court for an order dismissing the action or granting final judgment in favor of that person or entity. The person or entity may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant's . . . lawsuit has been brought in violation of this section. The claimant . . . shall thereafter file a response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the motion, which shall be held at the earliest possible time after the filing of the claimant's or governmental entity's response. Id. (emphasis added). In other words, the principle remedy provided by the Act is an expedited hearing on a motion to dismiss or for summary judgment. The only thing a plaintiff bringing a SLAPP claim is divested of is a chance to harass the defendant through needless litigation on a meritless claim, which has never been recognized as a right at common law. 3. The Trial Court Erred In Ruling That Electioneering Communications Are Not Included in § 768.295 The trial court’s Order stated: “[b]ecause §768.295 is a statute in derogation of the common law and therefore must be strictly and narrowly construed, this Court must deem intentional the Legislature's omission of ‘electioneering communication’ from the list in §768.295 by operation of the judicial doctrine expressio unius est exclusion alterius.” (App. 11.) Electioneering communications, under Florida law, are designed to publicly Exhibit 3 Page 89 of 258 distribute content about candidates for public office by television, radio, cable or satellite system, newspaper, magazine, direct mail, etc.. See F.S. § 106.011(8)(a), Fla. Stat. Ann. (2018). As noted above, the use of direct mail, the same means of delivery for magazines, books, periodicals and newspapers, such as the Florida Bar News, etc., to send an electioneering communication fits the criteria of a “similar work,” pursuant to F.S. § 768.295(2)(a). The term “work” is not defined by Florida’s Act. Lowe v. Broward County, 766 So. 2d 1199, 1209 (Fla. 4th DCA 2000) (“Where a statute fails to specifically define a term, a court seeking meaning may look to the plain and ordinary meaning of the term.”) “Work,” when used as a noun, does have widely accepted meaning as referring to the product of effort or creation. In intellectual property law, a copyrightable work is often referred to as the expression of the author.23 Materio contended the term “other similar work” was required to be construed as pertaining to audiovisual work and musical work. (App. 165.) Materio argued that an aid to statutory construction, expressio unius est exclusio alterius, (App. 162- 166.) required the trial court to exclude electioneering communications from the list of forms of communication covered by Florida’s Act. Such a construction violates 23 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985) (“copyright's idea/expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.’”) (internal citation omitted). Exhibit 3 Page 90 of 258 well-settled rules of statutory construction of remedial statutes, especially given the title of the Act and its statement of legislative intent. In State v. Webb, 398 So. 2d 820 (Fla. 1981), the Florida Supreme Court set forth that legislative “intent must be given effect even though it may contradict the strict letter of a statute.” Id. at 824-25. Furthermore, construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided. To determine legislative intent, we must consider the act as a whole “the evil to be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject.” In determining legislative intent, we must give due weight and effect to the title of section 901.151, Florida Statutes (1977), which was placed at the beginning of the section by the legislature itself. The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent. Id. (internal citation omitted) (emphasis added). See Vildibill v. Johnson, 492 So. 2d 1047, 1049 (Fla. 1986) (“Legislative intent must be given effect even though it may contradict the strict letter of the statute.”) The title of Fla. Stat. § 768.295, “Strategic Lawsuits Against Public Participation (SLAPP) prohibited,” is unambiguous in its intent. The legislative intent behind Florida’s Act is unmistakable. § 768.295(1), Fla. Stat. (“It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues . . . as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. It is the public Exhibit 3 Page 91 of 258 policy of this state that a person . . . not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues.”) The canon promoted by Materio, expressio unius est exclusio alterius,24 is disfavored in law,25 where it relies on the negative implication flowing from the absence of a term. Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013) (“The force of any negative implication, however, depends on context. We have long held 24 This maxim, meaning “the expression of one thing implies the exclusion of the other,” is “strictly an aid to statutory construction and not a rule of law.” The correctness of the principle as applied to a particular statute “depends entirely on context,” including the history and structure of the legislation being examined. Its use must be governed by common sense, such that it should not be applied to defeat the “natural and obvious sense” of a statute's provisions. The Federalist No. 83, at 495–96 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In fact, this maxim properly applies only when the court can determine that the matters expressly mentioned are intended to be exclusive. For these reasons, it has been deemed “a valuable servant, but a dangerous master to follow in the construction of statutes or documents.” Crews v. Florida Pub. Employers Council 79, AFSCME, 113 So. 3d 1063, 1071–72 (Fla. 1st DCA 2013) (internal citation omitted, except The Federalist) (emphasis added). 25 See Smalley Transportation Co. v. Moed’s Transfer Co., 373 So.2d 55, 56-7 (Fla. 2d DCA 1979) (quoting Ford v. United States, 273 U.S. 593, 611-2 (1927)); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992) (“[T]he expressio unius principle describes what we usually mean by a particular manner of expression, but does not prescribe how we must interpret a phrase once written.”); De La Osa v. Wells Fargo Bank, N.A., 208 So.3d 259, 260 n.1 (Fla. 3d DCA 2016) (en banc). Exhibit 3 Page 92 of 258 that the expressio unius canon does not apply ‘unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it,’ and that the canon can be overcome by ‘contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion.’”) (internal citation omitted). This Court has stated that expressio unius est exclusio alterius does not apply when a term is undefined or a “general concept without precise definition, so that it cannot be said that it ‘expressly describes the particular situation in which something should apply.’” Lowe v. Broward County, 766 So. 2d 1199, 1208 (Fla. 4th DCA 2000) (quoting Gay v. Singletary, 700 So.2d 1220, 1221 (Fla. 1997)). The application of expressio unius est exclusio alterius to § 768.295(2)(a) is inconsistent with Florida law, sound policy and effectively negates the intent of the legislature. The statute presents a list of undefined general items that ends with the words “and other similar work,” an unmistakable expression that additional related generic items are also included, but not listed. Expressio unius est exclusio alterius, as applied by the trial court, renders the statutory words “or other similar work” meaningless surplusage. Mendenhall v. State, 48 So. 3d 740, 749 (Fla. 2010) (an “elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.”) A more appropriate canon of interpretation is the doctrine of ejusdem generis. Exhibit 3 Page 93 of 258 Literally translated, ‘ejusdem generis' means ‘of the same kind or species.’ Briefly stated. the doctrine of ejusdem generis, when employed as an aid to statutory construction, is that, where an enumeration of specific things is followed by some more or phrase will usually be construed to refer or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. But the rule does not necessarily require that the general provisions be limited in its scope to the identical things specifically named. So applied, the rule would render the subsequent general phrase entirely inoperative, and thereby violate another salutary rule of construction, namely, that every part of a statute should, if possible, be sustained and given appropriate effect. Children’s Bootery v. Sutker, 107 So. 345, 347 (Fla. 1926) (internal citation omitted) (emphasis added). As discussed above, a “work” is a general term used in law and common parlance, typically referring to the creation of content or the product of labor, expressing of an idea, that may include the artistic and non-artistic, tangible and intangible, fact, fiction, writings, literature, pictures, paintings, music, films, news, opinion, farce, etc.26 In copyright law the term “work” has been used as like a mathematical variable to mean almost anything, often modified by the medium used to express the idea produced. An unoriginal work with no redeeming value is still a “work.” 26 The lower court seemingly agreed with this principle. (App. 13, n.4.) Exhibit 3 Page 94 of 258 Applying the above concepts to the language of § 768.295(2)(a), the content covered by Florida’s Act, qualifying as “free speech in connection with a public issue” has to be: 1) a statement, written or oral; 2) protected under applicable law; 3) made in or in connection with: a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work. Plays, movies, television programs, radio broadcasts, audiovisual works, books, magazine articles, musical works can all disseminate fact, fiction, opinion or commentary. The term “news reports” is undefined, and even the U.S. Supreme Court has avoided defining what constitutes “news,” aside from characterizing it as “the information respecting current events contained in the literary production.” News Service v. Associated Press, 248 U.S. 215, 234 (1918). See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561 (1985) (“As Judge Meskill wisely noted, ‘[c]ourts should be chary of deciding what is and what is not news.’”) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 215 (2d Cir. 1983) (dissenting)). All of the forms of expression listed in § 768.295(2)(a) are meant to inform groups of people of the expressions of the content creator. The terms plays, movies and even musical works need not refer to the production or performance of the works, but also the manuscript created by the author to express them. Time, Inc. v. Exhibit 3 Page 95 of 258 Hill, 385 U.S. 374, 378 and 391 (1967) (“The book was made into a play . . . Joseph Hayes, author of the book, also wrote the play.”) Truly, the only common features among the methods of expression listed in § 768.295(2)(a) are they are all meant to disseminate content to members of the public, regardless of the means of delivery. The U.S. Postal Service provides the same function. If a person read a magazine article about a candidate for office, and in response to the article, then mailed a written statement highly critical about her to 100 people, that written statement would undoubtedly constitute “free speech in connection with a public issue.” Under the trial court’s Order, the hypothetical statement would not be free speech in connection with a public issue if the statement qualified as an electioneering communication. The rational used in the Order has led the trial court to make an arbitrary application of a remedial statute that is inconsistent with the intent of the legislature. This cannot stand. C. A DETERMINATION OF THE “MERITS” OF THE COMPLAINT REQUIRED MATERIO TO SHOW ACTUAL MALICE The trial court erroneously failed to reach the merits of the defamation claim. However, this Court reviews defamation claims de novo. Don King Productions, Inc. v. Walt Disney Co., 40 So. 3d 40, 44 (Fla. 4th DCA 2010). Further, in cases implicating the First Amendment, summary judgments are to be granted more Exhibit 3 Page 96 of 258 liberally and appellate courts are mandated to conduct a full review of the record.27 Id. This Court’s certiorari review permits a finding that the trial court violated clearly established law arising “from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Nader v. Florida Dept. of Highway Safety & Motor Vehicles, 87 So. 3d 712, 723 (Fla. 2012). Materio failed to rebut any of WPB Resident’s sworn facts, rendering the declaration/affidavit of Bill Newgent undisputed. (App. 78-79; 261-265.) She did so at her own peril. Further, Materio’s affidavit amounts to little more than a collection of self-serving conclusory statements. Tilton v. Wrobel, 198 So. 3d 909, 911 (Fla. 4th DCA 2016) (“The respondent's self-serving affidavit, asserting that he did not steal money from the company, was legally insufficient to show the petitioners' knowledge of the falsity of the alleged defamatory statement.”) Florida law and First Amendment to the U.S. Constitution limits the viability of defamation actions brought by public figures. The New York Times Rule is rooted 27 Don King, 40 So. 3d at 44 (“We must draw all reasonable inferences in favor of King, the nonmoving party but our review is guided by the rule that summary judgments are to be more liberally granted in defamation actions against public- figure plaintiffs. And, on a motion for summary judgment in a public-figure defamation case, the burden is on the plaintiff to “present record evidence sufficient to satisfy the court that a genuine issue of material fact exists which would allow a jury to find by clear and convincing evidence the existence of actual malice on the part of the defendant.”) (internal citation omitted); Seropian v. Forman, 652 So.2d 490, 494 (Fla. 4th DCA 1995); Florida Med. Ctr., Inc. v. New York Post Co., Inc., 568 So. 2d 454, 457 (Fla. 4th DCA 1990). Exhibit 3 Page 97 of 258 in the recognition that the First Amendment safeguards “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co., 376 U.S. at 270. “[T]he First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco Cnty. Democratic Ctr. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). It is an apodictic proposition that the utterance of “erroneous statement[s] is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.” Id. 271-72. Further, “[i]njury to official reputation error affords no more warrant for repressing speech that would otherwise be free than does factual error.” Id. at 272. In Nodar v. Galbreath, the Florida Supreme Court reviewed the New York Times rule, stating: The New York Times rule places a very heavy burden of proof upon the public official or public figure who seeks redress for defamation from one who criticizes or discusses the official or public conduct of the plaintiff . . . It has been said of the New York Times rule: “What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.” Exhibit 3 Page 98 of 258 462 So. 2d 803, 807 (Fla. 1984) (emphasis added). To satisfy the actual malice standard, a public figure bringing a claim for defamation must prove actual malice by clear and convincing evidence. Don King, at 44 (“on a motion for summary judgment in a public-figure defamation case, the burden is on the plaintiff to ‘present record evidence sufficient to satisfy the court that a genuine issue of material fact exists which would allow a jury to find by clear and convincing evidence the existence of actual malice on the part of the defendant.’”) (quoting Mile Marker v. Peterson, 811 So.2d 841, 846-47 (Fla. 4th DCA 2002) (emphasis added)); Lampkin-Asam v. Miami Daily News, Inc., 408 So. 2d 666, 668–69 (Fla. 3d DCA 1981) (“[W]e find absolutely no clear and convincing evidence that the defendants knew that the information published was incorrect or that the defendants had any degree, much less a high degree, of awareness of the probable falsity of this information.”). Consequently, “[f]or a public official to recover in a libel and slander action, he must prove, through clear and convincing evidence, that a defamatory falsehood relating to his official conduct was made with “actual malice,” that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Zorc v. Jordan, 765 So. 2d 768, 771 (Fla. 4th DCA 2000) (internal citation omitted). Further, the statement at issue must actually be false. Friedgood v. Peters Publ'g Co., 521 So.2d 236, 242 (Fla. 4th DCA), rev. denied, 531 So.2d 1353 (Fla.1988), Exhibit 3 Page 99 of 258 cert. denied, 488 U.S. 1042, 109 S.Ct. 867, 102 L.Ed.2d 991 (1989) (“A false statement of fact is absolutely necessary if there is to be recovery in a defamation action.”). Much like true statements of fact, statements that are pure opinion are protected by the First Amendment and cannot be the subject of a defamation claim. Zambrano v. Devanesan, 484 So. 2d 603, 606 (Fla. 4th DCA 1986) (“Pure opinion is protected under the First Amendment, but mixed opinion is not.”); Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (“True statements, statements that are not readily capable of being proven false, and statements of pure opinion are protected from defamation actions by the First Amendment.”) (applying Florida law). However, where statements in an allegedly defamatory communication amount to the expression of a “mixed opinion”28 on an issue of public concern,29 a non-public figure plaintiff must show by clear and convincing evidence “that such statements were made with knowledge of their false implications or with reckless 28 “The distinction between fact and non-actionable opinion is a question of law to be determined by the court and not an issue for the jury.” Florida Med. Ctr., Inc. v. New York Post Co., Inc., 568 So. 2d 454, 457 (Fla. 4th DCA 1990). See also Zambrano v. Devanesan, 484 So. 2d 603, 606 (Fla. 4th DCA 1986). 29 “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal citation omitted). Exhibit 3 Page 100 of 258 disregard of their truth.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).30 Florida’s courts apply the following test to determe whether a statement constitutes a non-actionable protected pure opinion or potentially actionable mixed opinion. Pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or listener as a member of the public. Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the article or assumed to exist by the parties to the communication. From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 57 (Fla. 1st DCA 1981), review denied, 412 So.2d 465 (Fla. 1982). See also Lipsig v. Ramlawi, 760 So. 2d 170, 184 (Fla. 3d DCA 2000) (“A statement is “pure opinion” only if the speaker states the facts on which he bases his opinion.”) Florida law requires a trial court to review the “allegedly defamatory words . . . in the context of the entire publication, and if the documents could not possibly have a defamatory effect, the complaint may be dismissed or a directed verdict granted.” Zorc, 765 So. 2d at 771. It is well-settled that candidates for elected office and government officials are public figures for purposes of the New York Times rule. Monitor Patriot Co. v. 30 The facts in Milkovich v. Lorain Journal Co., did not involve a public figure plaintiff and a question remains as to the test for whether a public figure plaintiff may sustain a defamation claim for a statement amounting to mixed opinion. Exhibit 3 Page 101 of 258 Roy, 401 U.S. 265, 271–72 (1971) (“it is abundantly clear that, whichever term is applied, publications concerning candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office.”). Materio was both a candidate and a public official at the time of the alleged defamatory act. Thus, Materio’s fitness for office, including her past ability to follow the law, are absolutely within the New York Times rule. Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971) (“as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office for purposes of application of . . . rule of New York Times Co. v. Sullivan.”) 31 While a plaintiff alleging defamation per se may typically rely on a presumption of express malice, there is no presumption of the more exacting 31 Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 300–01 (1971) (“Public discussion about the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule. And under any test we can conceive, the charge that a local mayor and candidate for a county elective post has been indicted for perjury in a civil rights suit is relevant to his fitness for office.”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 344–45 (1974) (“An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties . . . Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.’”) Exhibit 3 Page 102 of 258 standard of actual malice. There is a marked difference between express malice, an element under common-law defamation claims, and actual malice, a condition precedent to maintain any defamation claim brought by a public figure under the New York Times rule. Nodar, 462 So. 2d at 806 (“The elements of “actual malice,” and the standard of proof, differ from those of express malice. “Actual malice,” which under federal constitutional law must be shown before a public official or public figure may recover for defamation relating to a matter of his official conduct or of public concern, consists of knowledge of falsity or reckless disregard of truth or falsity, and must be shown by clear and convincing evidence.”). A declarant’s mere negligence, ill will, evil intent or spite are insufficient to show actual malice. Don King, 40 So. 3d at 44 (“Ill will is different than actual malice under the defamation test. Thus, a showing of ill will, alone, cannot establish actual malice.”) (internal citations omitted). Further, “[a]n intention to portray a public figure in a negative light, even when motivated by ill will or evil intent, is not sufficient to show actual malice unless the publisher intended to inflict harm through knowing or reckless falsehood.” Id. at 45.32 In Harte-Hanks Communications, Inc. v. Connaughton, the U.S. Supreme 32 Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (“Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author in fact entertained serious doubts as to the truth of his publication or acted with a “high degree of awareness of ... probable falsity.”) (internal citation omitted). Exhibit 3 Page 103 of 258 Court restated the actual malice standard. the actual malice standard is not satisfied merely through a showing of ill will or “malice” in the ordinary sense of the term . . . Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” cannot be fully encompassed in one infallible definition, we have made clear that the defendant must have made the false publication with a “high degree of awareness of ... probable falsity,” or must have “entertained serious doubts as to the truth of his publication.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666-7 (1989) (emphasis added; internal citation omitted). The failure of a defamation defendant to thoroughly investigate a statement does not, by itself, evidence actual malice. Tobinick v. Novella, 108 F. Supp. 3d 1299, 1310 (S.D. Fla. 2015) (The “failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy. Similarly, mere proof of ill will on the part of the publisher may likewise be insufficient.”); St. Amant v. Thompson, 390 U.S. 727, 733 (1968) (“Failure to investigate does not in itself establish bad faith . . . St. Amant's mistake about his probable legal liability does not evidence a doubtful mind on his part.”). Finally, a defamation defendant’s “[r]eliance upon a reliable source insulates [the] defendant from a finding of actual malice as a matter of law.” Dockery v. Florida Democratic Party, 799 So. 2d 291, 296 (Fla. 2d DCA 2001). In St. Amant, Exhibit 3 Page 104 of 258 the Supreme Court identified as evidence that would likely support a finding of actual malice three categories: (1) evidence the story was “fabricated,” (2) evidence “so inherently improbable that only a reckless man would have put [it] in circulation,” or (3) evidence “based wholly on” a source that the defendant had “obvious reasons to doubt,” such as “an unverified anonymous telephone call.” St. Amant, at 732. Therefore, to survive Petitioner’s motion below, Materio needed to establish the “merit” of her claim, Materio (i.e., a public figure plaintiff) needed to prove by clear and convincing evidence that WPB Residents 1) made false statements of fact, 2) with a high degree of awareness of their probable falsity. She failed in this regard. D. MATERIO CANNOT SHOW ACTUAL MALICE AS A MATTER OF LAW AS WPB RESIDENTS RELIED ON OFFICIAL RECORDS SUPPORTING ITS FACTUAL ASSERTIONS, AND THE PUBLICATION QUALIFIES AS PROTECTED PURE OPINION Applying the law to the facts at bar, Petitioner relied exclusively upon publicly available information, including: 1) property and tax records published by constitutional officers in Palm Beach and St. Lucie Counties; and 2) documents signed or ratified by Materio that were filed in the Official Records of St. Lucie County. In 2017, Materio filed a certificate of trust, including the Trust documents coinciding with the sale of the St. Lucie Property. The Trust documents, including Exhibit 3 Page 105 of 258 the “Certificate of Trust” referenced only the 2003 Trust document, without reference to any amendments. (App. 44.) The Trust document did not list Materio’s father, Joseph Silvestri, as a remainderman or beneficiary of a life estate. (App. 47, Art. 4.1.) The Trust listed the sole beneficiary as Materio’s mother, who had predeceased the execution of the Mortgage by at least a year. Even if the Trust did list Mr. Silvestri as a beneficiary, as a matter of Florida law, revocable trusts do not convey a possessory interest to a beneficiary until the death of the settlor, (i.e. Materio). Florida law does not recognize a trust beneficiary as eligible for homestead tax exemption unless a present possessory interest is conveyed by the trust document itself. See Fla. Admin. Code Ann. r. 12D-7.011 (2017) (“Homestead tax exemption may not be based upon residence of a beneficiary under a trust instrument which vests no present possessory right in such beneficiary.”). The Mortgage, including eligibility requirements, is well-regulated by Florida law and excludes persons not occupying the residence from eligibility for such funds. The Mortgage itself displays Materio’s signature, as an individual and as a trustee, as mortgagors, with a covenant that the borrower occupy the premises as a primary residence. (App. 62.) The tax and property records of Materio in Palm Beach and St. Lucie Counties show her as the beneficiary of homestead tax exemptions on two properties Exhibit 3 Page 106 of 258 simultaneously. Petitioner had no duty to disbelieve the documents in the Official Records, Florida law or statements by government entities. Dockery, 799 So. 2d at 296 (“defendant’s “[r]eliance upon a reliable source insulates [the] defendant from a finding of actual malice as a matter of law.”). Petitioner had no reason to disbelieve such records either; this, it would be impossible to prove actual malice. Church of Scientology Int’l v. Behar, 238 F.3d 168, 175 (2d Cir. 2001) (no actual malice where author relied on sources, including a police report); Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 562–63 (5th Cir. 1997) (no actual malice as a matter of law where arson allegations were based on a police report). The publication at issue constituted “pure opinion” under defamation law, protected by the First Amendment, where it listed the facts upon which it relied and gave citations to its sources of information for readers to scrutinize, and agree with or disregard. (App. 42-43.) Klayman v. City Pages, 650 Fed. Appx. 744, 751 (11th Cir. 2016) (“Evidence that an article contains information that readers can use to verify its content tends to undermine claims of actual malice. Where a publisher gives readers sufficient information to weigh for themselves the likelihood of an article's veracity, it reduces the risk that readers will reach unfair (or simply incorrect) conclusions, even if the publisher itself has.”). The import of the publication doesn’t actually convey a message of criminal Exhibit 3 Page 107 of 258 conduct, as the banner clearly conveys the message that Materio “knows how to work the system.” Someone who knows how to work the system skirts rules without violating them. Materio was a public official and a candidate for elective office, necessitating a satisfaction of the New York Times rule (i.e. actual malice). The actual malice standard is not met by showing mere falsity. See Mile Marker, 811 So.2d at 845 (falsity alone is insufficient to make a claim for defamation). Actual malice is a subjective standard, where “a plaintiff must produce evidence that the defendants actually entertained serious doubts as to the veracity of the published account, or [were] highly aware that the account was probably false.” Klayman, at 749 (internal citation omitted). Thus, the focus is on the information known to WPB Residents at the time of publication. Moreover, the burden was on Materio, as Plaintiff to establish actual malice by clear and convincing record evidence. Don King Productions, Inc., 40 So. 3d at 44. She cannot meet this burden, rendering her claim for defamation meritless for purposes of Florida’s Anti-SLAPP law.33 33 Stewart v. Sun Sentinel Co., 695 So. 2d 360, 363 (Fla. 4th DCA 1997) (“Where the facts are not in dispute in defamation cases, however, pretrial dispositions are “especially appropriate” because of the chilling effect these cases have on freedom of speech.”) (emphasis added); Dockery, 799 So. 2d at 294 (“when a motion for summary judgment is brought by a defendant against a public-figure plaintiff, such as Dockery, in a defamation action in which the actual malice test applies, summary Exhibit 3 Page 108 of 258 It is beyond dispute that the publication was made during the course of a political campaign. The statements made therein, as a matter of law, address the fitness of the candidate (i.e. a matter of public concern). Gertz, 418 U.S. at 344–45 (1974) (“society's interest in the officers of government is not strictly limited to the formal discharge of official duties . . . Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.’”)34 Thus, Materio’s complaint was filed primarily because Petitioner published its statements, thereby exercising its constitutional right of free speech in connection with a public issue. See Fla. Stat. § 768.295(3). E. THE CLAIM OF CONSPIRACY TO DEFAME IS UNTENABLE The trial court erred in failing to dismiss Materio’s claim for conspiracy to defame, which cannot stand independently of the substantive count of defamation. Ovadia v. Bloom, 756 So. 2d 137, 140 (Fla. 3d DCA 2000) (“The conspiracy to defame claim cannot stand where, as here, the defamation action fails. There being judgments are to be more liberally granted.”); Cronley v. Pensacola News-Journal, Inc., 561 So. 2d 402, 405 (Fla. 1st DCA 1990) (“in cases which involve the First Amendment, and where recklessness in publication of allegedly libelous information is at issue, summary judgments should be granted more liberally.”) (citing Menendez v. Key West Newspaper Corp., 293 So.2d 751 (Fla. 3d DCA 1974)). 34 Snyder, 562 U.S. at 453 (“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political . . .or other concern to the community; that is, a subject of general interest and of value and concern to the public.”). Exhibit 3 Page 109 of 258 no defamation, the gist of the defamation conspiracy, there can be no conspiracy claim.”) See Buckner v. Lower Fla. Keys Hosp. Dist., 403 So.2d 1025, 1027 (Fla. 3d DCA 1981). CONCLUSION The requirements for the issuance of the writ have been established, and this Court should now issue the writ and grant the requested relief. Dated: April 4, 2019 Leonard Feuer, P.A. 240 10th Street West Palm Beach, FL 33401 Tel: (561) 659-1360 /s/ Leonard Feuer Leonard Feuer, Esq. Florida Bar No.: 501751 Email: [email protected] CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to counsel for Respondent, Mr. Joseph Janssen, Esq., Janssen, Siracusa & Keegan, PLLC, 120 S. Olive Avenue, Suite 504, West Palm Beach, FL 33401, via [email protected], [email protected], [email protected], and counsel for Cornerstone Solutions Florida, LLC, and Pradeep Asnani, Mr. William Shepherd, Esq., Holland & Knight, 222 Lakeview Avenue, Suite 1000, West Palm Exhibit 3 Page 110 of 258 Beach, FL 33401, via [email protected], [email protected], by ELECTRONIC MAIL and the Hon. Jeffrey D. Gillen, 205 N. Dixie Highway, Room 9.1216, West Palm Beach, FL 33401, on this the 4th day of April 2019. Leonard Feuer, P.A. 240 10th Street West Palm Beach, FL 33401 Tel: (561) 659-1360 /s/ Leonard Feuer Leonard Feuer, Esq. Florida Bar No.: 501751 Email: [email protected] CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS I HEREBY CERTIFY that the Petition for Writ of Certiorari filed in this case complies with the font requirements of Rule 9.100(1) of the Florida Rules of Appellate Procedure. /s/ Leonard Feuer Leonard Feuer, Esq. Florida Bar No.: 501751 Filing # 87577450 E-Filed 04/05/2019 06:27:15 PM Exhibit 3 Page 111 of 258 THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT CASE NO. ______ CORNERSTONE SOLUTIONS FLORIDA, LLC and PRADEEP ASNANI a/k/a RICK ASNANI Defendants/Petitioners, vs. SHARON “SHANON” MATERIO, Plaintiff/Respondent. On Review from the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida Case No. 502018CA012422XXXXMB PETITION FOR WRIT OF CERTIORARI William N. Shepherd, Esq. Florida Bar No. 88668 [email protected] Seth J. Welner, Esq. Florida Bar No. 99214 [email protected] Jeff Schacknow, Esq. Florida Bar No. 1004628 [email protected] HOLLAND & KNIGHT LLP 222 Lakeview Avenue, Suite 1000 West Palm Beach, FL 33401 T: 561.833.2000 F: 561.650.8399 Counsel for Petitioners Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani Exhibit 3 Page 112 of 258 TABLE OF CONTENTS Page I. INTRODUCTION ...... 1 II. JURISDICTION ...... 3 III. STATEMENT OF CASE AND FACTS ...... 6 A. A Homestead Tax Exemption Was Taken on Materio’s West Palm Beach and Port St. Lucie Homes at the Same Time ...... 7 B. Materio Took Advantage of a Port St. Lucie Grant Program ...... 8 C. Defendants Reviewed and Relied on Public Records to Ascertain the Above Facts, and Confirmed Those Facts Prior to the Publication of the Mailer ...... 10 D. Prior to Publication - State Attorney’s Office Tells Asnani That Materio Should Be Investigated By the FBI for Homestead Fraud and Grand Theft ...... 10 E. After State Attorney Meeting, Asnani and Cornerstone Worked With WPB Residents to Prepare the Mailer for Distribution by WPB Residents ...... 12 F. The Revocable Trust Left Ownership of the Trust Corpus, Including the Port St. Lucie Property, in Materio ...... 13 G. Materio Engaged Counsel to Prepare a First Amendment to the Revocable Trust; a Document was Prepared and Executed but Never Filed With the Public Record ...... 15 IV. NATURE OF RELIEF SOUGHT ...... 16 V. ARGUMENT ...... 16 A. The Trial Court’s Denial Of The Motion To Dismiss Materio’s SLAPP Suit Departs From The Essential Requirements Of Law And Subjects Defendants to Material, Irreparable Harm...... 16 i #66799873_v1 Exhibit 3 Page 113 of 258 B. The Trial Court Departed From The Essential Requirements Of Law When It Excluded “Electioneering Communication” From the Protection of Chapter 768’s Anti-SLAPP Provisions ...... 19 C. The Trial Court Departed From The Essential Requirements Of Law When It Improperly Applied A Test For Statutes Which Are In Derogation Of The Common Law ...... 21 D. Chapter 106 Defines Specific Rules For Campaigns and Election Communications ...... 24 E. Trial Court’s Stated Analysis Mandates Absurd Results ...... 26 F. Second District Court of Appeal Issued Binding Opinion Day After Lower Court Argument - Which Lower Court Failed to Follow ...... 28 G. Statutorily Mandated Two-Step Anti-SLAPP Analysis...... 29 1. Materio’s Claim Was Brought Primarily Because Of The Exercise Of Free Speech In Connection With A Public Issue...... 30 2. Materio’s Claim is Without Merit ...... 31 (i) The Statement That “Materio Had a Homestead Exemption for Her West Palm Beach Home and Port St. Lucie Home at the Same Time” is Entirely Correct ...... 31 (ii) Materio’s Decision to Establish Revocable Trust Means She is Still the Owner ...... 33 (iii) Florida Law Only Allows One Homestead ...... 34 (iv) The Statement that “Materio Received a $50,000 Federally Funded Grant That Required the Borrower to Live at the Port St. Lucie Home” is Not Defamatory ...... 35 H. The Statements are True Even If The Court Applies the Former Commissioner’s Flawed Analysis of Her Revocable Trust ...... 36 I. As A Matter Of Law Defendants Did Not Act With Actual Malice ...... 38 ii #66799873_v1 Exhibit 3 Page 114 of 258 1. Defendants Performed Substantial Research Prior to the Publication of the Mailer, And The Research Supported Each Statement Made ...... 39 2. At the Time the Mailer was Published, Multiple Law Enforcement Agencies had Reviewed Materio With Respect to the Statements Contained Within the Mailer— That Investigation Continues ...... 40 J. The Statements in the Mailer Constituted Non-Actionable Pure Opinions ...... 42 K. Because Defamation Fails, Conspiracy to Defame Also Fails ...... 43 VI. CONCLUSION ...... 43 CERTIFICATE OF SERVICE ...... 44 CERTIFICATE OF COMPLIANCE ...... 45 iii #66799873_v1 Exhibit 3 Page 115 of 258 TABLE OF AUTHORITIES Page Cases Ballard v. Curatolo, 363 So. 2d 864 (Fla. 4th DCA 1978) ...... 21, 22 Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984) ...... 39 Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3d DCA 1981) ...... 43 Dep't of Revenue v. Varela, 67 So. 3d 1205 (Fla. 4th DCA 2011) ...... 5 Dockery v. Florida Democratic Party, 799 So. 2d 291 (Fla. 2d DCA 2001) ...... 40 Don King Prod., Inc. v. Walt Disney Co., 40 So. 3d 40 (Fla. 4th DCA 2010) ...... 38 Eu v. San Francisco City Democratic Cent. Comm., 489 U.S. 214 (1989) ...... 1 Fla. Nat. Bank of Palm Beach Cty. v. Genova, 460 So. 2d 895 (Fla. 1984) ...... 33 Fla. State Univ. Bd. Of Trs. v Monk, 68 So. 3d 316 ...... 4 Garrison v. Louisiana, 379 U.S. 64 (1964) ...... 39 Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000) ...... 24 Green v. Broward General Medical Center, 356 So. 2d 877 (Fla. 4th DCA 1978) ...... 21, 22 Green v. Dep't of Highway Safety & Motor Vehicles, 905 So. 2d 922 (Fla. 1st DCA 2005) ...... 28 Gundel v. AV Homes, Inc., et al., Case No. 2D18-899, 2019 WL 405843, *5 (Fla. 2d DCA Feb. 1, 2019) ...... 2, 4, 5, 20, 28, 29 Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) ...... 42 Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983) ...... 38, 39 Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal. App. 4th 1050 (2005) ...... 20 Irven v. Dep't of Health & Rehab. Services, 790 So. 2d 403 (Fla. 2001) ...... 23 iv Exhibit 3 Page 116 of 258 James v. Leigh, 145 So. 3d 1006 (Fla. 1st DCA 2014) ...... 4 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008) ...... 31 Keck v. Eminisor, 104 So.3d 359 (Fla. 2012) ...... 5 Klayman v. City Pages, 650 Fed. Appx. 744 (11th Cir. 2016) ...... 42 Klepper v. Breslin, 83 So. 2d 587 (Fla. 1955) ...... 24 Martin County v. Edenfield, 609 So. 2d 27 (Fla. 1992) ...... 24 Martinec v. Early Bird Int'l, Inc., 126 So. 3d 1115 (Fla. 4th DCA 2012) ...... 5 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ...... 1 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ...... 39 Ovadia v. Bloom, 756 So. 2d 137 (Fla. 3d DCA 2000) ...... 43 Robinson v. Fla. Peninsula Ins. Co., 178 So. 3d 947 (Fla. 4th DCA 2015) ...... 4 Sandholm v. Kuecker, 962 N.E.2d 418 ...... 17 St. Amant v. Thompson, 390 U.S. 727 (1968) ...... 39 State v. Tullis, 970 So. 2d 912 (Fla. 5th DCA 2007) ...... 28 Wright Dev. Grp., LLC v. Walsh. 939 N.E.2d 389 (Ill. 2010) ...... 17 Statutes § 106.011(8)(a), Florida Statutes ...... 25 § 196.031(1), Florida Statutes ...... 34, 37 § 420.907, Florida Statutes ...... 35 § 736.0505(1)(a), Florida Statutes ...... 33 § 768.295(1), Florida Statutes ...... 17, 18, 19 § 768.295(2)(a), Florida Statutes ...... 19, 26 § 768.295(3), Florida Statutes ...... 18 v #66799873_v1 Exhibit 3 Page 117 of 258 § 768.295(4), Florida Statutes ...... 3, 18, 26 § 768.295, Florida Statutes ...... 1, 2, 16, 21 § 92.525, Florida Statutes ...... 17 Other Authorities Art. V § 4(b)(3), Fla. Const...... 3 Consumer Pamphlet: The Revocable Trust in Florida (2016), The Florida Bar ...... 33 Fla. Admin. Code Ann. r. 12D-7.007 ...... 34 Rules Fla. R. App. P. 9.030(b)(2)(A) ...... 3 vi #66799873_v1 Exhibit 3 Page 118 of 258 I. INTRODUCTION This is a case of an attack to silence political speech. As the Supreme Court has made clear: “No speech is entitled to greater constitutional protection than [political speech].” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347(1995). Indeed, the “First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco City Democratic Cent. Comm., 489 U.S. 214, 223 (1989). Pradeep “Rick” Asnani and Cornerstone Solutions Florida, LLC, (“Cornerstone”) (collectively, “Defendants”) petition this Court for a writ of certiorari quashing the trial court’s order dated March 6, 2019 denying Asnani and Cornerstone’s motion to dismiss the Plaintiff Sharon “Shanon” Materio’s (“Materio” or “Former Commissioner”) lawsuit based on its finding that an “electioneering communication” is not protected under § 768.295, Florida Statutes. (A6-17)1. That statute prohibits Strategic Lawsuits Against Public Participation (“SLAPP”), brought without merit, and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue. The harm caused by continued litigation abuse resulting from the trial court’s denial of the motion to dismiss in violation of § 768.295, Florida Statutes, cannot be undone by plenary appeal and is a departure from the essential requirements of law. Thus the 1 “A” means the Appendix to this petition. The Trial Court’s Order was rendered on March 6, 2019, and thus this petition is timely. 1 Exhibit 3 Page 119 of 258 Court has certiorari jurisdiction. Gundel v. AV Homes, Inc., et al., Case No. 2D18- 899, 2019 WL 405843, *5 (Fla. 2d DCA Feb. 1, 2019) (invoking certiorari jurisdiction in SLAPP suit where denial of motion to dismiss brought pursuant to § 768.295, Florida Statutes, was a departure from the essential requirements of law and resulted in harm that postjudgment appeal could not correct) (citing ch. 2000- 174, §1). More specifically, Materio lost her bid for reelection and now seeks defamation damages for political speech questioning her ability to “Work the System…For Herself”. The trial court’s conclusion that Election Communications are exempted from the Anti-SLAPP Statute constituted a departure from the essential requirements of law, resulting in harm that is irreparable. Materio, a West Palm Beach City Commissioner at the time of the alleged publication in this defamation lawsuit, brought this suit with the goal of silencing those who would question her behavior while serving in public office. The publication at issue, a direct mail postcard to potential voters, constituted a communication made in connection with a public issue (Materio’s fitness for office) as that term is defined in the Anti- SLAPP Statute. Because the SLAPP Statute applies to the mailer, the trial court further departed from the essential requirements of law when it failed to find, or even consider, that the lawsuit lacks merit. The defamation lawsuit lacks merit because the publication is truthful and therefore not defamatory. And even if the publication 2 #66799873_v1 Exhibit 3 Page 120 of 258 was not truthful, the public records supported the statements made in the mailer. Moreover, the statements were further bolstered by the Corruption Unit of the State Attorney’s Office, which reviewed the underlying research relating to the statements and recommended, prior to the publication, Materio for state and federal criminal investigation based on her conduct. Because of these factors, Materio cannot, as a matter of law, meet an actual malice standard required of public official defamation plaintiffs. Thus, the trial court departed from the essential requirements of law when it denied the Defendants’ Anti-SLAPP motion to dismiss brought pursuant to 768.295(4), Florida Statutes. Because the trial court’s order departs from the essential requirements of law and causes irreparable harm that cannot be remedied on appeal, the order should be quashed, Asnani and Cornerstone’s motion to dismiss should be Granted, and Materio’s suit should be dismissed. II. JURISDICTION Article V § 4(b) of the Florida Constitution provides that the district courts of appeal have jurisdiction to issues writs of certiorari. See Art. V § 4(b)(3), Fla. Const.; see also Fla. R. App. P. 9.030(b)(2)(A). The order on review was rendered on March 6, 2019. This petition is timely under rule 9.100(c)(1). Certiorari is proper when a trial court’s order departs from the essential requirements of the law, resulting in a material injury that cannot be corrected on postjudgment appeal. See 3 #66799873_v1 Exhibit 3 Page 121 of 258 Robinson v. Fla. Peninsula Ins. Co., 178 So. 3d 947, 948 (Fla. 4th DCA 2015); Gundel, 2019 WL 405843, *5. As explained below, those requirements are met here. In the context of the Anti-SLAPP Statute, the harm that results from the court’s improper denial of a motion to dismiss is precisely the harm that the Anti- SLAPP Statute seeks to prevent – an attack on free speech and unlawful litigation. See Gundel, 2019 WL 405843, *5. The Second District Court of Appeal’s recent invocation of certiorari jurisdiction over a denial of a motion to dismiss a SLAPP suit was entirely correct because, as noted by that court, the Anti-SLAPP Statute is similar in kind to those statutes that provide for immunity from suit where the statuary protection cannot be adequately restored once it is lost through litigation and trial. See id. (citing James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014) (“When the trial court denies a motion to dismiss on immunity grounds, certiorari review of the non-final order is proper because absolute immunity protects a party from having to defend a lawsuit at all and waiting until final appeal would render such immunity meaningless if the lower court denied dismissal in error.” (citing Fla. State Univ. Bd. Of Trs. v Monk, 68 So. 3d 316, 318 (Fla. 1st DCA 2011)). If certiorari review is not available, the substantive right created by the Anti- SLAPP Statute “is illusory” and the very policy that animates the decision to prevent 4 #66799873_v1 Exhibit 3 Page 122 of 258 SLAPP suits is frustrated such that the “statutory protection becomes essentially meaningless for the individual defendant.” Gundel, 2019 WL 405843, *5 (citing Keck v. Eminisor, 104 So.3d 359, 365-66 (Fla. 2012)). Indeed, the law requires the expeditious dismissal of SLAPP suits so that public officials cannot chill the rights of citizens to public participation and free speech and so that public officials may not use courts as a weapon against those who would speak out against their conduct or on issues of public importance. Permitting the Former Commissioner’s SLAPP suit to continue in this case, and ruling that Electioneering Communications are not protected from such suits, is a threat not only to Asnani and Cornerstone, but also to any person who might dare to speak against a well-funded elected official. This Court’s review is de novo because the appeal raises Constitutional principles of First Amendment protected free speech as well as issues of statutory construction regarding Chapter 768’s protection of free speech from SLAPP suits. Martinec v. Early Bird Int'l, Inc., 126 So. 3d 1115, 1117 (Fla. 4th DCA 2012) (reviewing trial court’s interpretation of statute under de novo standard); Dep't of Revenue v. Varela, 67 So. 3d 1205, 1205 (Fla. 4th DCA 2011) (same). The Court’s de novo review applies to both prongs of the Anti-SLAPP law: (1) whether the lawsuit was primarily brought because Defendants exercised the constitutional right of free speech in connection with a public issue; and (2) whether the plaintiff’s case has merit. 5 #66799873_v1 Exhibit 3 Page 123 of 258 III. STATEMENT OF CASE AND FACTS This certiorari petition arises out of a defamation claim filed against an electioneering communications organization, or ECO (WPB Residents for Integrity, Inc.) (referred to hereafter as “WPB Residents”), a small West Palm Beach communication company (Cornerstone), and Cornerstone’s President (Asnani). The speech that is the subject of the defamation claim is a two sided mail piece sent to voters that reported on two issues: (1) that Materio received two homestead exemptions on private homes while the law allows for only one, and (2) that Materio received government funding for repairs to her home that she was not entitled to and reaped a profit on the sale of the home after the repair work was completed. That mailer is set out below: 6 #66799873_v1 Exhibit 3 Page 124 of 258 (A42-43). A. A Homestead Tax Exemption Was Taken on Materio’s West Palm Beach and Port St. Lucie Homes at the Same Time In 2010 Materio, together with her husband, purchased by warranty deed a home in Port St. Lucie, Florida (“Port St. Lucie Property”). (A68-69). At the time of the purchase of the Port St. Lucie Property, the Materios resided in West Palm Beach, Florida. (A283). Materio’s home in West Palm Beach has received a homestead tax exemption from at least the relevant time period of 2015-2017 (A64- 66). Shortly after purchasing the Port St. Lucie Property, the Materios transferred that home by Warranty Deed to the Materio Family Trust (the “Revocable Trust”). (A70).2 They sold the home in September, 2017 to a third party. 2 The Revocable Trust was created in 2003, and was for the benefit of Materio’s mother while her father was incarcerated in Federal prison. (A284-285). The revocable nature of the trust is addressed more fully in section III. F below. 7 #66799873_v1 Exhibit 3 Page 125 of 258 Prior to the 2017 sale of the Port St. Lucie Property, homestead tax exemptions were claimed on that property from 2012 through 2017. (A169-170). On the 2015 tax roll, the Property Appraiser for Port. St. Lucie listed “Sharon Silvestri” as the owner of the Port. St. Lucie Property for purposes of the homestead tax exemption. (A60). “Sharon Silvestri” is Materio. Silvestri is her maiden name. (A628-629). On the 2016 tax roll, the Property Appraiser for Port. St. Lucie lists “Joseph Silvestri” as the owner of the Port. St. Lucie Property for purposes of the homestead tax exemption (together with Materio, “TR.”). (A61). No deed or other instrument of public record conveyed the Port St. Lucie Property to Joseph Silvestri at any time.3 B. Materio Took Advantage of a Port St. Lucie Grant Program Materio’s home in Port St. Lucie was in need of significant repairs. To fund this repair work, Materio received governmental funding from a program designed to help low income residents of Port St. Lucie. Materio herself was called to Port St. Lucie for the closing. (A698; 712). On June 8, 2016, a Mortgage with the City of Port St. Lucie Mortgage Housing Assistance Program was executed and subsequently recorded in the public record as an encumbrance on the Port St. Lucie Property. (A73-77). A Note was also 3 Joseph Silvestri is Materio’s father. (A284). As stated above, until the Port St. Lucie Property was sold in 2017, the only conveyance of record was the 2010 transfer of the property into the Revocable Trust. (A70). 8 #66799873_v1 Exhibit 3 Page 126 of 258 executed that same day. (A79-80). The Note and Mortgage were acquired pursuant to a city program designed for low income and ultra-low income Port St. Lucie residents seeking improvements to homes in blighted communities. (A690-691). Both the Note and Mortgage were signed by Materio, individually, and signed a second time by Materio as the Trustee of the Revocable Trust. Materio signed the Note and Mortgage as the “Borrower” or “Mortgagor.” Id. No other person or entity signed the Note. (A77). No other person or entity signed the Mortgage. (A80). The Mortgage required that the Borrower “acknowledge that this property must remain Mortgagor’s primary residence until this mortgage is satisfied…”. (A74-75). Materio acknowledged this by signing before a notary and two witnesses. Id. In that Note, as the Borrower for a “Loan in the amount of $50,000”, Materio further agreed to keep the Port St. Lucie home as her “permanent residence”. (A80- 81), acknowledging that “[a]t such time as Borrower moves to another location as a permanent residence, Borrower will be in default, even if all other payments and obligations are current, unless the remaining principle balance due under this Note and the Mortgage is paid in full.” (A80-81). Over the next several months Materio’s contractors were paid directly by the City of Port St. Lucie to improve the Port St. Lucie Property with the repair of a roof, addition of a new hot water heater, and various other home improvements. (A304- 309). 9 #66799873_v1 Exhibit 3 Page 127 of 258 In 2017, a few months after these renovations, Materio sold the Port St. Lucie Property to a third party purchaser for over $100,000 more than she paid for it in 2010. (A89). As part of the sale, Materio signed a Warranty Deed to the third-party purchaser, both in her individual capacity and as the Trustee for the Revocable Trust. (A71). In connection with the 2017 sale, Materio filed a Certificate of Trust that attached a copy of the instrument from 2003 creating the Revocable Trust. (A45- 58). That filing did not contain any trust amendments and listed her mother, Delores, as the sole beneficiary, even though her mother had passed away years earlier. Id. C. Defendants Reviewed and Relied on Public Records to Ascertain the Above Facts, and Confirmed Those Facts Prior to the Publication of the Mailer Prior to the publication of the mailer, the Defendants reviewed documents contained within the public record to confirm the accuracy of the mailer. (A91-94; A133-134). The mailer itself cites to many of those materials. (A42-43). D. Prior to Publication - State Attorney’s Office Tells Asnani That Materio Should Be Investigated By the FBI for Homestead Fraud and Grand Theft After reviewing the materials identified above and prior to the publication of the mailer, Asnani met with the Palm Beach State Attorney’s Office Public Corruption Unit to discuss Materio’s public records. (A92-93). Asnani met, in person, with an Assistant State Attorney and a Detective specially assigned to the Public Corruption Unit. (A92-93; A812). They reviewed the documents that form 10 #66799873_v1 Exhibit 3 Page 128 of 258 the basis of the statements targeted by the Former Commissioner’s SLAPP suit. While they concluded that the Palm Beach State Attorney did not have geographic jurisdiction for the St. Lucie County matters, they stated to Asnani that the matters “should be investigated” by the FBI and the Port St. Lucie State Attorney’s Office. (A92-93; A812). Specifically, in a memorandum created by the State Attorney’s Office to memorialize the meeting and the direction given to Asnani, the State Attorney’s Office wrote: During the meeting [with Mr. Asnani] it was determined that the allegation of double Homestead Exemption and the $50,000.00 grand theft from the Federal Government Housing and Urban Development home improvement grant should be investigated by Federal Investigators (F.B.I.) and / or Port St. Lucie State Attorney’s Office as the residence in question is located in Port St. Lucie. (A809-812 ). The memorandum is reproduced below on the next page: 11 #66799873_v1 Exhibit 3 Page 129 of 258 E. After State Attorney Meeting, Asnani and Cornerstone Worked With WPB Residents to Prepare the Mailer for Distribution by WPB Residents After the meeting at the State Attorney’s Office and additional review of the public documents, Asnani and his staff prepared the mailer for WPB Resident’s 12 #66799873_v1 Exhibit 3 Page 130 of 258 distribution. The mailer was sent to residents of West Palm Beach before the election. (A93). The election was held on March 13, 2018 and the Former Commissioner was defeated. Subsequent to her loss, Materio drafted the defamation Complaint and a pre-filing draft was forwarded to a handpicked, local reporter who confronted Asnani about the allegations. (A130-132). The resulting defamation suit filed on October 1, 2018 (A17-24). F. The Revocable Trust Left Ownership of the Trust Corpus, Including the Port St. Lucie Property, in Materio In response to the Defendants’ Motion to Dismiss, Materio claimed that the mailer was false because even though she purchased the home in 2010, life estates granted to her parents through the Revocable Trust permitted her parents to seek homestead tax exemptions and loans encumbering the property. (A167-168; 190). By way of background, Materio created the Materio Family Trust (the Revocable Trust) in 2003 for the sole benefit of her mother Delores Silvestri to provide for her mother during her mother’s lifetime (the “Trust Document”).4 The Trust Document provides that at any time and without cause, Materio, in her sole discretion, “shall have the right and power to alter, amend or revoke this Agreement, either in whole or in part…” (A48). 4 The Trust Property is described in the 2003 document creating the Revocable Trust as “those assets listed on Schedule “A,” but there is no evidence in the record showing that a Schedule “A” was ever created. 13 #66799873_v1 Exhibit 3 Page 131 of 258 The Trust Document further provides that “[u]nder no circumstances shall Delores have the power or authority to demand any distribution from the Trustee,” that all power and authority over the trust assets remained with Materio. Upon the revocation of the Trust, “all trust property held by the Trustee shall be transferred and delivered to [Materio] or as [she] otherwise may direct in the written notice to the Trustee.” (A47-48). The Trust Document further provides that the Trustee (Materio) in its “sole and uncontrolled discretion,” may “pay to or for the benefit of Delores so much of the principal of this Trust as the Trustee may determine. The Trustee may choose to make no distributions of income or principal to Delores.” (A47). At the time of Delores’ death, Trust Documents calls for “the then balance of principal and accumulated income remaining in the trust fund shall be divided into equal share and distributed…” The Trust Document makes no provision for the Revocable Trust’s continuance beyond Delores’ death other than the full distribution of any remaining assets. (A48). Delores Silvestri died in 2014. (A168). Despite her death, the Port St. Lucie Property continued to receive homestead tax exemptions on January 1, 2015 and January 1, 2016. (A61-62). 14 #66799873_v1 Exhibit 3 Page 132 of 258 G. Materio Engaged Counsel to Prepare a First Amendment to the Revocable Trust; a Document was Prepared and Executed but Never Filed With the Public Record On January 7, 2016, more than a year after Delores’ death, and after two January 1 homestead tax cycles had passed, a first amendment was created to the Revocable Trust. The First Amendment to the Materio Family Trust Under Agreement dated September 19, 2003 (“Amendment”) added a new Section 2.2(e) creating what is referred to as “beneficial title” to the Port St. Lucie home for the life of Joseph Silvestri. The added provision states: “For the term of her life, Joseph Silvestri (“Joseph”) shall have beneficial title to the following described real property located in ST. LUCIE COUNTY, provided that said property is still held by the Trust . . .” (A323-324) (and further describing the property as the Port St. Lucie Property). The Amendment further goes on to delete all references to Delores Silvestri, but makes no insertions of any other names in any other sections of the Amendment other than to create a new provision of “beneficial title” for Mr. Silvestri. This new status was not a status that Delores Silvestri had previously benefited from under the Revocable Trust.5 (A325-336). 5 The Amendment begins 2.2(e) with the phrase “For the term of her life”. The choice of pronoun leaves the reader, and left the trial court, unclear as to whose life it is pointing to – the Former Commissioner as Grantor and Trustee or Delores as the only other female identified in Section 2.2. Under any circumstance, as a new counsel who drafted a new Amendment to the Revocable Trust drafted by previous counsel, it is possible but unlikely to be an error as it was specifically crafted for this 15 #66799873_v1 Exhibit 3 Page 133 of 258 The Amendment was not filed in the public record, nor was it attached to the Trust Document as filed in the 2017 Certificate of Trust. (A45-58). Mr. Silvestri passed away in April of 2017 and the house was sold soon thereafter. (A286). The unamended Revocable Trust was filed in the public record with the sale paperwork showing the sole beneficiary as Delores. IV. NATURE OF RELIEF SOUGHT Asnani and Cornerstone seek a writ of certiorari quashing the trial court’s order dated March 6, 2019, that denied their motion to dismiss the SLAPP suit filed against their First Amendment political-free-speech rights. They seek for this court to exercise its de novo review authority and quash the trial court’s order and instead dismiss the Former Commissioner’s suit on the grounds that it violates the Florida Anti-SLAPP Statute. V. ARGUMENT A. The Trial Court’s Denial Of The Motion To Dismiss Materio’s SLAPP Suit Departs From The Essential Requirements Of Law And Subjects Defendants to Material, Irreparable Harm. Florida, like many other states, has enacted legislation prohibiting SLAPP suits. See § 768.295, Fla. Stat. (2017).6 SLAPP suits are lawsuits brought against Revocable Trust. Counsel’s Affidavit filed in response to the Anti-SLAPP motion does not address this issue. 6 At the lower court, Materio challenged the use of declarations in support of Anti- SLAPP motions. The lower court did not rule on the issue but did say, “However, a case cited by Plaintiff, raises some doubt as to Plaintiff’s own argument that 16 #66799873_v1 Exhibit 3 Page 134 of 258 concerned citizens, bloggers, journalists, and others who speak out on issues of public concern. SLAPP suits are specifically aimed at preventing citizens from exercising their political rights or punishing those who have done so. Sandholm v. Kuecker, 962 N.E.2d 418, 427 (Ill. 2012) (quoting Wright Dev. Grp., LLC v. Walsh. 939 N.E.2d 389, 395 (Ill. 2010)). The stated intent of Florida’s Anti-SLAPP Statute is to protect “the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state....” § 768.295(1). The statute also states that it is the “public policy” of Florida that persons “not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues.” Id. Consistent with these values, Florida’s Anti-SLAPP law prohibits meritless claims based primarily on the exercise of constitutional rights. It prohibits: any lawsuit, cause of action, claim, cross-claim, or counterclaim against any other person or entity without merit and primarily because such person or entity has exercised the constitutional declarations are impermissible substitutes for affidavits in this context.” In fact, they are permissible in this instance (A9-10). § 92.525, Florida Statutes, specifically permits the use of declarations in place of affidavits, and Defendants, in advance of the hearing, filed affidavits that identically mirrored their previously filed declarations when Materio raised this as an issue. Plaintiff thus suffered no prejudice through Defendants’ reliance on § 92.525, Florida Statutes. 17 #66799873_v1 Exhibit 3 Page 135 of 258 right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. § 768.295(3). The statute also provides: “It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.” § 768.295(1). To that end, § 768.295(4) provides that a “person or entity sued ... in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section” and “may move the court for an order dismissing the action or granting final judgment in favor of that person” or “file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant’s ... lawsuit has been brought in violation of this section.” § 768.295(4). The court must hear an Anti-SLAPP motion “at the earliest possible time” after a response is filed.7 Id. And the court must award attorneys’ fees and costs to the prevailing party. Id. The Former Commissioner’s defamation suit is a garden-variety, indefensible SLAPP suit. It did not even attempt to masquerade its intent to punish Asnani and Cornerstone for their protected conduct. Its purpose is to silence and intimidate 7 Even though the trial court did grant an Emergency Motion to Continue the hearing date based on the perceived need to take depositions, instead of proceeding with the hearing on the agreed upon date, the court did move to have the matter heard timely. 18 #66799873_v1 Exhibit 3 Page 136 of 258 anyone who would dare speak out against the Former Commissioner and question her gaming the system that she supervised. B. The Trial Court Departed From The Essential Requirements Of Law When It Excluded “Electioneering Communication” From the Protection of Chapter 768’s Anti-SLAPP Provisions The itemized list of the Anti-SLAPP Statute contains various modes of media communication for widely disseminating protected First Amendment speech. Fla. Stat. § 768.295(2)(a). Simply, the common theme amongst all the listed items is that they are means of delivering First-Amendment-protected information to a broad, public audience (i.e. books, movies, plays, news reports, radio broadcasts, musical works…etc.). Inclusion on the list, then, carries two requirements: (1) a mode of broad media communication that (2) conveys First Amendment protected speech. Any other interpretation of the list would gut the purpose of the Anti- SLAPP statute, which is to “protect the right in Florida to exercise the rights of free speech in connection with public issues . . .[,]” and would provide less protection - not more as called for by the courts - to political speech than to other more ordinary forms of speech. Fla. Stat. § 768.295(1). But the list is not exclusive or exhaustive. Indeed, it contains a catch-all phrase referencing “or other similar work.” Consequently, under the plain meaning of the statute, the catch-all phrase should be read to include works that contain the two aforementioned requirements. The mailer fits squarely within these 19 #66799873_v1 Exhibit 3 Page 137 of 258 requirements as it sought to convey political speech to a public audience. See, e.g., Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal. App. 4th 1050, 1068 (2005) (interpreting California’s Anti-SLAPP statute, which served as a model for Florida’s and others around the country, and stating “[t]he fact that “radio stations” are not specifically listed is of no moment . . . . [because the work] is designed and produced to elicit viewpoints from members of the public on issues of public interest which are contemporaneously aired to the public at large. We see no distinction in this and the gathering and dissemination of news by other media organizations which are identified in the exception.”). Similarly, in Gundle, the Second District remanded the trial court’s erroneous rejection of an Anti-SLAPP suit and in so doing necessarily found that an HOA flyer, a “handbill”, fell within Anti-SLAPP’s gambit. 2019 WL 405843, *5. Although the court did not go through an in-depth analysis for why the HOA flyer qualifies for Anti-SLAPP protection, when considered in light of the two prongs mentioned above (mode of mass communication and protected First Amendment speech), it becomes clear the HOA flyer qualifies as a protected medium of dissemination. Here, the mailer deserves the same Anti-SLAPP protection as it, just like the flyer in Gundle that garnered appellate court approval, shares the two common threads that permeate Anti-SLAPP’s itemized list. Holding otherwise would both 20 #66799873_v1 Exhibit 3 Page 138 of 258 eviscerate the purpose of the Anti-SLAPP Statute and create a conflict with the Second District’s precedent. C. The Trial Court Departed From The Essential Requirements Of Law When It Improperly Applied A Test For Statutes Which Are In Derogation Of The Common Law The trial court ruled that the entire Chapter 768 is in derogation of common law that limits a person’s access to the courts. Because of that incorrect analysis, the court stated that the Anti-SLAPP Statute needed to be narrowly construed.8 To support that position the trial court stated: Plaintiff correctly observes that §768.295 must be strictly and narrowly construed “because Chapter 768 is in derogation of the common law and an impediment to the constitutional guarantee of access to the courts…” See Ballard v. Curatolo, 363 So. 2d 864,865 (Fla. 4th DCA 1978). Obviously, as Florida’s anti- SLAPP statute is codified within Chapter 768, it is therefore in derogation of the common law and must be strictly and narrowly construed. (A11) (emphasis added). The trial court’s conclusion is fundamentally flawed and that flawed analysis alone requires the quashing of the Order. The Ballard case cited to and relied on Green v. Broward General Medical Center, 356 So. 2d 877 (Fla. 4th DCA 1978) for that limiting proposition for Chapter 768. What Green turned on, however, was a specific provision of Chapter 768 which is no longer the law. It turned on whether 8 Even a narrow construction of the statute shows that the trial court is in error for not granting the Anti-SLAPP Motion filed by Asnani and Cornerstone. 21 #66799873_v1 Exhibit 3 Page 139 of 258 the jurisdiction of a medical mediation panel terminates with a right to sue in Circuit Court if no hearing is held by the medical mediation panel within 120 days. The Green court said, “Since the medical mediation procedure enacted by Part II, Chapter 768 is in derogation of the common law, and is an impediment to the constitutional guarantee of access to the courts of this state, strict compliance with the statutory provisions of Chapter 768 is required.” Because the plaintiff in Green did not get a hearing within 120 days, he was permitted to file suit in Circuit Court. That limiting part of the statute was later repealed in 1983 and is no longer a limitation on access to the courts. The cases are clearly distinguishable from this matter before the court which is based on a 2017 statute, not the repealed 1983 statute that was the discussion of the Green and Ballard cases. In this case, the Former Commissioner has access to the courts, and it is in fact her illicit use of the courts as an impermissible weapon against free speech that is exactly what this Section of Chapter 768 addresses. Unlike the Ballard or Green cases relied upon by the trial court where access to the courts was limited, in Anti- SLAPP the parties are in court, with a right to an expedited hearing before a Circuit Court Judge. That is the opposite of Ballard and Green’s denial of access to the courts. Consequently, the trial court departed from the essential requirements of law by applying a non-existent limiting provision to the Anti-SLAPP law, and for that reason alone the Order should be quashed. 22 #66799873_v1 Exhibit 3 Page 140 of 258 Furthermore, Florida’s Anti-SLAPP statute is remedial in nature because it provides a statutory remedy for SLAPP defendants subject to lawsuits attacking the exercise of free speech in connection with a public issue.9 And as a remedial statute, even if it is in derogation of the common law, it is not to be strictly construed. See, e.g., Irven v. Dep't of Health & Rehab. Services, 790 So. 2d 403, 406 (Fla. 2001) 9 At the time Florida first passed its Anti-SLAPP Statute, the Legislature expressly described its remedial nature and purpose: (1) “WHEREAS, such lawsuits, called “Strategic Lawsuits Against Public Participation” or “SLAPPs,” are typically dismissed as unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their duties[;]” (2) “WHEREAS, these lawsuits are an abuse of the judicial process and are used to censor, intimidate, or punish citizens, businesses, and organizations for involving themselves in public affairs [;]” (3) “WHEREAS, controlling these lawsuits will make a major contribution to lawsuit reform [;]” (4) “WHEREAS, the threat of financial liability, litigation costs, destruction of one's business, loss of one's home, and other personal losses from groundless lawsuits seriously affects government, commerce, and individual rights by significantly diminishing public participation in government, in public discourse, and in voluntary public service [;]” (5) “WHEREAS, while courts have recognized the harm from such lawsuits and have discouraged them, protection of these fundamental rights has been inadequate [;] and” (6) “WHEREAS, while some citizen communications to government inevitably will be false or unsound or made out of self-interest or in bad faith, it is essential in our democracy that the constitutional rights of citizens to participate fully in the process of government be uniformly, consistently, and comprehensively protected and encouraged” Citizen Participation In Government Act—Slapp Lawsuits—Protection Through Right To Petition Government, 2000 Fla. Sess. Law Serv. Ch. 2000-174 (H.B. 135) (WEST). 23 #66799873_v1 Exhibit 3 Page 141 of 258 (“Respondent's argument that the Act should be strictly construed because it is in derogation of the common law is unavailing. When a statute is both in derogation of the common law and remedial in nature, the rule of strict construction should not be applied so as to frustrate the legislative intent.); Golf Channel v. Jenkins, 752 So. 2d 561, 566 n.4 (Fla. 2000); Klepper v. Breslin, 83 So. 2d 587, 592 (Fla. 1955) ( “[T]he Florida act is in derogation of the common law and because of this ordinarily would be strictly construed, nevertheless we have held that it is remedial in nature and should be accorded a liberal construction consistent with the objective sought to be accomplished.”); Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992) (“we believe it clear that the Whistle–Blower's Act is a remedial statute designed to encourage the elimination of public corruption by protecting public employees who “blow the whistle.” As a remedial act, the statute should be construed liberally in favor of granting access to the remedy.”). D. Chapter 106 Defines Specific Rules For Campaigns and Election Communications The Legislature has crafted strict rules around all forms and manner of electioneering communications, election fund raising, and reporting. These rules are listed in Chapter 106 of Florida Statutes and include restrictions on timing of communications, reporting of campaign activity and fundraising, and penalties for certain violations of the Chapter among other things. It is designed to make for open and fair elections and to regulate election campaigning. 24 #66799873_v1 Exhibit 3 Page 142 of 258 The free speech in question in this case is regulated by Chapter 106 because it falls under the definition of Electioneering Communication. But merely because it falls under that regulatory scheme does not mean that it is therefore automatically excluded from all other protections of law. If that were the case, as the trial court seems to indicate, then Chapter 106 would also provide an exclusive remedy and would prohibit the Former Commissioner’s SLAPP suit by diverting her complaint to an exclusive remedy in Chapter 106. The Former Commissioner and the trial court focused on a specific section of Chapter 106 which catalogues a list of criteria that identify the types of communications that will be regulated by Chapter 106 during election cycles: “Electioneering communication” means communication that is publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail or telephone and that…(a) refers to or depicts a clearly identifiable candidate for office…(b) is made within 30 days before the primary…(c) is targeted to the relevant electorate in the geographic area…” § 106.011(8)(a). The trial court and the Former Commissioner are correct, the free speech here was an electioneering communication. However, the fact that communication is regulated and defined in various other parts of statute does not mean that it is therefore eliminated from SLAPP protection. In fact, “television stations, radio stations, cable television system, satellite systems, newspaper, magazine, direct 25 #66799873_v1 Exhibit 3 Page 143 of 258 mail, and telephones” identified in Chapter 106 are all routinely used as communications methods that are squarely protected from SLAPP suits. E. Trial Court’s Stated Analysis Mandates Absurd Results The trial court correctly states that it must follow the clear language of the law - however it violates its own construction and departs from the essential requirements of the law by adding exclusions to the law that do not exist. The definition of “Free speech in connection with public issues” in § 768.295(2)(a) starts clearly and strongly. It “means any written or oral statement…” And the party abused by attempts to silence its free speech may be “a person or entity…” § 768.295(4). To achieve the trial court’s result of denying free speech protections in this case while applying its stated strict adherence to the language of statute would require a redrafting of the language of Chapter 768 to read, “any written or oral statement other than an electioneering communication”. Likewise, it would require new language stating, “any person or entity other than an electioneering communication organization”. (fictional language added in italics). This is obviously not the case as the Legislature created no such discriminatory limitations. The restrictions in the law come in the form of requiring that it be a matter of public issue and that the mechanism of communication fall within a list of presentation mechanisms routinely used to speak out against government or government officials’ 26 #66799873_v1 Exhibit 3 Page 144 of 258 misconduct. To show the non-exclusive nature of the list, it is followed by a catch all statement at the end of the list “or other similar work” to capture the growing universe of speech. The trial court ignored this catch-all provision entirely. This by itself is a departure from the essential requirements of law. The trial court’s own analysis fails to consider its inherent contradictions. Any radio Electioneering Communication would also be a “radio broadcast” and simultaneously be included and excluded from SLAPP protections under the lower court’s ruling. Likewise, any Electioneering Communication television commercial or YouTube video would simultaneously be an “audiovisual work”. Had the information on the mailer been read word for word over the radio by a non-ECO or broadcast as a video of a non-ECO person’s hand turning over the flyer from front to back it would have fallen under the lower court’s reading of the Anti-SLAPP statute and been protected. Likewise, a TV commercial broadcast 32 days prior to the primary would be protected, but that same commercial broadcast 29 days prior (and accordingly thereby coming under the definition of an Electioneering Communication) would not be protected. In fact, under the lower court’s Order, had this exact same mailer been sent out 32 days prior to the Primary it would have no longer been a defined Electioneering Communication and would have been covered under the court’s Anti-SLAPP analysis. This type of analysis leads to the absurd and should be rejected by the courts, not judicially created and fostered by them. 27 #66799873_v1 Exhibit 3 Page 145 of 258 See Green v. Dep't of Highway Safety & Motor Vehicles, 905 So. 2d 922, 923 (Fla. 1st DCA 2005) (“A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would lead to an absurd or ridiculous result.”); State v. Tullis, 970 So. 2d 912, 913 (Fla. 5th DCA 2007) (“A court should endeavor to construe a statute in a manner which would not lead to absurd results that were obviously not intended by the legislature.”). The list of mediums of communications protected from SLAPP suits includes a “movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.” An election communication can and is routinely distributed through the same channels identified in the Anti-SLAPP provision. Thus, an election mailer is “similar” to the other modes of communication protected under the statute. The mere fact that other forms of communication are defined throughout state and federal law in a variety of contexts and not specifically included in Chapter 768 does not intentionally exclude them from Anti-SLAPP protection and is another area in which the trial court has departed from the essential requirements of the law. F. Second District Court of Appeal Issued Binding Opinion Day After Lower Court Argument - Which Lower Court Failed to Follow The day after argument before the trial court in this matter, the Second District Court of Appeal issued an opinion in Gundle applying Anti-SLAPP protection to individual members of a Home Owner’s Association for a suit brought against them 28 #66799873_v1 Exhibit 3 Page 146 of 258 related to the passing out of handbills to residents questioning the conduct of the developer. In that case, the homeowners sought the protection of Chapter 768 for their protected conduct of passing out handbills/flyers on a matter of public interest in their community. The Second District found that the Anti-SLAPP Statute does apply to the handbill context and quashed the lower court’s narrowing denial of Anti- SLAPP protections. Like Gundle, Asnani is an individual involved in public discussion of a matter in public interest. Like Gundle, Asnani worked with others to spread a free speech message that questioned conduct. Like Gundle, Asnani and Cornerstone are operating in a speech context involving a statutorily-created entity. Like Gundle, Asnani and Cornerstone were due the two-step analysis of Anti- SLAPP and, in this case, a dismissal of claims against them – and the lower court’s failure to perform that analysis is a departure from an essential requirement of law. G. Statutorily Mandated Two-Step Anti-SLAPP Analysis The trial court was faced with two questions related to Anti-SLAPP: (1) is the claim brought primarily because of the exercise of free speech and (2) is the claim without merit. The lower court’s opinion appears to rule in favor of Asnani and Cornerstone on the first prong that the suit is brought because of the exercise of free speech but ignores the requirement of an analysis on the claim’s actual lack of merit. 29 #66799873_v1 Exhibit 3 Page 147 of 258 1. Materio’s Claim Was Brought Primarily Because Of The Exercise Of Free Speech In Connection With A Public Issue In appearing to side with Asnani and Cornerstone on the first prong, the lower court states anti-SLAPP is designed to protect free speech in political campaigns.10 More precisely, the court said: The alleged defamation arises out of a direct-mailed flyer concerning Plaintiff’s 2018 campaign for election to the West Palm Beach City Commission. Therefore, Defendants base their motions on a Florida statute which is designed to protect free speech in, among other circumstances, political campaigns. (A6-7). For further support that the lower court appears to side with Asnani and Cornerstone for the first prong, the court wrote: There is no dispute that the communication about which Plaintiff complains is a single, two-sided flyer which was direct-mailed to people who would potentially vote in the 2018 election for West Palm Beach City Commissioner candidates. (A9). Having made this finding in the first prong of the analysis, the lower court’s next step should have been to address the merits of the Former Commissioner’s claims about whether or not the language on the flyer defamed her; instead, there was no merits finding at all, but instead a passing comment related to the rejection 10 Political campaigns are not actually mentioned by name in the statute but they are certainly matters of public interest and accordingly should be included under a fair reading of the statute even though not specifically named. 30 #66799873_v1 Exhibit 3 Page 148 of 258 of both the “Plaintiff’s and Defendants’ remaining arguments…” (A15-16). The court even went so far beyond the essential requirements of law in a defamation case that it said “What these motions do turn on is the substantive question of whether the subject flyer, regardless of the words it employs, is a type of mechanism of communication afforded protection by the anti-SLAPP statute.” (A11) (italics added). The “words it employs” is the entire crux of the case in a defamation claim. The failure to consider them in the second prong is a wholesale departure from the law. 2. Materio’s Claim is Without Merit Given the uncontested facts before the trial court, the Former Commissioner’s suit is wholly without merit as a matter of law. As such, this Court should remand with instructions that the Former Commissioner’s suit be dismissed. (i) The Statement That “Materio Had a Homestead Exemption for Her West Palm Beach Home and Port St. Lucie Home at the Same Time” is Entirely Correct A defamation claim requires a showing of five elements: (1) publication, (2) falsity, (3) the defendant's knowledge of, or reckless disregard for, the falsity (i.e., actual malice), (4) actual damages, and (5) the false statement must be defamatory. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). Here, the complaint fails under prong 5 because the statements were entirely truthful. In particular, the statements on the front of the mailer of “a homestead 31 #66799873_v1 Exhibit 3 Page 149 of 258 exemption in Port St. Lucie,” and on the back of the mailer of “Materio had a homestead exemption for her West Palm Beach home and Port St. Lucie home at the same time,” are supported by the following documents, among others: (1) a 2003 Trust document for the Materio Family Trust, filed in 2017, St. Lucie County Official Records Book 4047, Pages 913- (2) 2015-2017 tax records for Materio’s Port St. Lucie Property (A45-58); (3) 2015-2017 tax records for Materio’s Palm Beach County property (A64-66); (4) Warranty Deeds for Port St. Lucie County Parcel 3422-526-0022-000/0 for 2010 and 2017, filed in St. Lucie County Official Records, Book 3246, Page 2072-3, Book 3256, Page 787, Book 4047, Page 927 (A68-71). Several of these documents are identified on the mailer itself as providing the support for the statements contained therein. (A42-43) . A review of these documents demonstrate: (1) that in September 2003, Materio, as settlor, created and appointed herself Trustee of the Materio Family Trust (the “Revocable Trust”), a revocable trust for the benefit of her mother, Dolores Silvestri, and listing Materio herself as among the remaindermen to the Revocable Trust (A47-58); (2) that in 2010 Materio, together with her husband, purchased by warranty deed a home in Port St. Lucie, Florida with parcel identification number: 3422-526-0022-000/0 (“Port St. Lucie Property”) (A68-69); (3) that later in 2010 Materio, together with her husband, transferred the Port St. Lucie Property to the Revocable Trust by warranty deed (A70); (4) that the Port St. Lucie Property 32 #66799873_v1 Exhibit 3 Page 150 of 258 remained in the corpus of the Revocable Trust until it was sold in September, 2017 to a third party (A71); (5) that in 2015 and 2016 the Port St. Lucie Property had homestead tax exemptions, listing the Revocable Trust and a Joseph Silvestri, Materio’s father(A60-61); (6) that in 2015 and 2016 a homestead exemption was claimed on Materio’s West Palm Beach residence at 339 Alhambra Place, West Palm Beach, FL 33405, which Materio owned jointly with her husband and listed in her public disclosures. (A64-65). These facts entirely support the homestead references in the mailer. (ii) Materio’s Decision to Establish Revocable Trust Means She is Still the Owner As the Settlor and Trustee of the Revocable Trust, Materio remained the owner of the Trust corpus, which corpus included the Port St. Lucie Property. See The Florida Bar, Consumer Pamphlet: The Revocable Trust in Florida (2016) (“A revocable trust is a document (the “trust agreement”) created by you to manage your assets during your lifetime and distribute the remaining assets after your death . . . . In Florida, the trust assets are not protected from the claims of your creditors. During your lifetime the assets in a revocable trust are treated as owned by you, and subject to the claims of your creditor as if you owned them in your personal name.”; Fla. Nat. Bank of Palm Beach Cty. v. Genova, 460 So. 2d 895, 897 (Fla. 1984) (“the beneficiaries of a revocable trust do not come into possession of any of the trust property until the settlor's death;” See F.S. § 736.0505(1)(a) (“The property of a 33 #66799873_v1 Exhibit 3 Page 151 of 258 revocable trust is subject to the claims of the settlor’s creditors during the settlor’s lifetime to the extent the property would not otherwise be exempt by law if owned directly by the settlor.”). The mere fact that Materio attempted to manage her personal assets and estate planning through the Revocable Trust, a revocable instrument at the whim of the trustee (Materio), does not change the fact that she was the owner of the Port St. Lucie Property in 2015 and 2016 when that property, along with her West Palm Beach property, had homestead tax exemptions. Thus, the homestead-related statements in the mailer are entirely accurate. (iii) Florida Law Only Allows One Homestead The mailer also states that “Florida does not allow one person to have two homestead exemptions.” (A43). This is an accurate summary of the law. See, e.g. Fla. Stat. § 196.031(1) (“A person who, on January 1, has the legal title or beneficial title in equity to real property in this state and who in good faith makes the property his or her permanent residence or the permanent residence of another or others legally or naturally dependent upon him or her, is entitled to an exemption. . .”) (emphasis added); Fla. Admin. Code Ann. r. 12D-7.007 (“The Constitution contemplates that one person may claim only one homestead exemption without regard to the number of residences owned by him and occupied by “another or 34 #66799873_v1 Exhibit 3 Page 152 of 258 others naturally dependent upon” such owner.”) (emphasis added). The mailer thus contained an accurate statement of the law, and nothing more. (iv) The Statement that “Materio Received a $50,000 Federally Funded Grant That Required the Borrower to Live at the Port St. Lucie Home” is Not Defamatory As addressed above, the law in Florida is clear that the settlor of a revocable trust retains legal title in the trust corpus, and is thus deemed the owner of the property contained therein. Id. The statement in the mailer that “Materio received a $50,000 federally funded grant that required the borrower to live at the Port St. Lucie home,” is therefore entirely accurate and is based on a mortgage filed in St. Lucie County Official Records Book 3880, Pages 2407-2411. (A73-77). Materio is a Borrower under the mortgage, having signed the note and mortgage in her individual capacity, and that note and mortgage was obtained as part of a federally funded grant program. Specifically, on June 8, 2016, Materio executed a Note and Mortgage, both individually and as Trustee of the Revocable Trust. The Note and Mortgage memorialized a grant in the amount of $50,000.00 from the City of Port St. Lucie, pursuant to its Housing Assistance Program, to the “Borrowers” under the Note.(A73-77 and 79-80).11 Per the plain terms of the Mortgage, Materio, 11 The grant/loan was made pursuant to 24 CFR Part 570, Community Development Block Grant (CDBG) or Section 420.907, Florida Statutes. (A73). 35 #66799873_v1 Exhibit 3 Page 153 of 258 individually, was deemed a “Mortgagor” thereunder. Id. And per the plain terms of the Note, Materio was deemed a “Borrower” thereunder. (A80). Materio must be the Borrower because, despite her decision to create a revocable trust, only she, as the true owner, can encumber the property and satisfy the requirements for the grant. The Mortgage required that the Borrower “acknowledge that this property must remain Mortgagor’s primary residence until this mortgage is satisfied…”. (A74-75). Materio acknowledged this by signing before a notary and two witnesses. Id. In that Note, as the Borrower for a “Loan in the amount of $50,000”, Materio further agreed to keep the Port St. Lucie home as her “permanent residence”. (A80- 81), acknowledging that “[a]t such time as Borrower moves to another location as a permanent residence, Borrower will be in default, even if all other payments and obligations are current, unless the remaining principle balance due under this Note and the Mortgage is paid in full.” (A80-81). Given Materio’s acceptance of these requirements and her public filing of these documents, she has unequivocally acknowledged (in exchange for consideration and payment) that the Port St. Lucie home is her permanent residence. This acknowledgement proves that the statement in the mailer is correct. H. The Statements are True Even If The Court Applies the Former Commissioner’s Flawed Analysis of Her Revocable Trust Even if the court applies the Former Commissioner’s theory of an ownership transfer in a Revocable Trust, she fails to perfect a homestead exemption in the years 36 #66799873_v1 Exhibit 3 Page 154 of 258 2015 and 2016 and therefore the mailer is accurate and truthful. The homestead tax law triggers based on a calculation date of January 1 of each year. § 196.031(1). Since her mother passed away in December of 2014, she was not entitled to a 2015 tax rebate or for any year thereafter. Since the First Amendment was not created until January 7, 2016, she missed another January 1 cycle and solidified her failure in 2015 and created a new missed deadline in 2016. The Former Commissioner was not entitled to an exemption on her Port St. Lucie property at any time, but certainly not in the years between her mother’s death and her First Amendment unartfully adding her father as a possible beneficiary in an unfiled document. Whether you apply the mailer’s statement to the entire period of home ownership or merely the two year cycle between her mother’s death and the First Amendment to the Revocable Trust, the dates of death and Amendment are uncontested matters of record and totally support the truthful statement in the mailer that she had a homestead exemption on two homes at the same time. Additionally, the fact that Materio filed the original Revocable Trust naming only her deceased mother as beneficiary in 2017, instead of the First Amendment which first appeared to the public in the course of this litigation, is further reason to say it was reasonable for the reader to not be aware of any amendments. By filing the wrong trust 37 #66799873_v1 Exhibit 3 Page 155 of 258 document, she again makes it legally impossible to meet the malice standard required.12 I. As A Matter Of Law Defendants Did Not Act With Actual Malice Because Materio was a public official running for re-election at the time the statements were published, she must prove, through clear and convincing evidence, that Defendants acted with “actual malice,” defined as knowledge that the statement was false or made with reckless disregard of whether it was false or not. See Don King Prod., Inc. v. Walt Disney Co., 40 So. 3d 40, 43 (Fla. 4th DCA 2010). Even assuming the political mailer was false, which it is not as shown above, Materio cannot prevail on the actual malice standard as a matter of law. Indeed, Defendants underwent significant research to shore up the statements made in the mailer, and knew that the fraud identified in the mailer had been reviewed by state law enforcement and that it was their formal written opinion that Materio should be the target of investigation by state and federal authorities. (A812). The law is clear that reliance on reliable sources precludes a finding of actual malice. “The test of actual malice … focuses on the defendant’s state of mind at the time of publication.” Hunt v. Liberty Lobby, 720 F.2d 631, 642 (11th Cir. 1983) 12 There is no record evidence whether this misfiling by Materio was intentional or in error. As Materio had different lawyers from the drafting of the Amendment and the filing of the sale documents, it is certainly possible the filing lawyer was unaware of the Amendment – just as anyone else would have been aside from Materio. 38 #66799873_v1 Exhibit 3 Page 156 of 258 (internal quotation marks omitted); see also New York Times Co. v. Sullivan, 376 U.S. 254, 261, 286 (1964). “The burden of proving ‘actual malice’ requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511 n.30 (1984) (emphasis added); accord Mile Marker, Inc. v. Petersen Publ’g, L.L.C., 811 So. 2d 841, 847 (Fla. 4th DCA 2002) (“Under the actual malice test a public figure plaintiff must establish that the disseminator of the information either knew the alleged defamatory statements were false, or published them with reckless disregard despite awareness of their probable falsity.”). The Supreme Court has also defined actual malice as “a high degree of awareness of probable falsity.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). 1. Defendants Performed Substantial Research Prior to the Publication of the Mailer, And The Research Supported Each Statement Made Prior to publishing the mailer, Defendants relied upon the following documents, all of which were found after public records searches: (1) a 2003 Trust document for the Materio Family Trust, filed in 2017, St. Lucie County Official Records Book 4047, Pages 913-926 (A47-58); (2) 2015-2017 tax records for Materio’s Port St. Lucie Property (A60-62); (3) 2015-2017 tax records for Materio’s 39 #66799873_v1 Exhibit 3 Page 157 of 258 Palm Beach County property (A64-66); (4) Warranty Deeds for Port St. Lucie County Parcel 3422-526-0022-000/0 for 2010 and 2017, filed in St. Lucie County Official Records, Book 3246, Page 2072-3, Book 3256, Page 787, Book 4047, Page 927(A68-71); and (5) 6/8/16 Mortgage, St. Lucie County Official Records Book 3880, Pages 2407-2411 (A73-77; A92). These documents, as set forth above, establish, among other things, that “Materio received a $50,000 federally funded grant that required the low-income borrower live at the Port St. Lucie home,” and that “Materio had a homestead exemption for her West Palm Beach home and Port St. Lucie home at the same time.” (A42-43). Reliance on these public sources shields Defendants from a finding of actual malice. See Dockery v. Florida Democratic Party, 799 So. 2d 291, 296 (Fla. 2d DCA 2001) (“[r]eliance upon a reliable source insulates [the] defendant from a finding of actual malice as a matter of law.”). 2. At the Time the Mailer was Published, Multiple Law Enforcement Agencies had Reviewed Materio With Respect to the Statements Contained Within the Mailer—That Investigation Continues Upon discovering the research in support of the mailer, Asnani informed law enforcement. (A92-93). First, Asnani spoke to the Palm Beach County Sheriff’s Office on March 2, 2018. Id. at ¶ 8. The Sherriff’s Office informed Asnani that based on the materials identified above, there was support for further investigation into the Port St. Lucie property and loan. Id. The Sherriff’s Office also informed 40 #66799873_v1 Exhibit 3 Page 158 of 258 Asnani that the matter would be referred to the anti-corruption unit at the State Attorney’s Office. Id. at ¶¶ 8-9. Shortly after his call with the Sherriff’s Office, Asnani received a call from the public corruption unit of the Palm Beach County State Attorney’s Office. Id. On that call, Asnani informed a public corruption investigator for the State Attorney’s Office that he had undertaken research related to Materio’s finances, and that he had identified certain materials that tended to show that Materio may have violated the law. Id. The State Attorney’s Office agreed that the materials, as shown to the investigator by Asnani, showed that a law may have been broken with respect to the Port St. Lucie property, but instructed Asnani to reach out to the Federal Bureau of Investigation to pursue the matter. Id. Additionally as confirmed by the SAO Memo, (A812) the State Attorney’s Office was jurisdictionally limited as the fraud was in Port St. Lucie, outside their geographic limits. On the advice of the State Attorney’s Office, Asnani reached out to the FBI regarding what he had uncovered in his research materials on Materio’s Port St. Lucie home and borrowing. On that call, the FBI Special Agent asked for a meeting with Asnani to review his findings immediately after the election concluded. Id. Defendants relied on law enforcement’s statements regarding their assessment of the case, and that assessment contributed to the ultimate decision to publish the 41 #66799873_v1 Exhibit 3 Page 159 of 258 mailer. Id. As a matter of law, Asnani could not have acted with actual malice: he did the research and consulted with law enforcement, and law enforcement saw merit to a state and federal criminal investigation. The defamation claims must therefore fail. See, e.g., Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666-7 (1989) (“[A]lthough the concept of ‘reckless disregard’ cannot be fully encompassed in one infallible definition, we have made clear that the defendant must have made the false publication with a ‘high degree of awareness of ... probable falsity,’ or must have ‘entertained serious doubts as to the truth of his publication.’” Asnani had no awareness of falsity, and no doubts as to truth. Id. at ¶ 11. J. The Statements in the Mailer Constituted Non-Actionable Pure Opinions The statements made in the mailer constituted pure opinions, which are not actionable under defamation law due to the protections of the First Amendment to the United States’ Constitution. The statements constituted pure opinion, in part, because the mailer cited to public sources to support the statements made therein. (A42-43) (citing to public records supporting statements contained therein). Citing to source material that the reader is free to verify, and potentially reach a different conclusion, shields the speaker from defamation under Florida law. See Klayman v. City Pages, 650 Fed. Appx. 744, 751 (11th Cir. 2016) (“Where a publisher gives readers sufficient information to weigh for themselves the likelihood of an article's veracity, it reduces the risk that readers will reach unfair (or simply incorrect) 42 #66799873_v1 Exhibit 3 Page 160 of 258 conclusions, even if the publisher itself has.”). Any reader of this publication could have independently verified the source material and reached a different conclusion. While a different conclusion is not warranted here, that could have been up to an individual reader. The mailer is therefore not actionable. Id. K. Because Defamation Fails, Conspiracy to Defame Also Fails Materio tries to state a cause of action for defamation and fails. Her failure ripples through her entire Complaint and is fatal to her conspiracy cause of action as well. The trial court’s failure to dismiss Materio’s defamation claim on Anti-SLAPP grounds is the same failure for the conspiracy count. It cannot stand independently of the substantive count of defamation. Ovadia v. Bloom, 756 So. 2d 137, 140 (Fla. 3d DCA 2000) (“The conspiracy to defame claim cannot stand where, as here, the defamation action fails. There being no defamation, the gist of the defamation conspiracy, there can be no conspiracy claim.”); See Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025, 1027 (Fla. 3d DCA 1981). VI. CONCLUSION The trial court departed from the essential requirements of law and as such this court has certiorari jurisdiction to correct that ruling so that Asnani and Cornerstone will not be subjected to meritless litigation regarding their protected speech. This court’s de novo jurisdiction permits this Court to find that Electioneering Communications are protected by Anti-SLAPP and that this 43 #66799873_v1 Exhibit 3 Page 161 of 258 Electioneering Communication is truthful (or at least non-actionable as defamation). The trial court’s Order should be quashed, the motion to dismiss should be granted, and Materio’s lawsuit should be dismissed with prejudice as to Asnani and Cornerstone and remanded to the lower court for a determination of fees. Respectfully submitted, HOLLAND & KNIGHT LLP Counsel for Petitioners Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani 222 Lakeview Avenue, Suite 1000 West Palm Beach, Florida 33401 T: 561.833.2000 F: 561.650-8399 /s/William N. Shepherd William N. Shepherd, Esq. Florida Bar Number: 88668 [email protected] Seth J. Welner, Esq. Florida Bar Number: 99214 [email protected] Jeff Schacknow Florida Bar Number: 1004628 [email protected] CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 5th day of April, 2019, I electronically filed the foregoing with the Clerk of the Fourth District of Appeal via the Florida Courts E-Filing Portal System and that a true and correct copy has been served via 44 #66799873_v1 Exhibit 3 Page 162 of 258 transmission of Notices of Electronic Filing generated by the ePortal System or by some other authorized manner pursuant to the following Service List: /s/ William N. Shepherd William N. Shepherd, Esq. SERVICE LIST Joseph W. Janssen, III, Esq. Leonard Feuer, Esq. John M. Siracusa, Esq. LEONARD FEUER, P.A. Mark G. Keegan, Esq. 240 10th Street JANSSEN, SIRACUSA & KEEGAN PLLC West Palm Beach, Florida 33401 120 South Olive Avenue, Suite 504 T: 561.659.1360 West Palm Beach, Florida 33401 Email: [email protected] T: 561.420.0583 Counsel for WPB Residents for F: 561.420.0576 Integrity in Government, Inc. Email: [email protected] Email: [email protected] Email: [email protected] Counsel for Respondent Honorable Jeffrey Gillen Palm Beach County Courthouse Room 9.1216 205 North Dixie Highway West Palm Beach, Florida 33401 Via U.S. Mail CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Petition for Writ of Certiorari complies with the font requirements set forth in Rule 9.100(1) of the Florida Rules of Appellate Procedure, as it has been prepared in Times New Roman 14-point font. /s/ William N. Shepherd William N. Shepherd 45 #66799873_v1 Filing # 90092228 E-Filed 05/24/2019 12:58:24 PM Exhibit 3 Page 163 of 258 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CONSOLIDATED CASE NOS.: 4D19-0967 and 4D19-0997 L.T. CASE NO.: 502018CA012422XXXXMB WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC., Petitioner, Case No. 4D19-0967 vs. SHARON “SHANON” MATERIO, Respondent. ______/ CORNERSTONE SOLUTIONS FLORIDA, LLC and PRADEEP ASNANI a/k/a RICK ASNANI, Petitioners, Case No. 4D19-0997 vs. SHARON “SHANON” MATERIO, Respondent. ______/ RESPONSE OF SHARON “SHANON” MATERIO TO PETITIONS FOR WRITS OF CERTIORARI The Respondent, Sharon “Shanon” Materio, in response to this Court’s April 22, 2019 show cause order in case 4D19-0967, this Court’s April 23, 2019 order consolidating cases, and this Court’s April 23, 2019 show cause order in case 4D19- Exhibit 3 Page 164 of 258 0997, requests this Court deny Petitioners’, WPB Residents for Integrity in Government, Inc. (“WPB”), Cornerstone Solutions Florida, LLC (“Cornerstone”) and Pradeep Asnani a/k/a Rick Asnani (“Asnani”) (collectively the “Petitioners”), petitions for writs of certiorari. THE REQUIREMENTS FOR CERTIORARI RELIEF In the circuit court Petitioners launched an unprecedented blitzkrieg on Respondent’s right to access the Florida courts for redress of her injuries as guaranteed by the Florida Constitution and Respondent’s right to a jury trial on her common law claims as guaranteed by both the Florida and United States Constitutions. Their efforts below to jettison Respondent’s meritorious claims having failed, Petitioners now initiate a second improper attack on Respondent’s constitutional rights under the guise of certiorari even though Petitioners lack any legitimate basis to obtain the relief they are seeking in this Court. Article I, section 21 of the Florida Constitution instructs “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Art. I, § 21, Fla. Const. Article I, section 22 of the Florida Constitution guarantees Respondent’s right to have her common law defamation and conspiracy to defame claims tried by a jury and commands “The right of trial by jury shall be secure to all and remain inviolate. The qualifications Exhibit 3 Page 165 of 258 and the number of jurors, not fewer than six, shall be fixed by law.” Art. I, § 22, Fla. Const. The Seventh Amendment to the United States Constitution guarantees jury trials for “suits at common law” such as Respondent’s common law defamation and conspiracy to defame claims. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 656–57 (1935) (“The right of trial by jury thus preserved is the right which existed under the English common law when the amendment was adopted.”). Petitioners bear a heavy burden in seeking certiorari relief. Though “[a] party can challenge an unappealable order by filing a petition for writ of certiorari in the appellate court,” State v. Smith, 951 So. 2d 954, 956 (Fla. 1st DCA 2007), certiorari relief is an extraordinary remedy that “should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000) (quoting Martin- Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987)). For this reason, “[c]ertiorari is appropriate only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Futch v. Florida Dept. of Highway Safety & Motor Vehicles, 189 So. 3d 131, 132 (Fla. 2016) (internal quotation omitted). The Florida Supreme Court has cautioned that “it would be counterproductive for [Petitioners] to have a full right to interlocutory appeal from all pretrial orders because this would mean Exhibit 3 Page 166 of 258 the district court of appeal would have to entertain the appeal on its merits which would often result in unnecessary delay.” State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988). “To be entitled to certiorari, Petitioners must establish three elements: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Nucci v. Target Corp., 162 So. 3d 146, 151 (Fla. 4th DCA 2015) (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)). “The latter two elements- which are often collectively referred to as ‘irreparable harm’ - are jurisdictional and must be considered first.” Fla. Fish & Wildlife Conservation Com’n v. Jeffrey, 178 So. 3d 460, 464 (Fla. 1st DCA 2015), review denied sub nom. Florida Fish & Wildlife Conservation v. Jeffrey, SC15-2351, 2016 WL 2347371 (Fla. 2016). Where this jurisdictional hurdle remains unsatisfied, the petition should be dismissed. Charles v. State, 193 So. 3d 31 (Fla. 3d DCA 2016). “The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010). Rather, “[c]ertiorari relief is reserved for serious legal errors.” Lake v. State, 193 So. 3d 932 (Fla. 4th DCA 2016)(emphasis added). Importantly, “a court’s misapplication Exhibit 3 Page 167 of 258 of the correct law or ‘erroneous interpretation of [a] law’ does not rise to the necessary level.” State v. Veilleux, 859 So. 2d 1224, 1228 (Fla. 2d DCA 2003) (Emphasis added). Section 768.295 of the Florida Statutes does not provide an automatic right of interlocutory appeal when a SLAPP motion to dismiss or for summary judgment is denied and such an order is not identified in Florida Rule of Appellate Procedure 9.130 as immediately appealable. Petitioners ignore the binding Supreme Court decisions which cut against them and instead seek an unprecedented expansion of a district court’s power to review non-final orders that would make the extraordinary writ of certiorari anything but extraordinary and render meaningless Florida Rule of Appellate Procedure 9.130(a) and the opinions of the Florida Supreme Court limiting the scope of certiorari. INTRODUCTION This novel case is one of first impression in the Florida courts, which itself precludes certiorari since there are no “essential requirements of law” for the circuit court to depart from, involving the circuit court’s application of Florida’s SLAPP law located at section 768.295 of the Florida Statutes to a paid “Electioneering Communication”, a term the Legislature intentionally excluded from SLAPP’s definition section when it substantially rewrote the SLAPP statute in 2015. Despite Exhibit 3 Page 168 of 258 their continued efforts to fit a square “Electioneering Communication” peg into a round “SLAPP” hole, Petitioners’ lobbying efforts are better directed to the Legislature because neither this Court nor Petitioners can rewrite the SLAPP statute to include “Electioneering Communication”, an omitted term defined and governed by a different statutory scheme the Legislature placed over 650 sections away from SLAPP in section 106.011 of the Florida Statutes. The Florida Bar v. Neiman, 816 So. 2d 587, 599 (Fla. 2002) (“if it looks like a duck, and walks, talks, and acts like a duck, one can usually safely assume it is a duck.”). Contrary to Petitioners’ claims this case is not “an attack to silence political speech” but is instead a lawful action brought by Respondent against Petitioners, an experienced group of professional political operatives1, to obtain relief for her injuries in the Florida courts and to have a jury decide her claims. Respondent brought claims for common law defamation and conspiracy to defame arising out of a targeted political assassination orchestrated by Petitioners to improperly influence the 2018 West Palm Beach City Commission election and ensure Respondent was not reelected. Unlike in a mystery novel where an assassin lurks in a dark alley, the “hit men” who “killed” Respondent’s re-election and forever tarnished her good 1 (“West Palm consultant Asnani’s political committee fined for elections violations”) https://www.palmbeachpost.com/article/20190522/NEWS/190528866 (Last accessed May 23, 2019 at 12:03 p.m.) Exhibit 3 Page 169 of 258 reputation were thousands of two-sided color “Electioneering Communications” Petitioners mailed to the residents of West Palm Beach, Florida falsely stating as fact that Respondent had committed homestead fraud, a serious Florida crime, and had stolen $50,000 in federal grant money meant for low income Port St. Lucie residents, a serious federal crime. (Electioneering Communication, Asnani App. 196-198). Neither statement of fact published by Petitioners in the “Electioneering Communication” is true and neither statement is protected by the First Amendment since making a false statement of fact that someone is a criminal is not protected speech. Schenck v. United States, 249 U.S. 47, 52 (1919) (“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”). The petitions, which ask this Court to impermissibly expand the scope of certiorari review and to eviscerate any limitations on the use of this common law writ which has always been narrowly applied in Florida courts, raise an improper and unripe challenge to a detailed, well-reasoned eleven-page order from the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida entered March 6, 2019 denying WPB’s SLAPP motion to dismiss and for summary Exhibit 3 Page 170 of 258 judgment filed November 15, 2018 and Asnani’s SLAPP motion to dismiss filed November 15, 2018. (Order, WPB. App 4-15). STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY Respondent initiated the circuit court action on October 1, 2018 with the filing of a five-count complaint against Petitioners for defamation and conspiracy to defame arising from Petitioners’ mailing of a paid “Electioneering Communication”, a term explicitly defined by the Legislature at section 106.011(8)(a) of the Florida Statutes, that contained a number of factual assertions about Respondent and her claimed criminal conduct that are false. (Complaint, Asnani App. 17-24). Respondent has been a resident of West Palm Beach, Florida since 1989 and has been known as an “activist” in local politics, particularly West Palm Beach. (Materio Aff., Asnani App. 280-287). Respondent personally knows Petitioner, Pradeep Asnani, a political operative who runs a for-profit campaign operation, and his employee, William Newgent. Mr. Asnani owns Cornerstone Solutions Florida, LLC (“Cornerstone”), a marketing and political lobbying firm. In 2013, Respondent ran for and won a seat on the West Palm Beach City Commission and occupied the seat until March 2018 when she was defeated by a challenger who had recently moved to West Palm Beach. A major issue in the 2018 campaign was the development of the Okeechobee Corridor which Respondent Exhibit 3 Page 171 of 258 opposed due to concerns over traffic congestion, safety and quality of life for the residents of West Palm Beach. Respondent’s was one of the three City Commission votes that ultimately defeated the proposal. Soon after the Okeechobee Corridor proposal was defeated Respondent started her next re-election campaign for the City Commission election to be held in March 2018. Petitioners’ handpicked challenger to Respondent was a political neophyte who despite having no political experience was noticeably supported by various wealthy individuals who would profit from the commercial development of the Okeechobee Corridor and therefore were committed to ensuring Respondent was not re-elected. In addition to running the campaign of Respondent’s political opponent, Mr. Asnani, through Cornerstone, created WPB Residents for Integrity in Government, Inc. (the “PAC”), a political action committee, headed by Mr. Newgent his agent and employee. It is common knowledge, particularly among those involved in politics in Palm Beach County, that Respondent’s father, Joseph Silvestri had been convicted of a significant federal crime and by 2005 had been released from prison. When Mr. Silvestri was incarcerated Respondent and her husband retained legal counsel to establish a family Trust for the benefit of Respondent’s mother, Dolores Silvestri, which trust Respondent jointly managed with her mother. The Trust maintained Exhibit 3 Page 172 of 258 secure and stable housing for Respondent’s mother as she moved to Monroe County for a period and subsequently purchased the home in St. Lucie County where both Respondent’s mother and father resided. Dolores Silvestri, through the Trust, owned the Port St. Lucie home until her death. As the legal owner of the home, granted to her through the Trust, Dolores Silvestri applied for and received the legal homestead exemption. After Dolores Silvestri passed away in 2014 the Trust granted Joseph Silvestri ownership of the home until his death. In turn, Mr. Silvestri applied for and was legally granted a homestead exemption on the property until his death in 2017. When Respondent’s parents were alive, they were also eligible for a home improvement loan program administered by the city of Port St. Lucie. Although the maximum home improvement amount per homeowner was $50,000.00 Mr. Silvestri only applied and received approval for approximately $26,000.00 in 2016 for improvements such as roof repair, cabinets, and bathroom upgrades. Since the home was held in the Trust, as a condition of the loan approval the city of Port St. Lucie required that Respondent, as Trustee, sign a mortgage note for the maximum amount under the loan program, $50,000.00. Shortly after Mr. Silvestri’s death in April 2017 the property was sold in September 2017. Because Mr. Silvestri passed away so Exhibit 3 Page 173 of 258 soon after he received the grant, the funds allocated for home improvement were paid back to the city of Port St. Lucie, the Trust mortgage note satisfied and closed. Even though Respondent never had a double homestead and never obtained any federal grant money intended for low income Port St. Lucie residents, Petitioners produced and mailed an “Electioneering Communication” to the residents of West Palm Beach falsely accusing Respondent of committing two serious crimes: First, Petitioners stated “Materio had a homestead exemption for her West Palm Beach home and her Port St. Lucie home at the same time,” that Respondent had “a homestead exemption in Port St. Lucie” and that Respondent had “another homestead exemption in West Palm Beach.” Florida Statute 196.131(2) instructs that “any person who knowingly and willfully gives false information for the purpose of claiming homestead exemption is guilty of a misdemeanor of the first degree, punishable by a term of imprisonment not exceeding 1 year or a fine not exceeding $5,000.00 or both.” Homestead fraud is a serious crime in Florida carrying with it significant consequences; by making the factual claim that Respondent committed homestead fraud Petitioners were stating as fact that Respondent is a criminal. Petitioners’ claim is false, according to the only body authorized to determine homestead exemptions on real property located within St. Exhibit 3 Page 174 of 258 Lucie County, Florida and to opine on their validity: the St. Lucie County, Florida Property Appraiser. The deposition of Susan Rowe of the St. Lucie County Property Appraiser’s Office (“Property Appraiser”) (Rowe Dep., Asnani App. 208-227) was taken January 23, 2019. Upon examination by Respondent’s counsel the Property Appraiser testified that the following individuals, and only the following individuals none of whom are Respondent, had a homestead exemption on the Port St. Lucie property: 2012: Dolores Silvestri (Respondent’s now-deceased Mother) (Rowe Dep. p. 11, l. 18-22; p. 12, l. 1-5); 2013: Dolores Silvestri (Rowe Dep. p. 13, l. 10-18); 2014: Dolores Silvestri (Rowe Dep. p. 14, l. 2-8); 2015: Joseph Silvestri (Respondent’s now-deceased Father) (Rowe Dep. p. 15, l. 6-13); 2016: Joseph Silvestri (Rowe Dep. p. 17, l. 16-20); 2017: Joseph Silvestri (Rowe Dep. p. 18, l. 8-16); and 2018: Dominique Brower (Rowe Dep. p. 18, l. 21-25; p. 19 l. 1-5). By the St. Lucie County Property Appraiser’s own admission, Respondent never claimed a homestead exemption on the Port St. Lucie property: Exhibit 3 Page 175 of 258 Mr. Keegan: According to the records you have and the ones you looked at before coming here today, do you have any record that Sharon Shanon Materio ever obtained a homestead exemption on this property? Ms. Rowe: No record was found. (Rowe Dep., Asnani App. 208-227 at p. 19, l. 17-21) (Emphasis added). As the absolute and only authority on homestead exemptions on real property within St. Lucie County pursuant to Article 7, section 4 of the Florida Constitution and section 193.155 of the Florida Statutes, the Property Appraiser’s testimony unequivocally establishes that Respondent never applied for or claimed a homestead exemption on the Port St. Lucie property. Petitioners’ factual statement that “Materio had a homestead exemption for her West Palm Beach home and her Port St. Lucie home at the same time” is false. Petitioners’ factual statement that Respondent had “a homestead exemption in Port St. Lucie” and “another homestead exemption in West Palm Beach” is also false. Second, in the paid Electioneering Communication Petitioners published statements of fact that “Materio received a $50,000.00 federally funded grant that required the borrower live at the Port St. Lucie home” and that she received “$50,000.00 in federal grant funding meant for Port St. Lucie residents.” Both of Petitioners’ statements of fact are false and Petitioners could have easily discovered they were false. Like Florida homestead fraud, stealing federal government property Exhibit 3 Page 176 of 258 is a serious crime with serious consequences. See 18 U.S.C. § 641 (“Public money, property or records”), which provides for a prison term of up to 10 years: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States …Shall be fined under this title or imprisoned not more than ten years, or both. 18 U.S.C. § 641. By making the factual statement that Respondent stole federal government money from a Port St. Lucie low-income grant program the Petitioners were making a statement of fact that Respondent is a criminal. The deposition transcript of Carmen Capezzuto, Port St. Lucie’s director of neighborhood services (Capezzuto Dep.) is found at Asnani App. 228-258. In a direct rebuttal to Petitioners’ factual statement that Respondent is a criminal, Mr. Capezzuto testified that (1) there is no federal funding component to Port St. Lucie’s low-income housing rehabilitation program which is funded entirely with State of Florida money, (Capezzuto Dep. p. 17, l. 7-14) and (2) Respondent did not receive any money let alone the $50,000.00 the Petitioners claim she received: Mr. Keegan: Did the City ever make a payment to my client Ms. Sharon “Shanon” Materio? Mr. Capezzuto: No, sir. Mr. Keegan: Did they [City of Port St. Lucie] make a payment of $50,000.00 to her? Exhibit 3 Page 177 of 258 Mr. Capezzuto: No, sir. (Capezzuto Dep. p. 17, l. 18-22). Not only did Respondent not receive any money from Port St. Lucie, she never applied for any money and the only applicant for the Port St. Lucie’s low-income housing rehabilitation program was Respondent’s now- deceased father, Joseph Silvestri: Mr. Keegan: Were there any other applicants listed on there, on the application [for Port St. Lucie’s low-income housing rehabilitation program] other than Mr. Silvestri? Mr. Capezzuto: No, sir. Mr. Keegan: Was Ms. Sharon Materio, “Shanon” Materio listed on the application? Mr. Capezzuto: She was not listed on this application. (Capezzuto Dep. p. 12, l. 10-25 p. 13, l. 1-12). Port St. Lucie’s testimony unequivocally establishes that Respondent never obtained or even applied for any federal money meant for low income Port St. Lucie residents. Petitioners’ statement of fact that “Materio received a $50,000.00 federally funded grant that required the borrower live at the Port St. Lucie home” is false. Petitioners statement of fact that Respondent received “$50,000.00 in federal grant funding meant for Port St. Lucie residents” is also false. On November 15, 2018 Petitioners filed their respective SLAPP motions in the circuit court and filed motions seeking an expedited hearing on their SLAPP Exhibit 3 Page 178 of 258 motions. The circuit court followed the SLAPP statute, set Respondent’s response date to the SLAPP motions, allowed Respondent limited discovery of Port St. Lucie and St. Lucie County over Petitioners’ objection2, and set oral argument on the SLAPP motions for January 31, 2019 where it heard over two hours of argument, most of it from Petitioners’ counsel, and thoughtfully considered the issues present in this case of first impression. The circuit court entered the Order denying Petitioners’ SLAPP motions on March 6, 2019. According to the Order “the Court 2 SLAPP’s “expedited” procedural mechanism is not only suspect from an access to courts and right to a jury trial perspective, but also runs afoul of separation of powers by forcing a trial judge to disregard Florida summary judgment law and waste precious judicial resources by considering summary judgment at the beginning of a case without a crystalized record. Branch-McKenzie v. Broward County Sch. Bd., 254 So. 3d 1007, 1012 (Fla. 4th DCA 2018) (summary judgment “should not be rendered in such proceedings unless the facts are so crystallized that nothing remains but questions of law.”); Vandyk v. Southside Gun, Inc., 638 So. 2d 138, 140 (Fla. 1st DCA 1994) The rule authorizing the summary final disposition of cases by judgment or decree does not contemplate that the motion will be granted in those cases where … a party is unable on short notice to interrogate witnesses and procure affidavits or depositions in opposition to the motion asserted by his opponent. Public policy requires that our courts be ever vigilant in making summary disposition of causes lest the application of the rule result in eroding or destroying the fundamental right of litigants under our system of jurisprudence to have the issues made by the pleadings tried by a jury of fellow citizens. The importance of preserving the jury system, and the concomitant right of a litigant to a jury trial on the merits of his cause, should be zealously protected. Exhibit 3 Page 179 of 258 read the parties’ submissions prior to the hearing, listened attentively to the lawyers’ arguments, read the transcript, read the parties’ proposed orders and did its own limited legal research.” Order, 2. The circuit court analyzed the history of Florida’s SLAPP statute and held it should be strictly and narrowly construed as a statute in derogation of common law, like every other statute in Chapter 768. Green v. Broward Gen. Med. Ctr., 356 So. 2d 877, 877 (Fla. 4th DCA 1978) (“[Because] Chapter 768 is in derogation of the common law, and is an impediment to the constitutional guarantee of access to the courts of this state, strict compliance with the statutory provisions of Chapter 768 is required.”). The circuit court analyzed the list of communication types or mechanisms for which SLAPP provides protection and correctly held that the Legislature’s exclusion of the defined term “Electioneering Communication” from the list in section 768.295 is intentional under the canon of construction expressio unius est exclusio alterius, where our Supreme Court held the Legislature purposefully excluded items not included in a list. Schoeff v. R.J. Reynolds Tobacco Company, 232 So. 3d 294 (Fla. 2017); Headley v. City of Miami, 215 So. 3d 1 (Fla. 2017) (this canon is “legislative direction as to how a thing shall be done [and] is, in effect, a prohibition against it being done any other way.”). Exhibit 3 Page 180 of 258 The circuit court rejected Petitioners’ suggestion that all communications emanating from an “Electioneering Communications Organization” under section 106.011(9) are entitled to SLAPP protection because if the Legislature intended to bring all communications from an “Electioneering Communications Organization” under SLAPP’s protections it could have easily done so by adding the defined term “Electioneering Communications” to section 768.295’s definitional section. However, “the Legislature did not do so and it is impermissible for this Court to read or apply the provision as if the language were there.” Order, 9. The circuit court cited to Rebich v. Burdine's & Liberty Mut. Ins. Co., 417 So. 2d 284, 285 (Fla. 1st DCA 1982), instructing: Usually, the courts in construing a statute may not insert words or phrases in that statute or supply an omission that to all appearances was not in the minds of the legislators when the law was enacted. Armstrong v. Edgewater, 157 So.2d 422 (Fla.1963). When there is doubt as to the legislative intent, the doubt should be resolved against the power of the court to supply missing words. In Re: Estate of Jeffcott, 186 So.2d 80 (Fla. 2d DCA 1966). Id. The circuit court also relied on Florida Dept. of Revenue v. Florida Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001) where the Supreme Court reminded: Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. A court's function is to interpret statutes as they are written and give effect to each word in the statute. Exhibit 3 Page 181 of 258 The circuit court adopted the reasoning from the five-judge dissenting opinion in Beckford v. Drogan, 216 So. 3d 1 (Fla. 4th DCA 2017) saying: Inserting missing language into section 742.045 by judicial interpretation, or ignoring the words “under this chapter,” is not akin in this case to correcting a mere drafting or clerical error; rather, it changes the entire meaning of the statute to allow fee awards in circumstances not authorized therein. This court should not effectively include verbiage where such a revision “would substantively change the entire meaning of the statute in a manner contrary to its plain meaning.” Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001). “Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. A court's function is to interpret statutes as they are written and give effect to each word in the statute.” Id. (footnote omitted). The circuit court properly rejected Petitioners’ reliance on irrelevant legislative history, irrelevant statutes and decisions from other states with different SLAPP laws, different rules of procedure and different evidentiary standards, and judicial doctrines concerning construction of statutes which are not clear and unambiguous because Florida courts do not consider legislative history when the text of a statute is clear. As stated by the circuit court, “There is no ambiguity in the anti-SLAPP statute resulting from the Legislature’s having omitted ‘electioneering communication’ from the list.” Order, 10. Finally, the circuit court rejected Petitioners’ claims that Respondent failed to state a claim for defamation or conspiracy to defame, found the remainder of Exhibit 3 Page 182 of 258 Petitioners’ arguments either irrelevant or unpersuasive, and denied Petitioners’ SLAPP motions. Because Petitioners’ SLAPP motions failed Respondent was awarded her reasonable costs and attorneys’ fees pursuant to section 768.295 with the amounts remaining open for determination by the circuit court. APPLICABLE LAW Common Law Defamation “A common law claim for defamation requires the unprivileged publication (to a third party) of a false and defamatory statement concerning another, with fault amounting to at least negligence on behalf of the publisher, with damage ensuing.” Don King Productions, Inc. v. Walt Disney Co., 40 So. 3d 40, 43 (Fla. 4th DCA 2010). A public figure bringing a defamation action must prove more than mere negligence on the part of the publisher; she must prove that the publisher acted with actual malice. Id., quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In New York Times, the Supreme Court defined actual malice as knowledge that the statement was false or reckless disregard of whether it was false or not. 376 U.S. at 279–80, 84 S.Ct. 710. The Court further clarified this definition in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) [R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have Exhibit 3 Page 183 of 258 investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. Id. Recklessness may be found where “there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. at 732, 88 S.Ct. 1323. Under these circumstances, a publisher's profession that he published the defamatory statements in good faith is generally insufficient to obtain a summary judgment. Id.; Don King Productions, Inc. v. Walt Disney Co., 40 So. 3d 40, 43 (Fla. 4th DCA 2010) (Emphasis added). Ill will or motive may be combined with other evidence to show actual malice. Id. at 44. (Citing Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 668 (1989). Respondent may prove malice in the form of cumulative evidence, which is often the only way to prove it in some cases. Id. As a Statute in Derogation of the Common Law, SLAPP is Strictly and Narrowly Construed Over forty years ago the Fourth District held that “because Chapter 768 is in derogation of the common law and an impediment to the constitutional guarantee of access to the courts strict compliance with the statutory provisions is required.” Ballard v. Curatolo, 363 So. 2d 864, 865 (Fla. 4th DCA 1978). Florida’s SLAPP statute, codified within Chapter 768 at section 768.295, is therefore in derogation of the common law and must be strictly construed. Serrill v. Hilderbrand, 382 So. 2d Exhibit 3 Page 184 of 258 316, 317–18 (Fla. 2d DCA 1979) (“The requirements of Chapter 768 must be strictly complied with, since the statute “is in derogation of the common law, and is an impediment to the constitutional guarantee of access to the courts.”); Nagy v. Florida Birth-Related Neurological Injury Comp. Ass'n, 813 So. 2d 155, 159–60 (Fla. 4th DCA 2002) (“statutes which are in derogation of the common law be strictly construed and narrowly applied… this court is guided by the plain language of its statutes and the Legislature's expressed intent.”). SLAPP Florida’s SLAPP law, located at section 768.295 of the Florida Statutes, provides in pertinent part: 768.295. Strategic Lawsuits Against Public Participation (SLAPP) prohibited (2) As used in this section, the phrase or term: (a) “Free speech in connection with public issues” means any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work. *** (3) A person or governmental entity in this state may not file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free Exhibit 3 Page 185 of 258 speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. (4) A person or entity sued by a governmental entity or another person in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A person or entity may move the court for an order dismissing the action or granting final judgment in favor of that person or entity. The person or entity may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant's or governmental entity's lawsuit has been brought in violation of this section. The claimant or governmental entity shall thereafter file a response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the motion, which shall be held at the earliest possible time after the filing of the claimant's or governmental entity's response. The court may award, subject to the limitations in s. 768.28, the party sued by a governmental entity actual damages arising from a governmental entity's violation of this section. The court shall award the prevailing party reasonable attorney fees and costs incurred in connection with a claim that an action was filed in violation of this section. § 768.295, Fla. Stat. Motion to Dismiss Standard A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues. The Fla. Bar. v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006). The trial court is confined to the facts alleged in the four corners of the complaint. Chodorow v. Porto Vita, Ltd., 954 So. 2d 1240, 1241 (Fla. 3d DCA Exhibit 3 Page 186 of 258 2007). “For the purposes of a motion to dismiss…, allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.” Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983); Wausau Ins. Co. v. Haynes, 683 So. 2d 1123 (Fla. 4th DCA 1996) (test for motion to dismiss for failure to state cause of action is whether pleader could prove any set of facts whatever in support of claim); Hillman Construction Corp. v. Wainer, 636 So. 2d 576, 578 (Fla. 4th DCA 1994); Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981) (“A motion to dismiss should not be granted if the pleader sets forth facts in his complaint upon which relief can be granted on any theory.”) A motion to dismiss for failure to state a cause of action may be granted only by looking exclusively at the pleading itself, without reference to any defensive pleadings or evidence in the case. Wausau Ins. Co., 683 So. 2d at 1125. Summary Judgment Standard Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The moving party must conclusively refute the factual bases for Respondent’s claims or establish that they are legally insufficient. Id. In order for a party to prevail under summary judgment, he or she must satisfy Exhibit 3 Page 187 of 258 two steps: “[t]he judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30 (Fla. 1977); Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA 2006). “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.” Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011) (emphasis added) (citations omitted) (quoting Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008)). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d DCA 2015). Statutory Construction The purpose of statutory construction is to effectuate the Legislature's intent because “legislative intent is the polestar that guides a court's statutory construction analysis.” State v. J.M., 824 So. 2d 105, 109 (Fla. 2002); In re Ginsberg's Estate, 50 So. 2d 539, 542 (Fla. 1951) (“It is a fundamental rule in statutory construction Exhibit 3 Page 188 of 258 that the intention of the Legislature in the enactment of a statute should be ascertained and effectuated.”); Getzen v. Sumter Cty., 89 Fla. 45, 103 So. 104, 107 (1925) (“The intent of organic or statutory provisions is the essence of the law.”); State v. Patterson, 67 Fla. 499, 65 So. 659, 660 (1914) (“[L]egislative intent ... is the essence and vital force of the law.”); State v. Atlantic Coast Line R.R. Co., 56 Fla. 617, 47 So. 969, 984 (1908) (“In construing and applying a duly enacted statute, the valid legislative intent is the guiding star.”). In order to “discern legislative intent, [courts] loo[k] first to the plain and obvious meaning of the statute's text.” Smith v. State, 204 So. 3d 18, 21 (Fla. 2016) (quoting W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So. 2d 1, 9 (Fla. 2012)). If the statute is “clear and unambiguous” a court does not look beyond the plain language or employ the rules of construction to determine legislative intent—it simply applies the law. Gaulden v. State, 195 So. 3d 1123, 1125 (Fla. 2016) (quoting Borden v. E.- Eur. Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)). ARGUMENT Certiorori Review is Unavailable Because Continuation of Litigation and any Ensuing Costs, Time and Effort in Defending Such Litigation is not Irreparable Harm Certiorari should be denied, and the petitions dismissed because Petitioners have not established irreparable harm that cannot be corrected on appeal after final Exhibit 3 Page 189 of 258 judgment. As stated by the Florida Supreme Court, “before certiorari can be used to review non-final orders the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So. 3d 344, 351 (Fla. 2012); AVCO Corp. v. Neff, 30 So. 3d 597, 604 (Fla. 1st DCA 2010) (denying certiorari review of trial court's ruling on affirmative defense of statute of repose and statute of limitations because such erroneous rulings “can be corrected on appeal from a final order.”). “Only after irreparable harm has been established can an appellate court then review whether the petitioner has also shown a departure from the essential requirements of law.” Rodriguez v. Miami–Dade Cnty., 117 So. 3d 400, 405 (Fla. 2013) (citing Williams v. Oken, 62 So. 3d 1129, 1132–33 (Fla. 2011)). Petitioners, who will have the opportunity to assert their First Amendment defenses at trial, fail to establish that the circuit court’s order denying the motions to dismiss and for summary judgment cannot be remedied on appeal of the eventual final judgment and the petitions fail “to clearly reflect how the potential ‘harm is incurable’ by a final appeal.” Agency for Health Care Admin. v. S. Broward Hosp. Dist., 206 So. 3d 826, 828 (Fla. 1st DCA 2016) (Emphasis added). Exhibit 3 Page 190 of 258 When Petitioners complaints are peeled back to their core they are revealed to be nothing more than gripes about the continued expense and delay associated with the defense of Respondent’s lawsuit through its eventual resolution before a jury which will decide whether the Petitioners defamed and conspired to defame Respondent, none of which is “irreparable harm” according to the Florida Supreme Court’s binding opinion in Rodriguez v. Miami-Dade County, 117 So. 3d 400, 405 (Fla. 2013). we reiterate that the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm. Thus, the use of certiorari review is improper in such an instance. Id. (Emphasis added). Petitioners gloss over the undisputed fact that it was they, not Respondent, who invoked SLAPP and sought to jettison Respondent’s claims and in turn trample her constitutional rights to a jury trial and to have her grievances heard in Florida courts, all in an “expedited” manner that forced Respondent’s attorneys, at the beginning of her case, to incur over 240 hours of attorney time to date in the circuit court and over 78 hours (and counting) of attorney time in this appeal. Petitioners attempt to satisfy the difficult “irreparable harm” requirement by complaining about the amount of attorneys’ fees Respondent is seeking in the circuit court and that “A person who is denied relief under Florida’s Anti-SLAPP Act has no other remedy, save an extraordinary writ, to review the decision.” Asnani Pet. 5. Exhibit 3 Page 191 of 258 Such claims defy logic because Petitioners will have the opportunity for a full appeal and a review of the circuit court’s Order after rendition of final judgment. Even though Rodriguez is the legal standard and requires this Court to reject Petitioners’ flimsy arguments that continuation of litigation and and any ensuing costs, time and effort in defending such litigation constitute irreparable harm, a position soundly rejected by the Supreme Court, Petitioners did not bring Rodriguez to either the Court’s or counsels’ attention or attempt to distinguish it from the case at bar. According to our Supreme Court We again emphasize, consistent with our precedent, that an appellate court can grant a petition for writ of certiorari only where there is “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Williams, 62 So.3d at 1132 (quoting Reeves, 889 So.2d at 822). The latter two elements, referred to as irreparable harm, are jurisdictional, but a court must also find that the decision below departed from the essential requirements of law before it can grant the writ. Rodriguez v. Miami-Dade County, 117 So. 3d 400, 406 (Fla. 2013) Generally, parties must wait until after a final order is issued before seeking appellate review. As we explained in Citizens Property Insurance, “[v]ery few categories of non-final orders qualify for the use of th[e] extraordinary writ” of common law certiorari. Citizens Prop. Ins. Corp., 104 So.3d at 351–52. In order to be entitled to certiorari relief from the denial of a motion for summary judgment, the petitioner must establish three elements: (1) the ruling “depart[s] from the essential Exhibit 3 Page 192 of 258 requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). The threshold question that must be reached first is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm. See id. Only after irreparable harm has been established can an appellate court then review whether the petitioner has also shown a departure from the essential requirements of law. Id. at 1132– 33. Id. In Citizens Property Insurance the Supreme Court analyzed whether an appellate court could use certiorari jurisdiction to address a non-final order where the trial court denied the defendant's claim that the suit was barred by sovereign immunity. The Supreme Court held that Citizens was not entitled to certiorari review of a non-final order because it did not suffer from irreparable harm “in requiring that appellate consideration of the sovereign immunity claim await the entry of a final judgment.” Citizens Prop. Ins. Corp., 104 So. 3d 344, 356 (Fla. 2012); Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 46 So. 3d 1051, 1053 (Fla. 1st DCA 2010). As the Supreme Court stressed in Citizens Property Insurance, “equating the defense of a lawsuit with the type of irreparable harm necessary for the threshold decision to invoke certiorari has the potential to eviscerate any limitations on the use Exhibit 3 Page 193 of 258 of this common law writ, which has always been narrowly applied.” Citizens Prop. Ins. Corp., 104 So. 3d 344, 356 (Fla. 2012), stating: Citizens' primary argument regarding irreparable harm is based on the continuation of defending a lawsuit. If we held that a party can show irreparable harm simply through the continuation of defending a lawsuit, such harm would apply to a multitude of situations well beyond this type of suit. Although Citizens is a “governmental entity,” § 627.351(6)(a) 1., Fla. Stat., under the statutory framework of section 627.351(6)(s) 1., the Legislature provided for only a limited waiver of sovereign immunity for certain designated claims, including both breach of contract pertaining to insurance coverage and willful torts. Thus, this case does not involve absolute immunity where a party is protected from being involved in a lawsuit of any nature. Citizens has not established that it will suffer irreparable harm, which is a necessary prerequisite for certiorari review. While Florida’s SLAPP statute protects some types of communications made in certain settings which most Americans would typically associate with the protected exercise of free speech under the First Amendment, SLAPP does not provide the absolute immunity found in other areas of Florida law where a party is protected from being involved in a lawsuit of any nature. Instead, SLAPP limits its reach to only those claims that are “without merit” and brought “primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue.” Respondent has established her claims have merit and that Petitioners’ “Electioneering Communication” is not “free speech in connection with a public issue”. Section 768.295, Fla. Stat. The San Perdido court instructed: Exhibit 3 Page 194 of 258 there has never been a blanket rule permitting immediate review of denials of motions to dismiss. Ordinarily, the expense of continued litigation does not constitute irreparable harm, and thus the district courts do not have jurisdiction to entertain petitions for certiorari based on a [petitioner’s] claim that it is entitled to immunity based on the particular facts of the lawsuit brought against it. Our precedent does not dictate the expansion of the right to immediate review of all adverse interlocutory orders—and certainly not through certiorari. Id. (Emphasis added). Because Petitioners cannot establish they have suffered a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm, the inquiry ends at this threshold jurisdictional question requiring the denial of certiorari and dismissal of the petitions. Rodriguez v. Miami-Dade County, 117 So. 3d 400, 408 (Fla. 2013) (“we reiterate that the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm. Thus, the use of certiorari review is improper in such an instance.”) Petitioners disregard the Supreme Court and instead rely on the inapplicable and distinguishable case of Gundel v. AV Homes, Inc., 264 So. 3d 304, 307 (Fla. 2d DCA 2019) which ignores the Florida Supreme Court’s decisions in Rodriguez and Citizens Property Insurance that expressly prohibit district courts from expanding the scope of certiorari review beyond the extremely limited scope prescribed by the Florida Supreme Court. Citizens Prop. Ins. Corp., 104 So. 3d 344, 356 (Fla. 2012) Exhibit 3 Page 195 of 258 (“Our precedent does not dictate the expansion of the right to immediate review of all adverse interlocutory orders—and certainly not through certiorari.”); Hoffman v. Jones, 280 So. 2d 431 (Fla.1973) (While parties may bring their concerns regarding the application of specific case law to the appellate courts, it is always bound to follow binding precedent.). In Gundel a group of residents within a country club governed as a homeowners association under chapter 720 of the Florida Statutes were unhappy when the developer of their community proposed to sell the country club’s amenities for $73.7 million, the purchase of which would be financed through the issuance of bonds to be repaid by the petitioning homeowners. The residents expressed concerns about the proposed sale and posted on internet blogs, spoke at meetings, distributed handouts, commented at other local meetings and circulated a petition to have the country club’s amenities appraised. Gundel at 306-7. Litigation ensued and the developer asserted counterclaims against the residents for breach of contract, breach of covenant, declaratory judgment, and tortious interference directly aimed at the residents’ protected free speech activities. Id. The residents then brought SLAPP motions which the circuit court denied. The Gundel court correctly analyzed that the only “harm” that may result from a trial court’s improper denial of SLAPP motions to dismiss and for summary Exhibit 3 Page 196 of 258 judgment is the continuation of litigation which according to the Supreme Court is not irreparable harm. However, instead of applying Rodriguez and properly denying certiorari the Second District ignored binding precedent and relied on the wrong SLAPP statute and a line of inapplicable punitive damages cases to do exactly what the Supreme Court forbids district courts from doing: expanding the scope of certiorari to a new class of interlocutory orders not listed in Rule 9.130(a) that would effectively eviscerate the limited scope of certiorari review. Citizens Prop. Ins. Corp., 104 So. 3d 344, 356 (Fla. 2012) (“Our precedent does not dictate the expansion of the right to immediate review of all adverse interlocutory orders—and certainly not through certiorari.”). Gundel is also inapplicable on its facts because it involved a specific SLAPP statute found in Chapter 720, the Homeowners Association Act, that only applies to parcel owners which Petitioners are not. § 720.304, Fla. Stat. (“It is the intent of the Legislature to protect the right of parcel owners to exercise their rights…) (Emphasis added). Another problem with the Gundel court’s position is that section 768.295 is of general application while section 720.304 applies more specifically to parcel owners within a homeowners association. Because more specific statutes control over general statutes, Ortiz v. Dep't of Health, 882 So.2d 402 (Fla. 4th DCA 2004), the specific statute applicable to homeowners associations applies in lieu of the Exhibit 3 Page 197 of 258 general SLAPP statute found at section 768.295. Transp. Cas. Ins. Co. v. All Am. Air Freight, Inc., 925 So. 2d 396, 397 (Fla. 4th DCA 2006). Since the Gundel court’s analysis should have been limited to and controlled by section 720.304, its bootstrapping of inapplicable section 768.295 violates Supreme Court precedent and should be ignored. Hoffman v. Jones, 280 So. 2d 431, 440 (Fla. 1973) (If there is a conflict between the decision of a District Court and the Florida Supreme Court, the Supreme Court’s decision “shall prevail until overruled by a subsequent decision” of the Supreme Court.”). The Gundel court’s reliance on a line of cases involving certiorari review of punitive damage claims is similarly unpersuasive because this is not (yet) a punitive damages case where irreparable harm could arise if financial worth discovery is obtained that could not be remedied on appeal. Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) established the maxim that certiorari review is available in punitive damage cases before financial worth discovery may be obtained; this ruling is sound policy because unlike the situation at bar no money award can compensate a party for the disclosure of sensitive financial information which cannot be remedied on appeal after final judgment. Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So. 2d 1162, 1164 (Fla. 3d DCA 1999) is inapplicable because the circuit court has not entered an order prohibiting the parties from discussing this case Exhibit 3 Page 198 of 258 in the media. In SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 110 So. 3d 87, 90 (Fla. 2d DCA 2013), certiorari was granted when the trial court entered an order precluding parties from communicating with any third party about the facts of the case without first proceeding through the court's formal discovery process, a situation not present here since the circuit court has not entered any such orders. The remaining cases relied on by Petitioners and the Amici are even further afield and should be ignored because they do not provide any authoritative guidance to aid this Court in its determination. Punitive damages and SLAPP are entirely unrelated topics because the harm that may arise from the disclosure of financial net worth discovery in a punitive damages case is not present in a SLAPP case where the only “harm” that may arise is continued litigation of Respondent’s common law defamation and conspiracy to defame claims none of which is irreparable harm required to obtain certiorari. According to the Supreme Court section 768.72 creates a “substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995). There is no similar substantive right found in the SLAPP statutes allowing a party to be free from continued legal action until the Exhibit 3 Page 199 of 258 circuit court makes an evidentiary ruling allowing the claim to proceed. Instead, SLAPP provides an optional, and constitutionally debatable, procedural method for a defendant in an existing civil action to obtain an “expedited” determination at the outset of the case that a plaintiff’s claims are not “without merit” and were not brought “primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue.” §768.295, Fla. Stat. The Gundel court also misconstrued the Supreme Court’s rulings on the unavailability of certiorari where a trial court denies a sovereign immunity claim and ignored the Supreme Court’s binding decisional law by considering irrelevant cases from other jurisdictions involving different SLAPP statutes, different legal standards, different evidentiary burdens and different facts, all of which violate the Supreme Court’s directive that when a Florida statute is “clear and unambiguous” courts are forbidden from looking beyond the plain language or employing the rules of construction to determine legislative intent—it simply applies the law. Gaulden v. State, 195 So. 3d 1123, 1125 (Fla. 2016) (quoting Borden v. E.-Eur. Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)). Because certiorari is not available to review an order denying a motion to dismiss on immunity grounds, Citizens Prop. Ins. Corp., 104 So. 3d 344, 356 (Fla. 2012), and because the Grundel court did not even consider let alone distinguish Exhibit 3 Page 200 of 258 Citizens Property Insurance, this Court must ignore the Gundel court’s misapplication of Florida law. Finally, the circuit court’s order does not violate any constitutional right because in a Florida civil action there is no constitutional right allowing a defendant to obtain an expedited disposition of a plaintiff’s common law defamation and conspiracy to defame claims. If anything, Florida’s SLAPP statute and its “expedited” procedural scheme appear to impair Respondent’s constitutional rights to a jury trial and to have her claims resolved in the Florida courts, practices other state supreme courts have taken issue with: The legislature may enact anti-SLAPP laws to prevent vexatious litigants from abusing the judicial process by filing frivolous lawsuits for improper purposes. But the constitutional conundrum that [SLAPP] creates is that it seeks to protect one group of citizen's constitutional rights of expression and petition—by cutting off another group's constitutional rights of petition and jury trial. This the legislature cannot do. See Opinion of the Justices, 138 N.H. 445, 641 A.2d 1012, 1015 (invalidating an anti-SLAPP bill because the law “cannot strengthen the constitutional rights of one group of citizens by infringing upon the rights of another group”). Davis v. Cox, 183 Wash. 2d 269, 295–96, 351 P.3d 862, 874–75 (Wash. 2015), abrogated on other grounds by Maytown Sand & Gravel, LLC v. Thurston County, 191 Wash. 2d 392, 423 P.3d 223 (Wash. 2018). Although this Court need not reach the constitutionality of section 768.295 to deny certiorari and dismiss the petitions, Exhibit 3 Page 201 of 258 Respondent is concerned that section 768.295 impermissibly seeks to protect one group of citizen’s rights of expression and petition by cutting off Respondent’s rights of redress and jury trial leading to a constitutional conundrum. Because the Supreme Court has not overruled its rulings in Rodriguez or Citizens Property Insurance this Court remains bound by those decisions. Bozeman v. Higginbotham, 923 So. 2d 535, 537 (Fla. 1st DCA 2006) (“The trial court erred by failing to apply Florida Supreme Court precedent to the instant case.”). Certiorari must be denied. Certiorari Must be Denied Because Petitioners Have Not Established a Violation of a Clearly Established Principle of Law Resulting in a Miscarriage of Justice Even if Petitioners establish that the continuation of the litigation below and any ensuing time, costs, and effort in defending such litigation does constitute irreparable harm, which would require this Court to ignore Supreme Court precedent and rewrite Florida law3, certiorari must still be denied and the petitions dismissed because Petitioners have not established the circuit court’s order departed from the 3 While parties may bring their concerns regarding the application of specific case law to the appellate courts, it is always bound to follow binding precedent. Hoffman v. Jones, 280 So. 2d 431 (Fla.1973); Bozeman v. Higginbotham, 923 So. 2d 535, 537 (Fla. 1st DCA 2006) (“The trial court erred by failing to apply Florida Supreme Court precedent to the instant case.”). Exhibit 3 Page 202 of 258 essential requirements of law. Indeed, Petitioners cannot establish the circuit court departed from the essential requirements of law because it applied the proper law, afforded Petitioners an extraordinary amount of due process and multiple opportunities to be heard, and, in a case of first impression there is no precedent for the circuit court to follow or essential requirements of law for the circuit court to depart from. According to the controlling Supreme Court precedent which Petitioners did not bring to either the Court’s or counsels’ attention, “Existing case law establishes that the departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error.” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000) (Emphasis added). A district court should examine the seriousness of the error and use its discretion to correct an error “only when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So. 2d 93, 95-96 (Fla.1983). In this case no error occurred because the established law provided no controlling principle and any resulting inconvenience or monetary loss Petitioners may suffer due to continued litigation below, while unfortunate from their Exhibit 3 Page 203 of 258 perspective, is not sufficient by itself to be a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). Petitioners do not suggest the circuit court applied the wrong law; they instead disagree with the circuit court’s interpretation of the applicable law which is an improper basis for certiorari according to the Florida Supreme Court. When the Court applies the controlling decisional law from Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000), denial of certiorari and dismissal of the petitions is required. Ivey at 683 (“In this case, it is clear that the Third District merely disagreed with the circuit court's interpretation of the applicable law, which, as explained in Heggs, is an improper basis for common law certiorari.”). Put another way, the outcome sought by Petitioners would impermissibly create a new category of appellate review never before recognized in Florida law, a practice expressly rejected by Ivey The Third District's decision did not even purport to consider why the circuit court's decision constituted a denial of procedural due process, application of incorrect law, or a miscarriage of justice, as is required by this Court's precedents. Rather, the district court below expressly created a new category of appellate review never before recognized under Florida law and in express and direct conflict with authority to the contrary. District courts have never been allowed to review decisions, under the guise of certiorari jurisdiction, simply because they are dissatisfied with the result of a decision…Certiorari relief should not be afforded so differently in our various appellate courts. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000). Exhibit 3 Page 204 of 258 The circuit court applied the correct law when it denied Petitioners’ SLAPP motions to dismiss because it cannot be disputed that Respondent stated a claim for common law defamation. “A common law claim for defamation requires the unprivileged publication (to a third party) of a false and defamatory statement concerning another, with fault amounting to at least negligence on behalf of the publisher, with damage ensuing.” Don King Productions, Inc. v. Walt Disney Co., 40 So. 3d 40, 43 (Fla. 4th DCA 2010). “For the purposes of a motion to dismiss…, allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.” Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983). The circuit court applied the correct law when it denied Petitioners’ SLAPP motions for summary judgment because Respondent’s claims have merit, the record below is not “crystalized”, and multiple genuine issues of material fact exist that the jury must decide at trial. “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.” Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011) (emphasis added) (citations omitted) (quoting Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008)). “If the record reflects the existence of any genuine issue of material fact or the possibility of any Exhibit 3 Page 205 of 258 issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d DCA 2015) (quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991)) (Emphasis added). Finally, the circuit court applied the correct SLAPP statute, section 768.295, when it held that Electioneering Communications defined by section 106.011 of the Florida Statutes are not entitled to SLAPP protection because the Legislature intentionally excluded “Electioneering Communications” when it substantially rewrote the SLAPP statute in 2015. While Respondent believes the circuit court correctly applied and interpreted section 768.295, even if the circuit court misapplied or misinterpreted section 768.295 that is insufficient to grant certiorari. Because the circuit court applied the correct law, afforded Petitioners an extraordinary amount of due process, and complied with the procedural requirements of section 768.295, certiorari must be denied. “The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010). Rather, “[c]ertiorari relief is reserved for serious legal errors.” Lake v. State, 193 So. 3d 932 (Fla. 4th DCA 2016)(emphasis added). “A court’s misapplication of the correct law or ‘erroneous interpretation of Exhibit 3 Page 206 of 258 [a] law’ does not rise to the necessary level.” State v. Veilleux, 859 So. 2d 1224, 1228 (Fla. 2d DCA 2003) (Emphasis added). At trial the jury will weigh the evidence and decide whether Respondent meets her burden of establishing actual malice on the part of Petitioners, some of which malice Respondent has already established through her affidavit and the depositions of representatives of St. Lucie County and the city of Port St. Lucie, some of which will be established through the discovery process below. Actual malice has been defined as knowledge that a statement was false, or reckless disregard of whether it was false or not. “Recklessness may be found where there are obvious reasons to doubt the veracity of the informant or accuracy of the reports.” Don King Productions, Inc. v. Walt Disney Company, 40 So. 3d 40, 43 (Fla. 4th DCA 2010). Ill will or motive may be combined with other evidence to show actual malice. Id. at 44. (Citing Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 668 (1989). Plaintiff may prove malice in the form of cumulative evidence, which is often the only way to prove it in some cases. Id. If Respondent establishes at trial that Petitioners acted with actual malice through their reckless disregard of sending thousands of two-sided color mailers to the residents of West Palm Beach falsely stating that Respondent committed serious crimes, even though the Petitioners knew or could have easily discovered their Exhibit 3 Page 207 of 258 claims about Respondent were false, Respondent will prevail on her common law defamation claims. Respondent also intends on establishing at trial that Petitioners conducted extensive polling and market research months prior to transmitting the Electioneering Communication to the residents of West Palm Beach. Even though Petitioners apparently committed significant resources to polling research and obtaining market data Petitioners nonetheless would have a jury believe they were unable to conduct even a bare bones public records search that would have lead them to the truth that Respondent never claimed an illegal double homestead and never sought or received any federal grant money intended for low income Port St. Lucie residents. The jury should hear Petitioners’ mystifying defenses and decide whether they are liable to Respondent for defamation and conspiracy to defame. Respondent also intends on establishing through discovery that Petitioners were motivated to defame Respondent as a part of their business objective to keep their clients and donors happy by ensuring that that Respondent was not re-elected. This driving motivation caused Petitioners to overlook clear inconsistencies and noted inaccuracies in the very documents which they allegedly relied upon. Petitioners ignored three different names as owner of the Port St. Lucie property, none of whom were Respondent; Petitioners ignored the “flagged document” from Exhibit 3 Page 208 of 258 the Tax Collector; Petitioners ignored the 2016 grant from Port St. Lucie which occurred at the same time as Joseph Silvestri owned the property; Petitioners ignored that the exemptions included senior citizen, veteran and “widower” exemptions, none of which could possibly apply to Respondent. These myriad inconsistencies placed Petitioners on notice that the little information they obtained from a cursory internet search was suspect and required further inquiry. Notably, the only public records requests were made after the lawsuit was filed, all of which could lead a reasonable jury to find Petitioners’ ill will or motive, when combined with the existing record evidence and other evidence, to show actual malice. Don King Productions, Inc. v. Walt Disney Company, 40 So. 3d 40, 43 (Fla. 4th DCA 2010). “Recklessness may be found where there are obvious reasons to doubt the veracity of the informant or accuracy of the reports.” Id. Ill will or motive may be combined with other evidence to show actual malice. Id. at 44. The existing record evidence is sufficient to lead a reasonable Palm Beach County jury to conclude that Petitioners acted with sufficient reckless disregard that their ill will or motive may be combined with other evidence to show actual malice. Certiorari must be denied. Exhibit 3 Page 209 of 258 CONCLUSION The purpose of permitting Petitioners to petition this Court for a writ of certiorari is to make sure the circuit court did not depart from the essential requirements of law causing Petitioners irreparable harm. Petitioners cannot satisfy the jurisdictional irreparable harm requirement because continued litigation and the associated costs and hassles are not irreparable harm. The essential requirements of law in this case required the circuit court, once Petitioners made the strategic decision to invoke SLAPP, to (1) set a deadline for Respondent to respond to Petitioners’ SLAPP motions to dismiss and motions for summary judgment, (2) set a hearing at the earliest possible time on Petitioners’ SLAPP motions “as soon as practicable” after Respondent filed her response to the SLAPP motions, and (3) hold the hearing on Petitioners’ SLAPP motions and issue a ruling. In an 11-page order the circuit court did exactly that. Even if this case were a direct appeal after final judgment the controlling authorities including Don King suggest this Court would not overturn the circuit court’s decision because Respondent stated claims for defamation and conspiracy to defame, Respondent’s claims have merit, and multiple, genuine issues of fact remain to be decided by the jury at trial regarding whether Petitioners acted with actual malice through reckless disregard by sending a two-sided color mailer to the Exhibit 3 Page 210 of 258 residents of West Palm Beach falsely stating that Respondent committed serious crimes even though the Petitioners knew or could have easily discovered their claims about Respondent were false. Here, where an extraordinary remedy is sought; where the standard of review is significantly higher; where it must be shown that Petitioners suffered irreparable harm that cannot be remedied on appeal after final judgment; where it must be shown the circuit court departed from the essential requirements of law; where it must be shown the circuit judge made more than a “misapplication of the correct law or erroneous interpretation of a law,” Petitioners simply cannot prevail. Lake v. State, 193 So. 3d 932 (Fla. 4th DCA 2016); State v. Veilleux, 859 So. 2d 1224, 1228 (Fla. 2d DCA 2003). WHEREFORE Respondent, Sharon “Shanon” Materio, requests this Court deny certiorari, dismiss the petitions, and grant Respondent’s previously filed motion for appellate attorneys’ fees together with such other and further relief as this Court deems just, proper and equitable under the facts and circumstances of this case. Exhibit 3 Page 211 of 258 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 24, 2019, a true and correct copy of the foregoing was served on the individuals listed on the attached service list. JANSSEN, SIRACUSA & KEEGAN PLLC 120 S. Olive Avenue, Suite 504 West Palm Beach, FL 33401 Telephone: 561-420-0583 Email: [email protected] Email: [email protected] Email: [email protected] BY: Mark G. Keegan______JOSEPH W. JANSSEN, III Florida Bar No. 160067 JOHN M. SIRACUSA Florida Bar No. 159670 MARK G. KEEGAN Florida Bar No. 503371 SERVICE LIST: Leonard Feuer, Esq. Leonard Feuer, P.A. 240 10th Street West Palm Beach, FL 33401 Via Email: [email protected] Counsel for Petitioner, WPB Residents for Integrity in Government, Inc. William N. Shepherd, Esq. Seth J. Welner, Esq. Jeffrey Schacknow, Esq. Holland & Knight LLP 222 Lakeview Avenue, Suite 1000 West Palm Beach, FL 33401 Via Email: [email protected] Via Email: [email protected] Exhibit 3 Page 212 of 258 Via Email: [email protected] Counsel for Petitioners, Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani Frank A. Shepherd, Esq. GrayRobinson, P.A. 333 SE 2nd Avenue, Suite 3200 Miami, FL 33131 Via Email: [email protected] Counsel for Amicus Curiae Americans for Prosperity and Public Participation Project Via Hand Delivery The Honorable Jeffrey Dana Gillen Judge Daniel T. K. Hurley Courthouse Room number: 9.1216 205 North Dixie Hwy. West Palm Beach, FL 33401 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Response complies with the requirements of Florida Rule of Appellate Procedure 9.100(l) as it has been prepared in Times New Roman 14-point font. BY: Mark G. Keegan______Filing # 90870168 E-Filed 06/10/2019 09:11:19 PM Exhibit 3 Page 213 of 258 IN THE FOURTH DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA CASE NO. 4D19-0967 WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC., Petitioner, vs. SHARON “SHANON” MATERIO, Respondent. ON CERTIORARI REVIEW FROM THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA, LOWER COURT CASE NO. 502018CA012422 PETITIONER WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC.’S REPLY TO RESPONDENT SHARON “SHANON” MATERIO’S RESPONSE LEONARD FEUER, P.A. Leonard Feuer, Esq. Fla. Bar No. 501751 [email protected] Attorney for Petitioner 240 10th Street West Palm Beach, FL 33401 Tel: (561) 659-1360 | Fax: (561) 249-4100 Exhibit 3 Page 214 of 258 ARGUMENT Respondent’s arguments in opposition to the Petition for Writ of Certiorari can be distilled to the following: 1) certiorari is legally impermissible because the lower court applied the correct statute, even if the court interpreted it incorrectly,1 and continued litigation does not constitute harm;2 2) the lower court was correct to strictly interpret Fla. Stat. § 768.295, which the legislature intentionally excluded from its ambit “Electioneering Communications”;3 3) Gundel v. AV Homes, Inc., 264 So.3d 304 (Fla. 2d DCA 2019), while on point, should be shunned;4 4) Fla. Stat. § 768.295 is likely unconstitutional for violating Materio’s right to access the Courts and her right to a jury trial;5 and 5) Petitioners acted with “actual malice” because they did not adequately investigate the facts addressed in the publication at issue, i.e., they acted with negligence.6 Respondent’s arguments are each unavailing for the following reasons. 1 (Response, passim.) 2 (Response, 26-31.) 3 (Response, 21-22, 25-26, passim.) 4 (Response, 32-38.) 5 (Response, 2-3, 16 n.2, 17, 21, 28, 38.) 6 (Response, 45-46); See Masson v. New Yorker Magazine, 501 U.S. 496, 510 (1991) (“‘Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author ‘in fact entertained serious doubts as to the truth of his publication,’ or acted with a ‘high degree of awareness of ... probable falsity.’”) (internal citation omitted). Exhibit 3 Page 215 of 258 I. CERTIORARI REVIEW IS APPROPRIATE The opinion in Gundel v. AV Homes, Inc. sets forth the correct standard for certiorari review of an unappealable nonfinal order of a trial court in a civil matter. Gundel, at 310 (“(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’”) Respondent’s criticism of Gundel for disregarding the Court’s opinion in Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000), (Response, 41), is without merit as Ivey addressed certiorari relief arising from a district court’s second-tier certiorari review of a decision by a three-judge panel of the circuit court in its appellate capacity. There are different standards applied for each of the three (3) circumstances for which certiorari review is contemplated.7 In the instant case, there has been no appellate review except for the relief sought through the instant Petitions. The Rules of Appellate Procedure do not provide for a direct appeal of a nonfinal order denying a motion filed pursuant to Fla. Stat. § 769.295. See Fla. R. App. P. 9.130. Jones v. State, 477 So. 2d 566, 567 (Fla. 1985) (Boyd, C.J., concurring) (“The absence of a right to appeal does not preclude resort to certiorari; in fact it is one of the required elements making the aggrieved litigant eligible to seek issuance of the writ.”) 7 These include appellate decisions of the circuit court, unappealable nonfinal orders of a county or circuit trial court and an unappealable final order of a local administrative body. Exhibit 3 Page 216 of 258 Respondent’s argument that continued litigation does not constitute harm sufficient to invoke certiorari review is also meritless as Petitioners are availing themselves of a statutory right to not be sued. The court in Gundel recognized that Fla. Stat. § 769.295(3) “creates a right not to be subject to meritless suits filed ‘primarily because [the defendant] has exercised the constitutional right of free speech in connection with a public issue.’” Gundel at 310. It is the statutory right to be free from Materio’s specific brand of meritless lawsuit that establishes Petitioner’s material injury that cannot be corrected on postjudgment appeal. In Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So. 3d 344 (Fla. 2012), the Court clarified that its policy against certiorari review for unappealable interlocutory orders “must be differentiated from those cases involving absolute immunity, which is intended to prevent a party from becoming involved in a lawsuit altogether.” Id. at 353. See Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012) (“If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant.”) Materio is also incorrect that a lower court’s erroneous interpretation of a statute cannot form a basis for certiorari relief. This Court in Ross v. State, 876 So.2d 684 (Fla. 4th DCA 2004) cited Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. Exhibit 3 Page 217 of 258 2003) for the proposition that “an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.” Ross, at 686. II. THE ANTI-SLAPP STATUTE IS REMEDIAL AND SHOULD BE LIBERALLY CONSTRUED Materio’s Response has failed to address, let alone rebut, Petitioner’s argument that Fla. Stat. § 768.295 should be liberally construed given its patently remedial purpose. (WPB Resident’s Petition, 23-28.); See Irven v. Dep't of Health & Rehab. Services, 790 So. 2d 403, 406 (Fla. 2001) (“When a statute is both in derogation of the common law and remedial in nature, the rule of strict construction should not be applied so as to frustrate the legislative intent. The statute should be construed liberally in order to give effect to the legislation.”); Klepper v. Breslin, 83 So.2d 587, 592 (Fla.1955); Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992). III. THE LEGISLATURE DID NOT SPECIFICALLY EXCLUDE ELECTIONEERING COMMUNICATIONS FROM ITS AMBIT Materio repeatedly asserts that Florida’s Legislature intentionally excluded Electioneering Communications from Fla. Stat. § 768.295 yet provides no support for her assertion. (Response, 5, 17, 43.) Petitioner has argued that the application of expressio unius est exclusio alterius, as applied by the trial court and promoted by Respondent, renders the statutory phrases “in connection with” and “or other similar Exhibit 3 Page 218 of 258 work” meaningless surplusage. (WPB Resident’s Petition, 31-35.) Materio’s argument is inconsistent with this Court’s use of the doctrine of expressio unius est exclusio alterius. See Lowe v. Broward County, 766 So. 2d 1199, 1208 (Fla. 4th DCA 2000) (expressio unius est exclusio alterius is inapplicable when a term is undefined or a “general concept without precise definition, so that it cannot be said that it ‘expressly describes the particular situation in which something should apply.’”) Materio fails to address this argument in her Response. IV. MATERIO ADMITS THAT PETITIONER DID NOT KNOW OF CONFLICTING FACTS PRIOR TO PUBLICATION Materio admits in her Response that “the only public records requests were made [by Petitioners] after the lawsuit was filed.” (Response, 46.) Materio argues that Petitioners’ failure to file public records requests is evidence of actual malice, without citing a reasons why Petitioners should have doubted information garnered from other governmental sources. (Response, 45.) Materio repeatedly argues negligence, disguised as actual malice. Negligence is not enough. “A public figure bringing a defamation action must prove more than mere negligence on the part of the publisher; he must prove that the publisher acted with actual malice.” Don King Productions, Inc. v. Walt Disney Co., 40 So. 3d 40, 43 (Fla. 4th DCA 2010). “The law is well established that the failure to investigate, without more, does not constitute actual malice.” Id. at 45. Nor does ill will or spite constitute actual malice. “An intention to portray a public figure in a negative light, Exhibit 3 Page 219 of 258 even when motivated by ill will or evil intent, is not sufficient to show actual malice unless the publisher intended to inflict harm through knowing or reckless falsehood.” Id. Materio’s facts and arguments fail to rebut that Petitioners’ relied on reliable sources of information and did not act in reckless disregard of the truth or falsity of any statements known to them. See Dockery v. Florida Democratic Party, 799 So. 2d 291, 296 (Fla. 2d DCA 2001) (Reliance upon a reliable source insulates a defendant from a finding of actual malice as a matter of law.) Mile Marker, Inc. v. Petersen Publishing, L.L.C., 811 So.2d 841, 845 (Fla. 4th DCA 2002) (“where public figures are concerned, the state's interest in protecting the defamed subject's reputation is lessened, and as such, public plaintiffs must allege a higher level of mens rea on behalf of defendant publishers, in order to balance the attendant First Amendment concerns bound up with defamation and public speech.”) Petitioners were not required to prove the official records that they relied upon as false, nor second-guess the veracity or completeness of the trust documents which Materio caused to be filed in 2017 as a complete document, without reference to any amendments. Materio’s record evidence of facts purportedly inconsistent with those Petitioners relied upon were gleaned from deposing public officials. The First Amendment does not require a thorough inquest by a declarant as a condition precedent to political speech addressing the qualifications of public official Exhibit 3 Page 220 of 258 running for reelection. Materio fails to even address her own last-minute exhibit from the hearing before the trial court, consisting of the memorandum from the Office of the State Attorney. (Co-Petitioner Cornerstone & Asnani’s App., 812) Petitioners were entitled to rely upon statements by law enforcement validating their facts and conclusions. Further, the facts Petitioners had uncovered were taken to a law enforcement agency whose profession requires the investigation of such claims. If Petitioners were acting in disregard of the veracity of facts known to them, it defies logic that they would take such information to a government agency whose core mission is investigation of facts. Petitioner’s actions were consistent with a good faith belief in the facts they uncovered rose to the level of criminal activity. It was Materio’s obligation to prove actual malice by clear and convincing evidence and she failed to meet that burden. Further, Materio’s self-serving conclusory statements about Petitioners in her affidavit are legally insufficient to raise material issues of fact. A public-figure defamation plaintiff may not presume the defendant disregarded facts inconsistent with those made in a publication, even if false. Factual revelations occurring after publication do not reach back in time and convert a publisher’s good faith belief into reckless disregard. Exhibit 3 Page 221 of 258 V. MATERIO IS INCORRECT THAT § 768.295 IS CONSTITUTIONALLY INFIRM AND FAILED TO PRESERVE SUCH ARGUMENTS Respondent’s arguments regarding any constitutional infirmity of Fla. Stat. § 768.295 are not preserved as such were not presented to the lower court. However, Respondent’s claim that § 768.295 violates her right of access to the courts is without merit. The holding in New York Times v. Sullivan, 376 U.S. 254 (1964) became law in every state in our union in 1964. When the New York Times opinion became final a public figure defamation plaintiff had no viable defamation claim without actual malice. Florida’s Constitutional Right of Access to Courts is interpreted according to the law in effect in 1968, when Florida’s Declaration of Rights were passed. Estate of McCall v. United States, 134 So. 3d 894, 915 (Fla. 2014) (“The provision of the Florida Constitution that governs access to courts protects those rights which existed either at common law or by statute prior to the adoption of the 1968 Declaration of Rights.”) Further, Materio’s claim that granting summary judgment or a motion to dismiss equates to a denial of a constitutional right to a jury trial is inconsistent with Florida law preferring a more liberal granting of summary judgments in defamation actions brought by public-figure plaintiffs. See Mile Marker, Inc. v. Petersen Publishing, L.L.C., 811 So.2d 841, 846-7 (Fla. 4th DCA 2002); Dockery v. Fla. Democratic Party, 799 So.2d 291 (Fla. 2d DCA 2001). Exhibit 3 Page 222 of 258 VI. THIS COURT COULD GRANT A WRIT OF PROHIBITION AS AN ALTERNATIVE METHOD OF RELIEF8 The legislature’s prohibition of SLAPP lawsuits operates to divest courts of subject matter jurisdiction over such claims, just as in cases involving statutes expressly conferring immunity. Fla. Stat. § 768.295(1) & (3). The review of a denial of motion to dismiss, filed pursuant to Fla. Stat. § 768.295 should be as reviewable through a petition for writ of prohibition as the denial of a claim for immunity. See Little v. State, 111 So.3d 214, 216 (Fla. 2d DCA 2014) (“Because this issue involves a determination of whether the circuit court has continuing jurisdiction over Little, see Tsavaris v. Scruggs, 360 So.2d 745, 747 (Fla.1977), we treat the petition for writ of certiorari as a petition for writ of prohibition.”) For example, prohibition was determined as the best procedural vehicle to review the denials of claims for statutory immunity from civil liability and criminal prosecutions, pursuant to the Stand Your Ground statutory regime. In Joseph v. State, 103 So.3d 227 (Fla. 4th DCA 2012),9 this Court recognized a writ of prohibition is the appropriate procedural mechanism to review denials of motions to dismiss asserting Stand Your Ground Immunity. Prohibition is the proper procedural 8 Fla. R. App. P. 9.040(c) sets forth “If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.” 9 The holding in Joseph was partially superseded by statute. See Langel v. State, 255 So.3d 359 (Fla. 4th DCA 2018). Exhibit 3 Page 223 of 258 vehicle to review immunity denials of civil claims of Stand Your Ground Immunity as well. See Professional Roofing and Sales, Inc. v. Flemmings, 138 So.3d 524 (Fla. 3d DCA 2014), approved by, Kumar v. Patel, 227 So.3d 557 (Fla. 2017). In Joseph, this Court quoted Tsavaris v. Scruggs, 360 So.2d 745 (Fla. 1977) for what is now an apodictic proposition about relief through petition for writ of prohibition for criminal defendants seeking to avail themselves of a right to immunity. (T)he appropriate remedy ... would be to challenge the jurisdiction of the ... court to proceed by claiming immunity, and then, if that court proceeded, to seek relief by writ of prohibition in the appropriate court, that is, in the court having appellate jurisdiction....Where a case is pending in the criminal court against a person claiming immunity ... it would be the duty of the criminal court involved to give effect to such immunity if it existed. Should the criminal court in such a case refuse to recognize the immunity the further action of that court in prosecuting the cause would amount to an excess of jurisdiction which then would be subject to restraint by prohibition. Joseph v. State, 103 So. 3d 227, 229 (Fla. 4th DCA 2012) (quoting Tsavaris, at 747) (emphasis added)). A person with a statutory entitlement to not be sued, by virtue of a legislative prohibition of the claim, is immune from the prohibited claim. Therefore, prohibition should be an available remedy to restrain the lower court’s continued exercise of jurisdiction over a prohibited meritless lawsuit. Exhibit 3 Page 224 of 258 CONCLUSION WHEREFORE, Petitioners respectfully request that this Court issue the writ, quash the trial court’s order, grant Petitioners’ motion to dismiss / summary judgment with prejudice, and remand to the lower court for a determination of reasonable attorneys’ fees and costs. Dated: June 10, 2019 Leonard Feuer, P.A. 240 10th Street West Palm Beach, FL 33401 Tel: (561) 659-1360 /s/ Leonard Feuer Leonard Feuer, Esq. Florida Bar No.: 501751 Email: [email protected] CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to counsel for Respondent, Mr. Joseph Janssen, Esq., Janssen, Siracusa & Keegan, PLLC, 120 S. Olive Avenue, Suite 504, West Palm Beach, FL 33401, via [email protected], [email protected], [email protected], and counsel for Cornerstone Solutions Florida, LLC, and Pradeep Asnani, Mr. William Shepherd, Esq., Holland & Knight, 222 Lakeview Avenue, Suite 1000, West Palm Beach, FL 33401, via [email protected], [email protected], Exhibit 3 Page 225 of 258 by ELECTRONIC MAIL and the Hon. Jeffrey D. Gillen, 205 N. Dixie Highway, Room 9.1216, West Palm Beach, FL 33401, on this the 10th day of June 2019. Leonard Feuer, P.A. 240 10th Street West Palm Beach, FL 33401 Tel: (561) 659-1360 /s/ Leonard Feuer Leonard Feuer, Esq. Florida Bar No.: 501751 Email: [email protected] CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS I HEREBY CERTIFY that the Petition for Writ of Certiorari filed in this case complies with the font requirements of Rule 9.100(1) of the Florida Rules of Appellate Procedure. /s/ Leonard Feuer Leonard Feuer, Esq. Florida Bar No.: 501751 Filing # 90855843 E-Filed 06/10/2019 04:17:27 PM Exhibit 3 Page 226 of 258 IN THE FOURTH DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA CONSOLIDATED CASE NO. 4D19-0967 and 4D19-0997 L.T. No. 502018CA012422XXXXMB WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC., Petitioner, vs. Case No. 4D19-0967 SHARON “SHANON” MATERIO, Respondent. ______ CORNERSTONE SOLUTIONS FLORIDA, LLC, and PRADEEP ASNANI a/k/a RICK ASNANI Petitioners, vs. Case No. 4D19-0997 SHARON “SHANON” MATERIO, Respondent. / PETITIONERS’ REPLY TO RESPONDENT’S RESPONSE TO PETITIONS FOR WRIT OF CERTIORARI Petitioners, Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani (“Asnani”) (collectively “Petitioners”) hereby reply to Respondent’s Response to Petitions for Writs of Certiorari (“Response”), and state: Exhibit 3 Page 227 of 258 INTRODUCTION AND JURISDICTION Although Respondent labels this a “novel case [] of first impression in the Florida courts,” (Response at 5), the question of certiorari jurisdiction for review of a denial of an Anti-SLAPP motion to dismiss has already been decided. In Gundel v. AV Homes, Inc., the Second District Court of Appeal invoked certiorari jurisdiction and held that a wrongful denial of an Anti-SLAPP motion to dismiss under section 768.295, Florida Statutes, was a departure from the essential requirements of law and resulted in harm that a plenary appeal could not correct. 264 So. 3d 304, 310-11(Fla. 2d DCA 2019). As explained in Gundel, “the Anti- SLAPP statute bears some similarity to statutes providing for immunity from suit where the statutory protection cannot be adequately restored once it is lost through litigation and trial.” Id. at 311. While Respondent argues that Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400, 406 (Fla. 2013) and Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344 (Fla. 2012) instruct against certiorari relief, (Response at 27), neither case involved, as here, the statutory creation of a substantive right to not be sued, and a legislative directive stating “the threat of financial liability, litigation costs, . . . and other personal losses from groundless lawsuits seriously affects . . . individual rights.” Ch. 2000-174, § 1, Laws of Fla. Additionally, the San Perdido Court 2 Exhibit 3 Page 228 of 258 specifically limited the certified question, and its holding, to cases involving Citizens Property Insurance Co. only. See San Perdido Ass’n, Inc., 104 So. 3d at 346. Consistent with Gundel, certiorari jurisdiction exists here to protect Petitioners’ substantive rights as created by the Anti-SLAPP statute, and to meet clear legislative directives. See Gundel, 264 So. 3d at 310 (“The statutory language and its stated purpose, in addition to case law governing similar statutes, supports our conclusion that the jurisdictional prongs of the certiorari standard have been met.”). In the event this Court disagrees with Gundel, Petitioners respectfully request that the Court certify conflict with the Second District Court of Appeal. Moreover, Respondent’s roundabout attempt to assert a constitutional challenge is hollow. Most importantly, Respondent never raised a constitutional challenge at the trial court level and never gave the required notice of such a challenge to the state of Florida.1 As such, Respondent is barred from raising a 1 See Florida Rule of Civil Procedure 1.071: “A party that files a pleading, written motion, or other document drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must promptly (a) file a notice of constitutional question stating the question and identifying the document that raises it; and (b) serve the notice and the pleading, written motion, or other document drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise on the Attorney General or the 3 Exhibit 3 Page 229 of 258 constitutional challenge now for the first time on appeal.2 A.A.F. v. Dep't of Children & Families, 211 So. 3d 271 (Fla. 4th DCA 2017) (holding that an as-applied constitutional challenge cannot be raised for the first time on appeal). Respondent focuses on the above two arguments in an attempt to distract the Court from the trial court’s erroneous order and the glaring weaknesses in Respondent’s case. Specifically, Respondent wholly ignores I. that Asnani was told by law enforcement that - based on public documents - Respondent “should be investigated” for homestead fraud and grand theft; II. that the Anti-SLAPP statute’s catch-all provision covers the First-Amendment-protected communication published by Petitioners; III. that the trial court relied on a repealed law when concluding that the Anti-SLAPP statute was in derogation of the common law; and IV. the policy arguments made by the amici curiae in support of Petitioners’ brief. state attorney of the judicial circuit in which the action is pending, by either certified or registered mail.” (emphasis added). 2 Regardless, Respondent’s suggestion that Petitioners’ use of Florida’s Anti-SLAPP statute is an “unprecedented blitzkrieg” flies in the face of both the 30 territorial jurisdictions in the United States that have Anti-SLAPP statutes and the policy arguments made by the amici curiae filed in support of Petitioners’ brief. See State Anti-SLAPP Laws, PUBLIC PARTICIPATION PROJECT, https://static1.squarespace.com/static/5890bc421b10e39a2ab9c2bd/t/59efdd88227 8e76ed41e5270/1508892041130/Anti-SLAPP_State_Table+10_24_17.pdf (last visited June 6, 2019). 4 Exhibit 3 Page 230 of 258 I. RESPONDENT DOES NOT ADDRESS THAT LAW ENFORCEMENT TOLD ASNANI THAT – BASED ON PUBLIC DOCUMENTS – RESPONDENT SHOULD BE INVESTIGATED FOR HOMESTEAD FRAUD AND GRAND THEFT. Respondent ignores that, prior to publishing the mailer, Asnani conducted due diligence by meeting with the State Attorney’s Office (“SAO”). At that meeting, SAO and a detective directed Asnani to the FBI for further investigation of Respondent. Indeed, this meeting was memorialized in a memo where the SAO concluded that Respondent “should be investigated” for homestead fraud and grand theft (“SAO Memo”) (A812).3 Asnani outlined the meeting’s conclusions in an affidavit he filed in support of his Anti-SLAPP motion to dismiss. (A92-93; A497). The SAO Memo conclusively shows that Asnani had a legitimate basis for making his publication. As a result, Respondent cannot meet the high standard for proving defamation as set out in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The SAO Memo provided, among other things, as follows: 3 “A” is the appendix filed with our Petition. 5 Exhibit 3 Page 231 of 258 (A812). Instead of addressing the SAO Memo, Respondent offers deposition testimony from a clerk at the Property Appraiser’s Office. (Response at 12-13). However, the Property Appraiser’s role is to file documents, including both valid and fraudulent ones. In other words, the Property Appraiser’s role is ministerial.4 That office’s failure to dig deeper to determine ownership through a trust is not evidence of Respondent’s lack of criminal conduct and has no weight compared to the instructions given to Asnani by law enforcement that Respondent “should be investigated” for homestead fraud and grand theft. II. RESPONDENT FAILS TO EXPLAIN WHY PETITIONERS’ FIRST- AMENDMENT-PROTECTED COMMUNICATION SHOULD NOT BE INCLUDED WITHIN ANTI-SLAPP’S CATCH-ALL PROVISION Respondent ignores that the Anti-SLAPP statute’s enumerated list contains a broad, catch-all provision. Instead, Respondent suggests that because Electioneering Communication is a defined term elsewhere in the Florida Statutes and was not specifically listed in Anti-SLAPP’s enumerated list, then it must not be covered by Anti-SLAPP’s protection. Put differently, Respondent’s position is that, despite the existence of a catch-all provision, Anti-SLAPP protection does not extend to any 4 See generally The Crossings at Fleming Island Community Development District vs. Echeverri, 991 So. 2d 793, 797-99 (Fla. 2008). Moreover, the Property Appraiser’s interpretation has no bearing on this Court because this Court does not apply Chevron deference to determinations by the Property Appraiser. See Article V, Sec. 21, Fla. Const. 6 Exhibit 3 Page 232 of 258 terms defined anywhere else in Florida Statutes. Respondent has provided no support for this proposition. By contrast, the Gundel court found that an HOA flyer is covered by Anti- SLAPP’s protection even though an “HOA flyer” is not expressly enumerated within the Anti-SLAPP statute. 264 So. 3d at 310-11. Indeed, Gundel’s holding follows logically from a plain reading of the statute: “Free speech in connection with public issues” ‘means any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.’” § 768.295(2)(a), Fla. Stat. (2018) (emphasis added). Tellingly, the catch-all provision includes “or other similar work” and therefore necessarily includes non-listed means of mass communication that are “similar” to those listed on the enumerated list (i.e. modes of mass communication concerning public issues). There is no limitation, as suggested by Respondent, that terms elsewhere defined in the Florida Statutes are exempted from this catch-all provision. Instead, given that the very purpose of an Electioneering Communication is to inform the masses about an issue of public importance, it is the exact type of medium designed to be covered by the catch-all provision, just like the HOA flyer 7 Exhibit 3 Page 233 of 258 in Gundel. Indeed, Respondent’s argument would lead to the absurd result that an Electioneering Communication, if distributed as an “audiovisual work,” or as a radio broadcast or television commercial, would both be included and excluded from the protections of the Anti-SLAPP statute simultaneously. If that were so, then the Legislature would have qualified its list through stating, “unless the written or oral statement is made as an Electioneering Communication,” or with some like-worded exclusion. The Legislature did not do so. III. RESPONDENT OFFERS NO JUSTIFICATION FOR THE TRIAL COURT’S RELIANCE ON A REPEALED LAW IN ERRONEOUSLY FINDING THAT THE ANTI-SLAPP STATUTE IS IN DEROGATION OF THE COMMON LAW. Respondent ignores that the cases relied upon by the trial court for the notion that Chapter 768 is in derogation of the common law analyze a repealed statute and have nothing to do with the Anti-SLAPP statute. Indeed, the case relied upon by the trial court, Ballard v. Curatolo, 363 So. 2d 864, 865 (Fla. 4th DCA 1978), cited to Green v. Broward General Medical Center, 356 So. 2d 877 (Fla. 4th DCA 1978). Green specifically held that a “medical mediation procedure”, enacted as part of Chapter 768, was in derogation of the common law. However, that “medical mediation procedure” had nothing to do with Anti-SLAPP and was repealed in 1983. Green’s holding is confined to that no longer valid statute. Respondent’s Response does not address the trial court’s reliance on case law analyzing a repealed statute because this defect cannot be cured. The trial court’s 8 Exhibit 3 Page 234 of 258 error is a departure from the essential requirements of law and stands alone as a reason to reverse, particularly because it caused the trial court to incorrectly apply a strict construction analysis that read “other similar work” out of the statute. IV. RESPONDENT FAILS TO ADDRESS THE POLICY ARGUMENTS MADE IN THE AMICI CURIAE BRIEF Respondent ignores the amici curiae brief filed in support of Petitioners’ brief. Respondent opposed the filing, yet now is silent as to the compelling points raised. Indeed, the amici curiae brief offers several compelling reasons for how and why the Anti-SLAPP statute is designed specifically to protect individuals and entities such as Petitioners here. V. CONCLUSION For all these reasons, as well as the additional ones detailed in Petitioners’ Petition for Writ of Certiorari, Respondent’s underlying defamation suit is meritless and should have been properly dismissed under the Anti-SLAPP Statute. The trial court’s ruling fails to meet the Legislature’s broad directive to insulate individuals and entities from SLAPP suits, and, left undisturbed, will chill the First Amendment- protected speech the statute was designed to protect. WHEREFORE, Petitioners respectfully request that this Court quash the trial court’s order, grant Petitioners’ motion to dismiss with prejudice, and remand to the lower court for a determination of reasonable attorneys’ fees and costs. 9 Exhibit 3 Page 235 of 258 Respectfully submitted, HOLLAND & KNIGHT LLP Counsel for Petitioners Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani 222 Lakeview Avenue, Suite 1000 West Palm Beach, Florida 33401 T: 561.833.2000 F: 561.650-8399 /s/William N. Shepherd William N. Shepherd, Esq. Florida Bar Number: 88668 [email protected] Seth J. Welner, Esq. Florida Bar Number: 99214 [email protected] Jeff Schacknow Florida Bar Number: 1004628 [email protected] CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10th day of June, 2019, I electronically filed the foregoing with the Clerk of the Fourth District of Appeal via the Florida Courts E-Filing Portal System and that a true and correct copy has been served via transmission of Notices of Electronic Filing generated by the ePortal System or by some other authorized manner pursuant to the following Service List: /s/ William N. Shepherd William N. Shepherd, Esq. 10 Exhibit 3 Page 236 of 258 SERVICE LIST Joseph W. Janssen, III, Esq. Leonard Feuer, Esq. John M. Siracusa, Esq. LEONARD FEUER, P.A. Mark G. Keegan, Esq. 240 10th Street JANSSEN, SIRACUSA & KEEGAN PLLC West Palm Beach, Florida 33401 120 South Olive Avenue, Suite 504 T: 561.659.1360 West Palm Beach, Florida 33401 Email: [email protected] T: 561.420.0583 Counsel for WPB Residents for F: 561.420.0576 Integrity in Government, Inc. Email: [email protected] Email: [email protected] Email: [email protected] Counsel for Respondent Frank A. Shepherd, Esq. GrayRobinson, P.A. 333 SE 2nd Avenue, Suite 3200 Miami, FL 33131 T: 305.416.6880 Email: Frank.shepherd@gray- robinson.com Counsel for Americans for Prosperity, he Public Participation Project, and First Amendment Foundation CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Motion complies with the requirements of Florida Rule of Appellate Procedure 9.100(1) as it has been prepared in Times New Roman 14-point font. /s/ William N. Shepherd William N. Shepherd 11 Filing # 87997677 E-Filed 04/15/2019 04:03:11 PM Exhibit 3 Page 237 of 258 IN THE DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT CASE NO. 4D19-0997 CORNERSTONE SOLUTIONS FLORIDA, LLC and PRADEEP ASNANI a/k/a RICK ASNANI Defendants/Petitioners, vs. SHARON "SHANON" MATERIO, Plaintiff/Respondent. On Review from the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida Case No. 502018CA012422XXXXMB AMICUS CURIAE BRIEF OF AMERICANS FOR PROSPERITY AND THE PUBLIC PARTICIPATION PROJECT IN SUPPORT OF PETITIONERS Frank A. Shepherd, Esq. Florida Bar No. 152620 [email protected] GRAYROBINSON, P.A. 333 S.E. Second Avenue, Suite 3200 Miami, Florida 33131 Telephone: (305) 416-6880 Counsel for Amicus Curiae Americans for Prosperity and Public Participation Project Exhibit 3 Page 238 of 258 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ARGUMENT 1 CERTIFICATE OF SERVICE 6 CERTIFICATE OF COMPLIANCE 7 Exhibit 3 Page 239 of 258 TABLE OF AUTHORITIES Page Cases Dombrowski v. Pfister, 380 U.S. 479 (1965) 2,3, 4 Herbert v. Lando, 441 U.S. 153 (1979) 3 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 2,3, 4 Other Authorities Zachary N. Zaharoff, Defaming the Prince: Why the Media is Entitled to Immunity from a Presidential Defamation Suit, 27 Kan. J.L. & Pub. Pol'y (2017) 3 ii Exhibit 3 Page 240 of 258 IDENTITY OF AMICUS AND STATEMENT OF INTEREST Americans for Prosperity is a nonprofit organization that seeks to recruit, educate and mobilize citizens to build a culture of mutual benefit in which people succeed by helping others to improve their lives. AFP believes that such a culture can flourish only in a society that values and protects free speech rights and vigorously defends the freedom to criticize political leaders. The lower court decision harms AFP's interests insofar as it chills political speech, shields politicians from criticism by their constituents, and undermines the culture of openness and mutual benefit essential to the enhancement of individual freedom. The Public Participation Project ("PPP") is a nonprofit organization working to pass federal Anti-SLAPP legislation in Congress. PPP also assists individuals and organizations working to pass state Anti-SLAPP legislation. As part of its nationwide educational efforts, the PPP seeks to advance generally the principles of free speech and petition as embodied in the First Amendment. The lower court decision harms PPP's interests insofar as it excludes a category of political speech from the coverage of Florida's anti-SLAPP law, in deviation from the Constitutional and policy principles underlying the statute. ARGUMENT This suit is a paradigmatic Strategic Lawsuit Against Public Participation, or "SLAPP." A SLAPP is a specific type of frivolous private legal action, one 1 Exhibit 3 Page 241 of 258 brought to harass or retaliate against a defendant for her speech or petitioning activity. Anti-SLAPP legislation supplements the First Amendment's substantive protections by mitigating litigation costs borne by prevailing defendants. This SLAPP is paradigmatic in that it targets speech at the heart of the First Amendment—speech about the conduct of public officials. In a more systematic fashion than the plaintiff's lawsuit, the loophole in anti-SLAPP protection established by the lower court will chill this form of speech, by sending the message that protected criticism of political candidates carries a financial penalty. Anti-SLAPP laws are motivated by the Constitutional principle expressed by Justice Brennan in Dombrowski v. Pfister, that "[t]he chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure." 380 U.S. 479, 487 (1965). In Dombrowski, the Supreme Court enjoined the prosecution of a civil rights organization under two vaguely-worded Louisiana anti-subversive statutes that had been used by government officials to harass civil rights activists through arrests, seizures of property, and threats of prosecution. Id. at 488-489, 492. The government officials who utilized these statutes to intimidate opponents of the Jim Crow-era status quo had no intention of securing convictions and generally failed to do so; their aim was rather to silence their critics. Likewise, the plaintiff is surely aware that under New York Times Co. v. 2 Exhibit 3 Page 242 of 258 Sullivan, 376 U.S. 254 (1964), defamation suits by public officials have minimal prospects of success on the merits. But without anti-SLAPP protection, such a lawsuit can succeed in punishing and deterring protected speech. Indeed, frivolous defamation lawsuits by public officials and public figures are costly and not uncommon. See Zachary N. Zaharoff, Defaming the Prince:• Why the Media is Entitled to Immunity from a Presidential Defamation Suit, 27 Kan. J.L. & Pub. Pol'y 48, 57-58 (2017) (Listing post-Sullivan defamation suits brought by public figures in which defendants prevailed only after spending millions of dollars in legal fees). As Justice Marshall noted in his dissent in Herbert v. Lando, the discovery process in particular provides an effective avenue for defamation plaintiffs to impose costs on their adversaries. Herbert v. Lando, 441 U.S. 153, 204 (1979) (Marshall, T., dissenting) ("[L]itigants have on occasion transformed Fed. Rule Civ. Proc. 26 devices into tactics of attrition. The possibility of such abuse is enhanced in libel litigation, for many self-perceived victims of defamation are animated by something more than a rational calculus of their chances of recovery."). These costs, Marshall noted, are borne not just by the defendant, but by society as a whole, as a result of self-censorship by potential defendants. Id. at 205. The Court in Dombrowski held not only that prosecutions under the Louisiana statutes at issue generated a chilling effect, but that the mere existence of 3 Exhibit 3 Page 243 of 258 the authorizing provisions produced such a chilling effect. See 380 U.S. at 494. Analogously, not only does the present legal action imperil the First Amendment, but so does the legal norm established by the lower court. Creating this loophole in anti-SLAPP protection will communicate to future critics of political candidates that there are tangible consequences even to well-researched reporting during a campaign season. The lower court's ruling also would undermine the defamation regime established by Sullivan. Sullivan applied a more exacting standard of defamation liability to claims by public officials, by requiring actual malice. 376 U.S. at 283. In doing so, the Court deferred to the United States' tradition of protecting "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Id at 270. If criticism of public officials were subjected to standard defamation liability, the Sullivan Court reasoned, "would-be critics of official conduct may be deterred from voicing their c iticism...because of doubt whether it can be proved in court or fear of the expense of having to do so." Id. at 279 (emphasis added). Applying Florida's anti-SLAPP law to electioneering speech would further Sullivan's goal of creating breathing space for political speech, by mitigating litigation costs for prevailing defendants in SLAPPs brought by public officials. We urge the court to decline to adopt an interpretation of Florida's anti- 4 Exhibit 3 Page 244 of 258 SLAPP statute that would create a loophole counter-productive to the law's purpose. Anti-SLAPP protection is a crucial supplement to the First Amendment's substantive protections for political speech. Respectfully submitted on April 15, 2019. GRAYROBINSON, P.A. 333 S.E. Second Avenue, Suite 3200 Miami, Florida 33131 Telephone: (305) 416-6880 Counsel for Amicus Curiae Americans for Prosperity and Public Participation Project /s/ Frank A. Shepherd Frank A. Shepherd, Esq. Florida Bar No. 152620 [email protected] 5 Exhibit 3 Page 245 of 258 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 12th day of April, 2019, I electronically filed the foregoing with the Clerk of the Fourth District of Appeal via the Florida Courts E-Filing Portal System and that a true and correct copy has been served via transmission of Notices of Electronic Filing generated by the ePortal System or by some other authorized manner pursuant to the following Service List: /s/ Frank A. Shepherd, Esq. SERVICE LIST Joseph W. Janssen, III, Esq. Leonard Feuer, Esq. John M. Siracusa, Esq. LEONARD FEUER, P.A. Mark G. Keegan, Esq. 240 10th Street JANSSEN, SIRACUSA & KEEGAN PLLC West Palm Beach, Florida 33401 120 South Olive Avenue, Suite 504 Email: [email protected] West Palm Beach, Florida 33401 Counsel for WPB Residents for Email: [email protected] Integrity in Government, Inc. Email: [email protected] Email: [email protected] Counsel for Respondent William N. Shepherd, Esq. Seth J. Welner, Esq. Jeff Schacknow, Esq. HOLLAND & KNIGHT LLP 222 Lakeview Avenue, Suite 1000 West Palm Beach, FL 33401 Email: [email protected] Email: seth.welner@hklaw corn Email: [email protected] Counsel for Petitioners Cornerstone Solutions Florida, LLC and Pradeep Asnani a/k/a Rick Asnani 6 Exhibit 3 Page 246 of 258 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Amicus Curiae Brief complies with the font requirements set forth in Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure, as it has been prepared in Times New Roman 14-point font. /s/ Frank A. Shepherd 7 Exhibit 3 Page 247 of 258 Exhibit “B” Exhibit “B” Exhibit 3 Page 248 of 258 OFFICE OF THE STATE ATTORNEY FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY DAVID ARONBERG STATE ATTORNEY March 12, 2018 Grand TheW West Palm Beach Commissioner Shanon MATERIO I Complainant Rick ASNANI PCU Case 18PI000008A99: Det. P. Zampini Accusation that West Palm Beach City Commissioner Shanon MATERIO engaged in grand theft from the Federal Government in the form of a H.U.D. I home improvement grant. Additionally, MATERIO is also alleged to have claimed two Homestead Exemption on two different residences in two different counties. Wednesday, March 7th, 2018 Det. Sgt. Boland, ASA Brian Fernandes and I met with complainant Rick ASNANI who provided documents supporting the allegations. During the meeting it was determined th11t the allegation of double Homestead Ex.emption .and the $50,000.00 grand theft from the Federal Government Housing and Urban Development home improYement grant Should be investigated by Fed.era! Investigators (F.B.I.) .and I or Port St. Lucie State Attorney's Office as the residence in question is located in Port St. Lucie. Case is closed as there are no allegation(s) of a crime(s) occurring within Palm Beach County. n::P.-O:ni Palm Beach County State Attorney's Office 15th Judicial Circuit Public Corruption Task Force 401 N. Dixie Hwy. West Palm Beach, FL 33401 Page 1of1 Exhibit 3 Page 249 of 258 OFFICE OF THE STATE ATTORNEY FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY DAVID ARONBERG STA TE ATTORNEY May 25, 2018 NO FILE MEMORANDUM From: Brian L. Fernandes, PCU Assistant State Attorney Case#: 18PI000008A99 RE: Shanon Materio The above referenced case was presented to the Office of the State Attorney for review via complainant Rick Asnani. The complaint was reviewed by Detective Zampini of the State Attorney Public Corruption Task Force and is outlined in the attached report. I agree with Det. Zampini's analysis and ultimate conclusion that there are no allegations of a crime which would have occurred within Palm Beach County. No further action will be taken by this Office and the matter is considered closed. Assistant 401 North Dixie Highway, West Palm Bench, Florida 33401 Phone: (561)355-7100 www.sa15.org ------Exhibit 3 Page 250 of 258 Calhoun, Christine From: Howard Attias Hello Christine, I hope your having a nice day. Attached you will find the missing information that we needed to provide. Please let me know if you have any questions or concerns. Thanks, Howard Attias O~ 954 742 2622 C~ 954 224 9583 Principal - Full Moon Creative LLC www.fullmooncreative.com youtube.com/watch?v=Tkt6xAx‐ZaM Please consider the environment before printing this e-mail This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is confidential, subject to copyright or a trade secret. if you are not the intended recipient you are hereby notified that any dissemination, copying or distribution of this message, or the files associated with this message, is strictly prohibited. If you have received this message in error, please notify us immediately by replying to this message and deleting it from your computer. 1 2018 FLORIDA LIMITED LIABILITY COMPANY ANNUAL REPORT Exhibit 3 FILEDPage 251 of 258 DOCUMENT# L05000012168 Feb 23, 2018 Entity Name: FULL MOON CREATIVE LLC Secretary of State CC6544262367 Current Principal Place of Business: 10001 NW 50TH STREET SUITE 202 SUNRISE, FL 33351 Current Mailing Address: 10001 NW 50TH STREET SUITE 202 SUNRISE, FL 33351 US FEI Number: 34-2039315 Certificate of Status Desired: Yes Name and Address of Current Registered Agent: MOON, DWIGHT D 10281 NW 24TH CT. SUNRISE, FL 33322 US The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both, in the State of Florida. SIGNATURE: Electronic Signature of Registered Agent Date Authorized Person(s) Detail : Title MGRM Title MGRM Name MOON, DWIGHT D Name ATTIAS, HOWARD M Address 10281 NW 24TH CT. Address 8690 NW 24TH ST. City-State-Zip: SUNRISE FL 33322 City-State-Zip: SUNRISE FL 33322 I hereby certify that the information indicated on this report or supplemental report is true and accurate and that my electronic signature shall have the same legal effect as if made under oath; that I am a managing member or manager of the limited liability company or the receiver or trustee empowered to execute this report as required by Chapter 605, Florida Statutes; and that my name appears above, or on an attachment with all other like empowered. SIGNATURE: DWIGHT MOON REGISTERED MANAGER 02/23/2018 Electronic Signature of Signing Authorized Person(s) Detail Date 2017 FLORIDA LIMITED LIABILITY COMPANY ANNUAL REPORT Exhibit 3 FILEDPage 252 of 258 DOCUMENT# L05000012168 Mar 22, 2017 Entity Name: FULL MOON CREATIVE LLC Secretary of State CC0258849339 Current Principal Place of Business: 10791 NW 53 STREET SUITE 102 SUNRISE, FL 33351 Current Mailing Address: 10791 NW 53 STREET SUITE 102 SUNRISE, FL 33351 US FEI Number: 34-2039315 Certificate of Status Desired: No Name and Address of Current Registered Agent: MOON, DWIGHT D 10281 NW 24TH CT. SUNRISE, FL 33322 US The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both, in the State of Florida. SIGNATURE: Electronic Signature of Registered Agent Date Authorized Person(s) Detail : Title MGRM Title MGRM Name MOON, DWIGHT D Name ATTIAS, HOWARD M Address 10281 NW 24TH CT. Address 8690 NW 24TH ST. City-State-Zip: SUNRISE FL 33322 City-State-Zip: SUNRISE FL 33322 I hereby certify that the information indicated on this report or supplemental report is true and accurate and that my electronic signature shall have the same legal effect as if made under oath; that I am a managing member or manager of the limited liability company or the receiver or trustee empowered to execute this report as required by Chapter 605, Florida Statutes; and that my name appears above, or on an attachment with all other like empowered. SIGNATURE: DWIGHT MOON OWNER 03/22/2017 Electronic Signature of Signing Authorized Person(s) Detail Date Exhibit 3 Page 253 of 258 9:18 PM FULL MOON CREATIVE LLC 11/06/19 Profit & Loss Cash Basis November 6, 2017 through November 6, 2019 Nov 6, '17 - Nov 6, 19 Ordinary Income/Expense Income 750,136.82 Cost of Goods Sold 323,373.52 Gross Profit 426,763.30 Expense 349,566.35 Net Ordinary Income 77,196.95 Net Income 77,196.95 Page 1 Exhibit 3 Page 254 of 258 9:23 PM FULL MOON CREATIVE LLC 11/06/19 Profit & Loss Cash Basis November 7, 2018 through November 6, 2019 Nov 7, '18 - Nov 6, 19 Ordinary Income/Expense Income 344,765.91 Cost of Goods Sold 141,250.06 Gross Profit 203,515.85 Expense 196,448.02 Net Ordinary Income 7,067.83 Net Income 7,067.83 Page 1 Exhibit 3 Page 255 of 258 9:33 PM FULL MOON CREATIVE LLC 11/06/19 Balance Sheet Cash Basis As of November 6, 2019 Nov 6, 19 ASSETS Current Assets Checking/Savings 37,738.34 Accounts Receivable 18,988.00 Other Current Assets 37,505.00 Total Current Assets 94,231.34 Fixed Assets 9,784.54 TOTAL ASSETS 104,015.88 LIABILITIES & EQUITY Liabilities Current Liabilities -2,099.78 Long Term Liabilities 2,796.66 Total Liabilities 696.88 Equity 103,319.00 TOTAL LIABILITIES & EQUITY 104,015.88 Page 1 Exhibit 3 Page 256 of 258 9:35 PM FULL MOON CREATIVE LLC 11/06/19 Balance Sheet Cash Basis As of December 31, 2018 Dec 31, 18 ASSETS Current Assets Checking/Savings 16,400.05 Other Current Assets 37,505.00 Total Current Assets 53,905.05 Fixed Assets 3,382.54 TOTAL ASSETS 57,287.59 LIABILITIES & EQUITY Liabilities 9,011.41 Equity 48,276.18 TOTAL LIABILITIES & EQUITY 57,287.59 Page 1 Exhibit 3 Page 257 of 258 9:21 PM FULL MOON CREATIVE LLC 11/06/19 Profit & Loss Cash Basis November 6, 2017 through November 6, 2018 Nov 6, '17 - Nov 6, 18 Ordinary Income/Expense Income 405,502.16 Cost of Goods Sold 182,123.46 Gross Profit 223,378.70 Expense 153,249.58 Net Ordinary Income 70,129.12 Net Income 70,129.12 Page 1 Exhibit 3 Page 258 of 258 Exhibit 4 MEMORANDUM TO: Christine Calhoun, Purchasing Manager FROM: Fernando Amuchastegui, Assistant County Attorney :p� DATE: November 27, 2019 RE: Litigation historyupdate I reviewed the email correspondence {including attachments) regarding Cornerstone Solutions Florida LLC's alleged failure to disclose a material case. I also reviewed the online court docket of the Palm Beach County Clerk of Court regarding this case. The case involving Cornerstone Solutions, i.e. "Sharon Materio, Plaintiff v. WPB Residents for Integrity in Government Inc, Cornerstone Solutions Florida LLC, Pradeep Asnani, Defendants, Circuit Court Case No. 2018CA012422", should have been disclosed by Cornerstone Solutions in response to this solicitation. The standard instructions to vendors clearly set forth the requirements for "material" case disclosure. This requires vendors to list all "material" cases that are filed, pending or resolved against vendor or their principals within three (3) years of the solicitation response. This disclosure is not limited to only those cases filed in Broward County. The aforementioned case remains pending in Palm Beach County Circuit Court. Cornerstone Solutions Florida LLC denies any liability and is actively defending itself in court. Most recently, the Circuit Court entered an Order on November 26, 2019, granting Defendants' joint motion for reconsideration of a March 6, 2019, Order on Anti-Slapp Motions. \r