UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO: 07-80050-Civ-DTKH/JMH MAR-A-LAGO, LLC, LC, Plaintiff, vs. TOWN OF PALM BEACH, a Florida municipal corporation, Defendant. / THIRD AMENDED COMPLAINT- JURY TRIAL DEMANDED Plaintiff, MAR-A-LAGO, LL. .C. (hereinafter the “Plaintiff” or“Club”), through counsel, sues Defendant, TOWN OF PALM BEACH (hereinafter the “Town”), and states: INTRODUCTION 1. By this action, Plaintiff challenges several Town ordinances which “unconstitutionally restrict its ability to fly a large American flag at Mar-A-Lago butallow the ‘Town itself and other government entities to fly flags of s lar or greater size. The actions of the Towna so constitute selective enforcement of Town ordinances against Mar-A-Lago and its owner, Donald J. Trump; the imposition of excessive fines; and an unconstitutional restriction on interstate commerce under the Town’s “town serving” ordinance whichdiscriminates against nonresidents by requiring that more than 50% of Mar-A-Lago Club members be townspeople, BASIS FOR THE ACTION 2. Plaintiff’ seeks three kinds of relief: (1) damages to compensate it for the unconstitutional actions of the Town; (2)a declaration that Palm Beach Code § § 134-2372, 134-796 and 134-793(a)(10) (hereinafter “sign/flag and flagpole ordinances”) and Palm Beach Code § 134.229(12) (hereinafter “town serving ordinance”) are unconstitutional on their face and as applied to Plaintiff; and (3) an injunction against future selective enforcement against Plaintiff, including issuance of code violation citations to Plaintiffunder the challenged ordinances. JURISDICTION 3. This case was originally filed in state court alleging both federal and state claims, but the Town properly removed it to this Court pursuant to 28 U.S.C. § 1431. This Court has supplemental jurisdiction over the state claims pursuant to 28 U.S.C. §1367. 4. This Court has jurisdiction pursuant to 28 U.S.C. § 1343, providing for jurisdiction without regard to the amount in controversy in cases seeking redress from alleged infringement of civil rights; pursuant to 28 U.S.C. § 1331, providing for jurisdiction in cases arising under the Constitution and laws of the United States; and pursuant to 28 U.S.C. $§ 2201 and 2202, providing for declaratory and injunctive relief. This case arisesunder the First, Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983, which creates a federal cause of action for violations of these civil rights. PARTIES 5. Atall material times, the Club was and remains a limited liability company authorized to do business in the State of Florida, which has its principal place of business at 1100 South Ocean Boulevard, in Palm Beach, Florida, 6 Atal material times, Donald J. Trump has owned the Club, and it has and continues to operate as a private social club in the Town of Palm Beach. 7. The Town is a Florida municipal corporation. 8. Atall times material hereto the Town and its officials acted under color of state law and pursuant to Town customs, practices and policies. GENERAL ALLEGATIONS A. Mar-A-Lago Club. 9. Mar-A-Lago is a private social club located on a unique and beautiful estate in the Town of Palm Beach. It was formerly owned by Marjorie Merriweather Post and E.P. Hutton and is now owned by Donald J. Trump. 10. Recently, Mar-A-Lago erected a large flagpole as a necessary vehicle from which to fly an American flag. L1. Mar-A-Lago, given its unique membership and historical nondiscriminatory policy, desires to open its membership to persons, and from all over the nation and world,However, it is prohibited from doing so because of the Town’s “town serving” ordinance, which is part of the Town’s zoning ordinances. 12. Before Mar-A-Lago became a private social club, it was a private residence of Donald J. Trump, and was and remains situated within the RAA-Large Estate Residential and RA-Estate Residential zoning districts. 13. Atal material times, pursuant to the Town’s zoning code, private social clubs have been, and remain, allowable Special Exception uses for land zoned RAA-Large Estate Residential 14. When the Town approved a Special Exception use for Mar-A-Lago as a private social club, it did so on the condition that Donald J. Trump, individually and on behalf of the Club, enter into a Declaration of Use Agreement with the Town, (Exhibit A: amendments thereto not attached). 5. No other private social club in Palm Beach has ever been required to enter into a Declaration of Use Agreement with the Town as a condition of being permitted to operate. 16. Inthe Decla n of Use Agreement, which the Town required Donald J. Trump to execute in order to be permitted to operate Mar-A-Lago as a private social club, the Town specifically acknowledged and agreed that the Mar-A-Lago property is unique, and that there was no other property like it in Palm Beach, 17, The Club's property is large (approximately 20 acres), and spans from theIntracoastal waterway on the west, to the Atlantic Ocean on the cast, and is horticulturally, architecturally, and aesthetically spectacular. A portion of the main mansion is more than 75” in height. It is both the largest and tallest estate in Palm Beach. B. The Flag. 18, The size of the Club and its property demand that any flag flown on the premises be large in order to be viewed and to communicate the Club’s and Mr. Trump’s commitment to the flag and the nation, 19, Any reduction in the size of the flag or its flagpole would have the effect of preventing or substantially burdening, impairing or interfering with the free speech and expression of Plaintiff, Donald J. Trump, and the members of the Club. 20. The flag and flagpole are similar in size and proportion to many flags and flagpoles which fly over some of the great buildings and monuments in Washington, D.C., including the White House (and Mar-A-Lago is larger in size than the White House). 21, The flag and the flagpole are similar in scale to flags and flagpoles which fly at other properties in the Town, none of which have been cited for violating the Town’s sign/flag and flagpole ordinances and none of which have been the subject of the extraordinary stacking of excessive fines as the defendant has undertaken here, The Breakers Hotel flies the American flag, and a Breakers’ hotel flag, 150 feet higher than the flag being flown at Mar-A-Lago. 22. On October 27, 2006, The Town cited the Club for violating the provisions ofits Code of Ordinances, to wit: 1) flagpole height (Town Code Chapter 134, Section 134-796 (a); 2) flagpole location (Town Code Sections 134-791 (b)(3) and 134-793 (5)(7)(9)); 3) failure to get Certificate of Appropriateness from the Landmark Preservation Commission (Town Code Chapter 54, Section 54-71 (a)); 4) failure to get a building permit for the flagpole (Town Code Chapter 18, Section 18-241); 5) violation of the Declaration of Use, requiring a Certificate of Appropriateness; and warned Plaintiff that the flag itself appears to be in violation of the size requirements of the Code, and reserving jurisdiction to proceed against Plaintiff once the flagpole controversy has been resolved. 23. Flags are governed by Town zoning ordinances regulating signs, Palm Beach Code § 134-800, (hereinafter “Code”) entitled “Signs,” which provides the sign regulations which may be applicable in the R-AA large estate residential district, are contained in Article X1 of that Chapter. 24. Article XI, also entitled “Signs,” has two sections applicable to this controversy, Code §§ 134-2371 and 134-2372. Sec jon 134-2371 provides: “Signs may be erected and maintained only when in compliance with the provisions of this article and other applicable town ordinances.” 25. Section 134-2372 provides, in pertinent part: (2) No sign other than an official traffic sign shall be ereoted within the right- of-way lines of any street or public way, nor shall any sign or banner be hung, on, from, or beneath any canopy or marques (4) A permit shall not be required for the erection, alteration, or maintenance of nameplates and identification of sale or rental signs for single-family dwellings, permitted in an R district or for temporary political signs . 6(5) A permit shall be required for the erection, alteration, reconstruction, painting or producing by artificial light of any other sign within the town... (8) No banner signs of any kind, including, but not limited to, those produced on cloth, paper, or fabric; shall be permitted. Banners shall not include flags which identify governmental entities, Flags, limited to three per property, that are permitted, shall be no larger than four feet by six feet except when displayed by governmental agencies. Because a flag is typically hung and flown from a flagpole, §§ 134-796 and 134-793(a)(10) become relevant. Section 134-796 provides, in pertinent part: 28. “..Flag poles... may be erected to a height not to exceed 40 per cent above the building height limit for this district...” Section 134-793(a)(10) provides, in pertinent part: Height and overall height. A. The maximum building height is 30 feet, not to exceed two stories. B. Maximum overall height of a building shall be the maximum allowable building height, as defined in Section 134-2, plus five feet for a flat roof and ten feet for all other roof styles...” Code §§ 134-796 and 134-793(a)(10), read together, and depending upon interpretation, only allow a flagpole to bea maximum of 42 or 56 feet tal irrespective of the dimensions of the Jand on which it is located, the actual building height or size, or the size of the flag that should be permitted to be flown on the property, taking into consideration the size of the land. Forcing Plaintiff'to comply with both the flagpole height restrictions and the flagpole location restrictions in Code §§ 134-791 (b)(3) and 134-793 (5)(7\(9), would dramatically reduce, if not eliminate, the public's ability to see the flag inside the walls and vegetation surrounding Mar-A-Lago,29. The Town's permitting schemes contain no narrow and precise standards to control the discretion of the building officials, town council, or Landmark Preservation Commission, which are the permitting authorities. Ordinance 18-867 provides: When in the opinion of the building official the town council should pass upon the propriety, form or type of any sign, awning or marquee, the building official may require the written approval of the town council for the erection of such sign, awning of marquee before the permit will be issued. ‘The permitting standards for the Landmark Preservation Commission are similarly lacking in precision. Ordinance Section 54-71, which applies to site planning features such as flagpoles and signs such as flags, provides that “[nJo landmark nor any building or site planning feature, including but not limited to landscaping, garden walls, pools, fountains, ete., on a landmark site or within an historic district shall be erected, altered, restored, moved or demolished until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to and approved by the [Landmark Preservation Commission].” Ordinance Section 54-121 in turn provides that “[iJn passing upon an application for a certificate of appropriateness, the commission shall consider the criteria in this division.” Those criteria include (b) Existing rhythm created by existing building masses and space between them should be preserved. (©) The landscape plan should be sensitive to the individual building and its occupants and needs and should be visually corapatible with the buildings and environment with which it is visually related. (e) Architectural details should be incorporated as necessary to relate the new with the old and to preserve and enhance the inherent architectural characteristics of the area.”Ordinance Section 54-122. They also provide: (@) «that the commission may consider the original design of the building and the buildings visually related to it and disregard alterations subsequently made thereto. (b) Exterior alterations shall not affect the architectural quality or historical character of the building. Ordinance Section 54-123. For signs located or plainly visible from out-of-doors, the scale, design, materials, style and patterns should be compatible with the buildings and environment with which they are visually related. Ordinance Section 54-124. (Plaintiff did not apply for any permit for the flagpole because, among other reasons, he was advised by a high Town official that to do so would have been futile.) 30. The Town required the Club to appear at a hearing before its Code Enforcement Board on December 21, 2006, and at that time found the Club in violation of five of the Town’s Ordinances. While the Code forcement Board usually, if not always, imposes fines of only $250.00 per day per property, regardless of the number of violations, it later imposed the maximum fine of $1,250.00 per day, or more than $450,000.00 per year, for these alleged violations. The amount of this fine was arrived at by stacking what the Town considered to be several violations for the same conduct, On information and belief, such a fine has never been levied before, C. The “Town Serving” Ordinance. 31. Mar-A-Lago is unique as a private social club in Palm Beach because it is the only private social club in the town whose membership policies have never discriminated onthe basis of race, color, religion, sex, national origin, or on any other basis. Mar-A-Lago, given its unique membership and nondiscriminatory policy, desires to open its membership to persons from all walks of life, and from all over the nation and world. However, it is prohibited from doing so because of the Town’s “town serving” ordinance, which is part of the Town's zoning ordinances. 32. Atall material times, the Town has had in force and effect, ordinances, which will be referred to herein as “town serving” ordinances, which require establishments doing business in the Town to affirm and submit eviderce, each year, satisfactory to the Town Council, that not less than $0% of the customers of the establishment are “townspersons.” 33. According to the 2000 census, the Town of Palm Beach is 96 per cent white, and less than 3 per cent African-American. 34. In order for Donald J. Trump to obtain the Town Council's approval to use Mar-A-Lago as a private social club, and as a condition for granting the special exception to do so, the code mandated that the proposed use of Mar-A-Lago would not attract the principal portion of its customers/clients (in this case members and their guests), from off- island locations, 35. ‘The code mandated that Donald J. Trump, on behalf of Mar-A-Lago, submit evidence satisfactory to the town council that not less than 50 per cent of the customiers of the proposed use be “townspersons.” Code § 134.229(12) provides:The requirements for granting a special exception use under this chapter are as follows: (12) The proposed use will not attract the principal portion of its customers/clients from off-island locations. The applicant shall submit evidence satisfactory to the town council that not less than 50 percent of the customers of the proposed use will be townpersons. Evidence submitted in support of this contention shall include credible data or information suitable for review by the town to determine its credibility and the appropriateness of the applicant's conclusions. The submittal shall include a description of the types of information used and the methodology employed to arrive at the conclusion, Information used shall include, but shall not be limited to, lists of, customer/client addresses or certification thereof by an independent certified public accountant approved by the town, market studies prepared by independent professional firms, or data from similar operations under the control of the applicant. (Emphasis added.) 36. Further, as stated previously, the Town also mandated that Donald J. Trump execute a Declaration of Use Agreement as a condition of granting the special exception for Mar-A-Lago to be utilized as a private social club, And contained within the Declaration of Use Agreement was a similar “town serving” requirement, that is, it required that at least 50 per cent of the members of the Club consist of individuals who maintained residences in the Town of Palm Beach or had places of employment in the Town of Palm Beach, Article VII, Club Membership Limitations, 37. Code § 134-2 define Townpersons [as] . . . all full-time and seasonal residents as well as visitors staying at accommodations and employees work.” Allegations regarding Injunctive and Declaratory Relief.38. Unless restrained by this Court, Plaintiff will continue to be subjected to harassment, selective enforcement and fines for the exercise of its First Amendment right of expression by flying an American flag on a flagpole of sufficient size and strength to be viewed by the public, and will continue to be burdened with the “town serving” requirement. Plaintiff has been, and will continue to be irreparably harmed by the continued harassment and punishment and denial of his constitutional rights. 39. Plaintiff has no adequate remedy at law because the continuing denial of Plaintiff"s constitutional rights cannot be remedied through legal relief. 40, Plaintiff is in doubt about its rights, status or other equitable or legal relations, and seeks a declaration of rights, status or other equitable or legal relations thereunder. 41. There is a bonafide, actual present need for the declaration. 42, The declaration deals with a present, ascertainable statement of facts or present controversy. 43. Some immunity, power, privilege or right of the complaining parties is dependent upon the facts or the law applicable to the facts. 44, Plaintiffhas an actual present and antagonistic interest in the subject matter of the challenged ordinances, either in law or fact 45. The antagonistic interests are all before the court by proper process. 1246. The relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded by curiosity 47. Ifa declaratory judgment is not granted, the rights of parties may be seriously affected, and one or more parties may be harmed and continue to be harmed. COUNT I- VIOLATION OF THE FIRST AMENDMENT 48. The Plaintiff realleges all of the allegations contained within paragraphs | - 47 as if specifically set forth herein 49. Flags are governed by Town zoning ordinances regulating signs and the Town's permitting schemes 50. Code § 134-2372(8) is a content-based restriction on free speech and freedom of expression, as it permits banners identifying governmental entities, albeit restricting their size when flown by non-governmental persons or entities, but forbids all other banners. Further, it restricts free speech and freedom of expression by citizens, as it limits the size of governmental flags non-governmental persons or entities are permitted to fly, while exempting itself (the Town) from any size limitations in the governmental flags it wants to fly. Thus, under this ordinance, the Town could fly the flag the plaintiff wants to fly at Mar- A-Lago with impunity, but the plaintiff cannot. Sign code exemptions that pick and choose the speakers entitled to preferential treatment are no less content based than those that select, among subjects or messages. 51. Further, these ordinances are being selectively applied to the Club in violationof the First Amendment because its owner, Donald J. Trump, has been very vocal over the years in criticizing many of the Town’s policies, as well as some of the Town’s vague, ambiguous, arbitrary and capricious ordinances, including the ordinances dealing with flags and flagpoles. On information and belief, flags, and in many cases, flagpoles, at the following locations in the Town are in violation of one or more of the challenged sign/flag or flagpole ordinances, but have not been cited for violations or threatened with enforcement: moom> nvRo: ezErnAro-zo 191 Bradley Place 165 North County Road 1170 South Ocean Boulevard 1 South County Road 185 Woodbridge Road 339 Worth Avenue Comer of Seaview Avenue and Cocoanut Row 95 County Road (Comer of Main Street and County Road) 300 Chapel Hill Road 760 North Ocean Boulevard 255 South County Road 2185 South Ocean Boulevard 2870 South Ocean Boulevard 300 North County Road (Corner of Wells and North County Road) 456 South Ocean Boulevard 2600 South Ocean Boulevard 2860 South Ocean Boulevard 2500 South Ocean Boulevard 180 Sunrise Avenue Corner of Royal Palm Way and South Ocean Boulevard. Ordinance 18-867 provides: Approval of permits by town council 4When in the opinion of the building official the town council should pass upon the propriety, form or type of any sign, awning or marquee, the building official may require the written approval of the town council for the erection of such sign, awning ‘or marquee before the permit will be issued. This ordinance is also unconstitutional as it fails to set objective criteria or impose time limits for permitting decisions. 53. Code §§ 134-2372, 134-796, 134-793(a)(10), 54-71, 54-121, 54-122, 54-123, 54-124, 18-241, facially and applied to Plaintiff violate the First Amendment, Code §§ 134- 791 (b)(3) and 134-793 (5(7)(9) applied to Plaintiff violate the First Amendment, and Code § 18-867 facially violates the First Amendment. COUNT II- VIOLATION OF 14" AMENDMENT (Equal Protection) 54. Plaintiff realleges all of the allegations contained within paragraphs 1-47 and 50-51 as if specifically set forth herein 55. Defendant’s conduct in punishing Plaintiff for protected conduct while other residents and property owners were and continue to be allowed to engage in similar activity constitutes selective enforcement, gross abuse of governmental power, invidious discrimination, fundamentally unfair procedures, and arbitrary, capricious, and discriminatory conduct 56. Defendant’s conduct deprived Plaintiff of equal protection protected by the Fourteenth Amendment to the United States Constitution, for which 42 U.S.C. § 1983 provides a remedy.COUNT III- VIOLATION OF THE EIGHTH AMENDMENT 57. Plaintiff’ realleges all of the allegations contained within paragraphs | - 47 as, iff specifically set forth herein. 58. ‘The fines assessed against Plaintiff are excessive and violate the Eighth Amendment to the United States Constitution. COUNT IV- VIOLATION OF THE COMMERCE CLAUSE 59, Plaintiff realleges all of the allegations contained within paragraphs 1 - 44 as if specifically set forth herein. 60. ‘The town serving ordinance, and the portions of the di ration of use based thereon, violate Art. I, Sec. 3, cl.3 of the United States Constitution. COUNT V- DECLARATORY AND SUPPLEMENTAL RELIEF UNDER SECTION 86.011, FLORIDA STATUTES FOR VIOLATING ARTICLE I, SEC. 4 OF THE FLORIDA CONSTITUTION 61. Plaintiff realleges all of the allegations contained within paragraphs 1 - 47 and 50-5 as if specifically set forth herein. 62. ‘This Count is brought pursuant to Section 86.011, Fla. Stat 63. Code §§ 134-2372, 134-796 and 134-793(a)(10) violate Article I, Sec. 4 of the Florida Constitution, and should be declared unconstitutional facially and as applied to Plaintiff with supplemental relief in the form of damages and injunctive relief. COUNT VI- DECLARATORY AND SUPPLEMENTAL RELIEF UNDER SECTION 86.011, FLORIDA STATUTES FOR VIOLATING ARTICLE I, SEC. 2 OF THE FLORIDA CONSTITUTION 64. Plaintiff realleges all of the allegations contained within paragraphs 1 - 47 and 50-51 as if specifically set forth herein.65. This Count is brought pursuant to Section 86.011, Fla, Stat 66. Code §§ 134-2372, 134-796 and 134-793(a)(10) violate Article I, Sec. 2 of the Plorida Constitution, and should be declared unconstitutional as applied to Plaintiff with supplemental relief in the form of damages and injunctive relief. 67. ‘The selective enforcement of Plaintiff violates Article I, Sec, 2 of the Florida Constitution, and should be declared unconstitutional as applied to Plaintiff with supplemental relief in the form of damages and injunctive relief. COUNT VII- DECLARATORY AND SUPPLEMENTAL RELIEF UNDER SECTION 86.011, FLORIDA STATUTES FOR VIOLATING ARTICLE I, SEC. 17 OF THE FLORIDA CONSTITUTION 68. Plaintiff realleges all of the allegations contained within paragraphs 1 - 47 and 65 as if specifically set forth herein. 69. ‘The fines assessed against Plaintiff are excessive and violate Article I, Sec. 17 of the Florida Constitution. 70. The fines assessed against Plaintiff should be declared unconstitutional as applied to Plaintiff with supplemental relief in the form of damages and injunctive relief. DEMAND FOR JURY TRIAL 71. Plaintiff demands trial by jury on all issues so triable WHEREFORE, Plaintiff respectfully requests this Court A. entera declaratory judgment that Code §§ 134-2372, 134-796 and 134- 793(a)(10) facially and as applied to Plaintiff violate the First Amendment; B. enter a declaratory judgment that these ordinances are being selectively applied to the Club in violation of the First and Fourteenth Amendments because its owner, 17Donald J. ‘Trump, has been vocal over the years in criticizing many of the Town’s policies, as well as some of the Town’s vague, ambiguous, arbitrary and capricious ordinances, including the ordinances dealing with flags and flagpoles; C. enter a declaratory judgment that the town serving ordinance, and the portions of the declaration of use based thereon, violate Art. I, Sec. 3, cl.3 of the United States Constitution; D. enter a declaratory judgment that the fines imposed on Plaintiff are excessive and violate the Fighth Amendment to the United States Constitution; enter a declaratory judgment that Code §§ 134-2372, 134-796 and 134- 793(a)(10) facial y and applied to Plaintiff violate violate Article I, Sec. 4 of the Florida Constitution, and award supplemental relief in the form of damages; E. _ entera declaratory judgment that these ordinances are being selectively applied to the Club in violation of Article I, Sec. 2 and 4 of the Florida Constitution because its owner, Donald J. Trump, has been very vocal over the years in criticizing many of the ‘Town's policies, as well as some of the Town’s vague, ambiguous, arbitrary and capricious ordinances, including the ordinances dealing with flags and flagpoles and award supplemental relief in the form of damages; F. _ entera prelimina ry and permanent injunction enjoining defendant from enforcing or attempting to enforce the challenged ordinances or otherwise harassing Plaintiff; G. award Plaintiff compensatory damages against defendant on the federal claims;H. award Plaintiff the costs and expenses of this action together with reasonable attorneys’ fees pursuant to 42 U.S.C.§ 1988; and I. retain jurisdiction of this case and grant Plaintiff such other and further relief as may, in the discretion of this Court, be just and proper. Respectfully submitted, James K. Greer, Es JAMES K, GREEN, P.A. Suite 1650, Esperante” 222 Lakeview Ave. West Palm Beach, FL 33401 561.659.2029 361.655.1357 (facsimile) jameskgreen@bellsouth.net Florida Bar No: 229466 Bruce Rogow, Esq. BRUCE ROGOW, P.A 500 E. Broward Blvd., Ste. 1930 Fort Lauderdale Florida 33394 954.767.8909 954.764.1530 (facsimile) brogow@rogowlaw.com Florida Bar No: 067999 COUNSEL FOR PLAINTIFF CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on March 15 , 2007, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: John A. DeVault, IIl and Courtney Kneece Grimm, Esq.. BEDELL DITTMAR DeVAULT PILLANS & COXE, 101 E. Adams Street, 19H. award Plaintiff the co: s and expenses of this action together with reasonable attorneys” fees pursuant to 42 U.S.C.§ 1988; and 1. retain jurisdiction of this c and grant Plaintiff such other and further relief as may, in the cretion of this Court, be just and proper. Reppectflly submitted, y Ihines K. Green, Esq. JAMES K. GREEN, P.A. juite 1650, Esperante? 22 Lakeview Ave. est Palm Beach, FL 33401 361.659.2029 361.655.1357 (facsimile) jamesker south.r Florida Bar No: 229466 Bruce Rogow, Esq. BRUCE ROGOW, P.A 300 E, Broward Bivd., Ste. 1930 Fort Lauderdale Florida 33394 954.767.8909 954.764.1530 (facsimile) brogow@rogowlaw.com Florida Bar No: 067999 COUNSEL FOR PLAINTIFF CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 16, 2007, 1 electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: John A. DeVault, III and Courtney Kneece Grimm, Esq., BEDELL DITTMAR DeVAULT PILLANS & COXE, 101 E. Adams Street,Jacksonville, FL 32202; and John Cater Randolph, Esq., JONES FOSTER JOHNSTON & STUBBS, 505 S. Flagler Dr., Suite 1100, P.O, Box 3475, West Palm Beach, FL 33402, Attorneys for Defendant. 20