From the Legal Hotline (877-NEWS-LAW)

Defamation complaints, Sunshine Law infractions, and more in today’s Legal Hotline Recap.

Q. I am a reporter at a smaller circulation paper. I recently received a defamation complaint from a pro se prisoner, along with the paper (which does not have insurance). In the complaint, the inmate names the paper, me, the sheriff’s office, and the sheriff as defendants. He goes on to seek a monetary award “collectively” from the paper and me, and “collectively” from the sheriff’s office and the sheriff. Still, I don’t feel free to ignore it. I am seeking to confirm that (1) the newspaper is responding in a timely manner and (2) that I do not need to send any response.

A. I would advise you to coordinate with the paper so that an attorney makes some form of appearance on the behalf of the paper and you and to respond in some fashion to the “complaint.” Even though it’s coming from a pro se prisoner, I agree it’s a good idea not to completely ignore it and as mentioned have an attorney make a written appearance. Communicate with the paper so that you are included in any response.

Q. We are preparing an editorial on a local Sunshine Law infraction and would like to include some statistics. Can you provide, or point us in the right direction, to obtain some stats? Ideally, we would like to report how many complaints were filed, how many were actually investigated, how many resulted in a non-criminal infraction and how many in a criminal charge in the most recently available timeframe. (Last year and to-date? Average fine and/or other penalty?).

A. The First Amendment Foundation compiles this type of information and can provide you with stats for your editorial. I will forward your request on to Pamela Marsh, FAF Executive Director, and Virginia Hamrick, FAF Staff Attorney, both of whom have a wide range of knowledge in this area.

Q. What options do I have where other publications like shoppers are using our stands/boxes without authorization?

A. Here are responses I received from three papers, all of which I think could be potentially helpful.

  1. We have our attorney send the publisher a cease and desist letter and that usually worka. And, of course my contractors would remove and dispose of the squatting publication.
  2. Our approach is to remove the publications from our racks, store them at our office, and call the offending publication to come get them and to not do it again. That usually gets their attention. It can be more difficult if it is in a paid OTC location. When that happens, we have our staffers just move the offending pubs off of our rack and place them in some other place inside the store. Usually the stores assign (or sell) the locations and they don’t suffer fools.
  3. We allow a larger daily paper to use our racks for their Sunday edition, but ask that they confine them to the lower portion. As for shoppers, we told vendors not to allow them in our racks, and the only one remaining quit publishing last spring so it’s not a problem anymore. The problem comes when store owners want to consolidate all publications into a single rack to save space. If they provide the rack, we’ll use that; if it’s our rack, only paid allowed. Actually, we have more of a problem convincing store owners to keep racks in plain site, preferably close to point-of-purchase space. In the past, when a store insists on placing racks out of sight, we pull the racks out and will return only if they agree to keep them clearly visible . Sometimes that works, sometimes not. As for coin boxes outside, we pulled the only two we had — too much pilferage.

Q. Our community development agency director sent an email last week several hours past our deadline for a regular meeting notice. We have not changed our ad deadline for years and the director knows when the ads have to be placed. We always try to find space for legal ads that are received past our deadlines but we could not fit it in the paper last. Instead of rescheduling the meeting, the director has posted a meeting notice outside of city hall. I thought meetings could only be posted and held this way under emergencies or other extenuating circumstances. Do you think this is proper notice? The meeting is scheduled to take place tonight after the city commission meeting.

A. Hearings on community redevelopment plans (including proposed modifications) must be noticed by publication in a newspaper; posting alone is not sufficient. 163.36, 163.361. If a citizen complains, they may have to re-notice the hearing to cure the defect.

Q. Are there any laws in Florida regarding newspapers paying commissions to funeral homes for selling obits or any other related prohibitions?

A. Section 497.152 contains the disciplinary grounds for funeral homes/burial services. There does not seem to be any such prohibition on a funeral home receiving commissions for selling newspaper obituaries. Indeed, to the extent “commissions” are similar to “rebates,” the law makes it clear that a funeral home does not have to disclose a “rebate that may accrue to a [funeral home] subsequent to making a cash advance [for services such as for obits].” However, note that the law does clearly state that funeral homes selling obits on behalf of the paper to a customer cannot misrepresent that amount.