One Email From Serial Litigant Shuts Down Flagler Beach’s Video Access to Public Meetings

For years, the Flagler Beach City Commission has made gavel-to-gavel videos of its meetings available to the public, first through public-access cable television, then through live video-streaming online. The city has never gotten any complaints from viewers, including deaf or blind viewers, about access–until two weeks ago.

On Oct. 17, Eddie Sierra, a deaf resident of South Florida, sent a five-line email to Flagler Beach Mayor Linda Provencher. “I am in northern Florida frequently for business,” he wrote. “I was at your website and none of the videos including Commission videos on your website has closed captions [sic.]. Without closed captions, many people who are deaf or hard of hearing cannot understand or use your recordings, videos or live streaming services. Would you please caption your video content?”

Flagler Beach lucked out: it just got an email, not a lawsuit. Sierra has become notorious among local governments, especially in south Florida, for filing lawsuit over the same issue–nearly three dozen at least count, including a federal lawsuit that was decided against him in federal district court, then reversed in his favor just last month by the 11th Circuit Court of Appeals. That decision originated with a lawsuit he filed against Hallandale Beach. It didn’t say that local governments must provide close-captioning in their videos, but that Sierra didn’t have to file his complaints through the Federal Communications Commission first before filing a lawsuit against the city under the Americans with Disabilities Act. So Hallandale Beach still has to answer to that action.

Last spring, Sierra teamed up with the National Association Of The Deaf to file a federal lawsuit against the state, the Legislature, and the Florida State University Board Of Trustees over all of their video streaming not providing close-captioning.

Flagler Beach isn’t taking chances. It took down all its archived videos and eliminated access to its video page. It did not provide a live webcast of its meeting last week. It has no plans to do so in the immediate future, though City Clerk Penny Overstreet is exploring options and working on the assumption that she will find a solution, and will be able to restore access to meeting videos that also provide close-captioning.

To get there, she may need only look as far as Palm Coast and county government: both made the jump to streaming meetings through YouTube. While the live meetings don’t provide immediate close-captioning, archived meetings do. A Palm Coast spokesperson said today the city has not gotten an email or the threat of a lawsuit from Sierra. The county’s spokesperson didn’t respond to a similar question, but Overstreet during last weeks commission meeting was in contact with Jarrod Shupe, the county’s innovation technology director, who told her that the county’s webcasting through YouTube resolved any potential issue with close-captioning.

“I guess I’m going to find out about YouTube because it’s free,” Overstreet said.

Local governments are not required to provide video or audio streaming or recordings of meetings. They’re not even required to record them in any way, other than by keeping minutes. But since the advent of public-access cable channels decades ago, it became a norm, from C-Span’s broadcasting of all U.S. Senate and House sessions down to some of the most modest school boards and other local governments, to provide either live or taped broadcasts of meetings. Palm Coast provides audio access to all of its advisory panels as well, including code enforcement, the planning board or animal control hearings.

That may have been a golden age of government access by way of television or the web. Now, in the name of ensuring access, lawsuits like Sierra’s are ending it in some cases, as cities are fearful of facing costly lawsuits and even more fearful of having to pay large sums of money to ensure close-captioning.

“I’ve heard that some of these suits he’s brought, he’s lost–he’s lost more than he’s won,” Flagler Beach Commission Chairman Rick Belhumeur said at last week’s meeting as he addressed the city’s attorney “It’s only because people bend over and settle, is my understanding. I realize it’s early on, but maybe you can find out what Bunnell ended up doing.”

Bunnell government just last July came close to ending the streaming of its meetings over the same fears. But the city commission’s attorney advised against it: ““My legal opinion remains the same: I would not advise that the City of Bunnell stop live streaming at the present time just because it is not currently closed captioning the streams,” Wade Vose, Bunnell’s attorney, wrote commissioners. “However, because at least some of the south Florida governments sued by this plaintiff have found it simpler to settle rather than litigate (even though on the law they should likely win), I would recommend that City staff look into pricing for such services, just so the City Commission is not making future decisions relating to this matter in a vacuum. In addition, while the decision to live-stream workshops and other special meetings is a policy decision between City staff and the City Commission, I would advise that I don’t believe that the City is exposed to any additional hypothetical liability by live-streaming all, rather than just some, of its meetings/workshops.”

Bunnell not only continued live-steaming its meetings. It added workshops to the streaming system as well.

Flagler Beach’s attorney, Drew Smith, is advising a different direction. “Where everything is going now, there are federal guidelines and regulations and rules,” Smith said at last week’s commission meeting. “They may well fall under a threshold that exists, we might well fall under a threshold that exists, the point of all this though is those thresholds are going away.”

Smith said there’s no requirement to provide immediate, live close-captioning, but that once the video is provided, close-captioning should be added: that’s what YouTube does, thus covering a local government’s requirements without incurring additional costs. The prices may not be “exorbitant,” as Commissioner Eric Cooley put it last week–not if cities ignore vendors who, according to Vose, are going around cities in tandem with Sierra-like lawsuits to convince them to sign contracts to provide close-captioning, when the same service is available for free.

But the accommodation landscape is altering. “What was not a reasonable accommodation five years ago is now a reasonable accommodation,” Smith said. “What is a reasonable accommodation has shifted dramatically within the last 10 years.”

Overstreet, Flagler Beach’s city clerk, was optimistic that streamed meetings would return one way or another, once she has studied the next approach.