Complaint seeks more than $50,000 in damages and a jury trial
Editor’s note: This article was updated near midday on Feb. 16 to correct information about Commissioner Debbie Trice.
On Feb. 12, the Tampa attorney representing Sarasota resident Kelly Franklin formally filed a complaint in the 12th Judicial Circuit Court, alleging that Sarasota City Commissioner Kyle Battie, who is African American, “intentionally, knowingly, and maliciously planned and orchestrated a vile accusation of racism against [Franklin], a Caucasian woman, and then plotted to level his false charges in the most public, high-profile way available to him: from the dais of the Sarasota City Commission in a public meeting.”
The four-complaint alleges that Battie has defamed Franklin in multiple ways — including committing conspiracy to defame her — and intentionally inflicted emotional distress upon her.
Franklin is seeking damages in excess of $50,000, “exclusive of interest, court costs, and attorneys’ fees” and is demanding a jury trial, the complaint adds.
A form filed with the Circuit Court shows that damages would be sought up to $75,000. However, that form explains, “The estimated amount of the claim is requested for data collection and clerical processing purposes only. The amount of the claim [noted on the form] shall not be used for any other purpose.”
A private citizen, Franklin is a retired publishing executive who has resided in downtown Sarasota since 2011, the complaint says. She is civically active, and has advocated for public parks and greenspace and human rights,” the complaint continues.
Battie, it notes, is “the only African-American member” of the City Commission. He “has worked as a model, bartender, and masseur. He previously hosted the men’s lifestyle show ‘Fly with Kyle Scott’ for ABC-7 and a segment on Good Morning America called ‘Regular Guys,’ ” the complaint says. His acting credits include the independent film Norma’s Lament.
Quoting at length from the closed-captioning record of the City Commission’s regular meeting on Jan. 16, the complaint provides details of Battie’s presentation of an alleged Facebook post that included a photo of Battie and the owner of the Corona Cigar Co., Tanya Borysiewicz, at the September 2023 ribbon-cutting ceremony for the business on North Lemon Avenue. The photo was below a heading that Franklin had written on a December 2022 post of photos that she had taken of gorillas in the African nation of Rwanda.
Battie was serving as the mayor of Sarasota at the time of the ribbon-cutting. During his Jan. 16 remarks, he described Borysiewicz as half Scottish and half African American.
As The Sarasota News Leader has reported, Battie did not mention Franklin by name during his Jan. 16 presentation, but the alleged post he showed everyone watching the City Commission meeting, in person or via live-streaming, included Franklin’s name and photo.
The complaint points out, “Lest anyone present at or watching the meeting fail to make the intended racist connotation of the Hoax Post, [Mayor Liz Alpert] summed it up: ‘It was a shock that anyone would post something like that and not realize that that was inappropriate to ever equate somebody who is black to a gorilla.’ ”
Further, the complaint says, “The purported post from Franklin’s personal Facebook™ that Battie published and discussed at length during the Commission meeting … does not exist. It has never existed. It is a fabrication. It is a hoax. The photograph published by Battie and the document that it purports to depict shall be hereinafter and henceforth referred to as the ‘Hoax Post.’ ” The complaint adds, “The Hoax Post was created by a person or persons who are unknown to Franklin as of the time this Complaint is filed.”
“At all times pertinent hereto,” the complaint continues, “Franklin’s personal Facebook™ page was on a ‘public’ setting, meaning that anyone with access to the internet could call it up and view it, just as Borysiewicz [of the Corona Cigar Co.] did.
“Remarkably,” the complaint points out, “not a single person had reported actually seeing the Hoax Post on Franklin’s personal Facebook™ page at any time between September 22, 2023, the purported date of the Hoax Post, and January 16, 2024.”
Public records, the timeline and lack of an apology
As the News Leader also has reported, public records requests submitted to the city found that Battie and Borysiewicz had communicated with each other about the purported Facebook post beginning Dec. 19, 2023, almost exactly a month before he made the Jan. 16 City Commission presentation.
The complaint provides examples of those exchanges and comments on them:
- “On December 20, 2023, for reasons that are unknown to Franklin as of the date this Complaint is filed, Battie transferred certain photographs, including Franklin’s original gorilla photo gallery, from one of his phone numbers to another phone owned and controlled by him.
- “On January 2, 2024, the Commission held a regularly scheduled meeting. Battie made no mention of the Hoax Post or of anything related to it.
- “On or about January 10, 2024, Battie requested that two items be added to the agenda for the regularly scheduled January 16 Commission meeting.” One of those was the New Business item during which he made the allegations of racism involving Franklin. Formally, the item was titled “Discussion Re: Civility, Respect and Rhetoric.”
Then the complaint points out, “Contrary to custom and standard operating procedure of the Commission, Battie did not furnish any supporting documents or other backup materials to the City Clerk to be included with the meeting agenda package for distribution to the City Commissioners with respect to [this] requested new agenda [items].”
After providing further excerpts from the closed captioning of Battie’s Jan. 16 comments regarding the alleged Facebook post, the complaint offers details of Mayor Alpert’s actions in reprising a discussion of the situation later in the day, as the meeting continued.
The complaint notes that five members of the public, including Franklin’s husband — Ron Kashden — “decried the lack of any ‘vetting’ or verification of the Hoax Post and pointed out its obvious lack of veracity.”
However, the complaint continues, after Alpert said she felt an apology to Franklin was due, Commissioner Debbie Trice concurred “but expressed concern that this was in fact an attack against Battie and the ongoing discussion was ‘a hijacking of this issue …’ ” The complaint added, “Battie immediately jumped on the idea that he, not Franklin, was the victim and that the discussion had been ‘hijacked’ …”
Trice is Black, she told the News Leader via email on Feb. 16.
The complaint notes that no apology ended up being made to Franklin. “To the contrary,” it says, “Battie doubled down and insisted that it was Franklin’s burden to prove that the Hoax Post was, in fact, a hoax.”
“At all times material to this action,” the complaint contends, “Battie was acting beyond the scope of his employment or function as a City Commissioner, in bad faith and with malicious purpose and in a manner exhibiting wanton and willful disregard of Franklin’s rights.”
State law and the City Charter
Quoting from both Section 166.021(1) of the Florida Statutes and then from Article IV of the Sarasota City Charter, the complaint argues that the “Hoax Post, if taken at face value as presented by Battie, was unrelated to any City-permitted or City-regulated activity by Franklin.” Further, the complaint says, the Hoax Post “did not reflect, suggest, or relate to the commission of any criminal offense by Franklin,” nor did it “include any incitement to imminent lawless action (incitement), threats of serious bodily harm (true threats), or speech that would cause an immediate breach of the peace (fighting words).”
The complaint also argues, “Neither the City Commission nor Battie has any lawful or legitimate governmental function that involves monitoring, policing, regulating, analyzing, calling out, or legislating over the private speech of citizens — even speech that is hurtful or offensive, or that would full under what is colloquially referred to as ‘hate speech.’ Such speech is fully and robustly protected under the First Amendment.
“Thus,” the complaint continues, “the Hoax Post, taken at face value as presented by Battie, was outside the scope of any lawful scope or function of either the City Commission or Battie, as an individual city commissioner.
“As such, Battie is personally liable in tort for his actions,” the complaint contends.