Defamation lawsuit filed against Sarasota City Commissioner Kyle Battie

Sarasota City Commissioner Kyle Battie has been named in a civil lawsuit brought by Sarasota resident and frequent local government critic Kelly Franklin, who is seeking damages in excess of $50,000 as a result of racially charged allegations publicly made against her during a Jan. 16, 2024, City Commission meeting.

On Monday, attorney Richard Harrison of Tampa filed a demand for jury trial in 12th Judicial Circuit Court, a 40-page complaint alleging three counts of defamation, one count of conspiracy to defame and one count of intentional infliction of emotional distress. 

In the early portion of the Jan. 16 meeting, Battie produced what he said was a crumpled printout of a Facebook post attributed to Franklin that showed himself at a 2023 ribbon cutting for Corona Cigar Co. along with co-owner Tanya Borysiewicz, a half Black woman, and others. Above the photo was a caption that read, “Gorillas in the midst of being gorillas are on my mind.”

That prompted a mid-meeting denial via email from Franklin to Mayor Liz Alpert. A search of Franklin’s Facebook feed revealed a post with those exact words, but in association with more than 20 photos of gorillas she took during an African photo safari in 2022. 

In an email to fellow members of political action group CityPAC, Franklin wrote, “Knowing my love for word play, I wouldn't be surprised to see that as the caption on one of my photo safari pictures, but it was NOT on my posting about then-Mayor Battie's appearance at the opening of Corona Cigar. I am the victim of a not very hard-to-do mashup of various Facebook posts into a composite.”

Franklin has been frequently critical of the city’s approval of Corona Cigar, claiming irregularities with the city’s zoning regulations. Corona Cigar Co. also operates three cigar bar locations in Orlando and one in Tampa.

Exactly who printed the alleged post has not been determined, but Borysiewicz told commissioners on Jan. 16 that it was delivered to her Sarasota location office in an envelope, where her assistant had crumpled it and placed it in a trash can. It was later retrieved and turned over to Borysiewicz, who subsequently gave it to Battie.

Franklin’s suit alleges that occurred in mid-December, and that communications between Borysiewicz and Battie, obtained via FOIA requests, suggest both knew nearly a month prior to the Jan. 16 meeting that the document was a hoax.

Battie has said during that meeting, and at the Feb. 5 meeting during which commissioners approved city funding of his legal expenses up to $15,000, that he will publicly apologize for outing Franklin as an alleged racist if it can be proven the document was a hoax.

Even if the post was authentic, according to the complaint Harrison filed, the airing of the offending document during a public City Commission meeting was inappropriate. Paragraphs 84-85 read:

"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 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.”

The five counts, according to the complaint, allege:

1. Defamation: Battie's initial statement, follow-up statements and the hoax post were statements made and presented by Battie as statements of fact about Franklin.
2. Defamation Per Se: According to the filing, a publication or statement is defamatory per se “if, when considered alone or without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.”
3. Defamation by Implication: Defamation by implication is “premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements.”
4. Conspiracy to Defame: Battie conspired with one or more persons, including but not limited to Borysiewicz, to defame Franklin.
5. Intentional Infliction of Emotional Distress: Battie’s conduct as alleged was intentional or reckless. Battie intended his behavior when he knew or should have known that emotional distress would likely result.

The complaint concludes, “As the result of Battie’s various statements and the hoax post, Franklin has suffered and will continue to suffer damages, including but not limited to injury to her good name and reputation, shame, humiliation, mental anguish, and hurt feelings and aggravation of one or more existing medical conditions.” 

As of Tuesday afternoon, members of the City Commission did not respond to a request for comment about the complaint.