Anthony et al v. City of Naples
Filing
36
OPINION AND ORDER denying 24 plaintiffs' Amended Renewed Motion for Preliminary Injunction. See Opinion and Order for details. Signed by Judge John E. Steele on 12/1/2016. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIE
ANTHONY,
ULYSSES
WILLIAMS, MAMIE S. WILLIAMS,
LISET D. ZALAYA, JOSE LUIS
CUIN, MARY LINDA SANDERS,
KAY
WILLIAMS,
BARBARA
FULLER,
ROSIE
PERRY,
REGINALD J. GAVIN, SR. ,
MARY
WILLIAMS,
JUANITA
WILLIAMS, ZORA WALKER, IDA
LAWSON,
WYNETTA
MOBLEY,
FREDDIE COMMODORE, WARREN
ADKINS, JR. , ETHAN BULGER,
TAMMY
MATHIS,
ROGER
ROBINSON, ANTONIO DUMORNAY,
and ULYSSES MITCHELL,
Plaintiffs,
v.
Case No: 2:16-cv-543-FtM-99MRM
CITY OF NAPLES, a political
subdivison of the State of
Florida and 7-ELEVEN, INC.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiffs' Amended
Renewed Motion for Preliminary Injunction (Doc. #24) filed on
October
25,
opposition
2016.
(Doc.
The
#33)
City
on
of
Naples
November
8,
filed
2016.
a
Response
Following
in
the
intervention of 7-Eleven, Inc., 7-Eleven also filed a Response to
plaintiff’s Motion for Preliminary Injunction (Docs. ##34, 35) on
November 21, 2016.
I.
Plaintiffs initially brought this suit in the Circuit Court
of the Twentieth Judicial Circuit of Florida in and for Collier
County on or about June 15, 2016 against the City of Naples
(“City”).
(Doc. #1-1.)
Defendant removed this action on July 7,
2016 on the basis of federal question jurisdiction under 28 U.S.C.
§ 1331.
Amended
(Doc. #1.)
Complaint
Complaint
(Doc.
After removal, plaintiffs filed a Second
(Doc.
#14)
#11)
and
asserting
an
the
Amended
following
Second
Amended
claims:
(1)
Temporary and Permanent Injunction for Federal Fair Housing Act
Violation; (2) Temporary and Permanent Injunction for Federal Due
Process
Rights
Violations;
Violations;
(3)
(4)
Declaratory
Declaratory
Relief
Relief
for
for
Federal
Civil
Procedural
Due
Process Violations; and (5) Temporary and Permanent Injunction
Under Florida Fair Housing Act.
(Id.)
Plaintiffs assert that they all are minority residents of a
fifty-year-old neighborhood in Collier County, Florida, referred
to as “River Park East.”
(Id. ¶ 4.)
River Park East and a small
nearby neighborhood together comprise the only minority community
in the City of Naples.
(Id. ¶ 11.)
Plaintiffs bring this action
to challenge an Ordinance passed by the City allowing for the
demolition of an old, unoccupied gas station and the subsequent
- 2 -
construction of a new, 24-hour convenience store and gas station
at the corner of River Park East.
(Id. ¶¶ 12, 18.)
On October 25, 2016, plaintiffs filed an Amended Renewed
Motion for Preliminary Injunction seeking to “temporarily rescind
Ordinance A, thereby stopping any demolition or construction work
on the subject property and stopping the City staff’s process of
approving the construction permit, until this case is resolved on
its merits.”
(Doc. #24, p. 6.)
II.
In order to obtain a preliminary injunction, the movant must
demonstrate “(1) a substantial likelihood of success on the merits
of the underlying case, (2) the movant will suffer irreparable
harm in the absence of an injunction, (3) the harm suffered by the
movant in the absence of an injunction would exceed the harm
suffered by the opposing party if the injunction is issued, and
(4)
an
injunction
would
not
disserve
the
public
interest.”
Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d
1268, 1273 (11th Cir. 2013) (citing Grizzle v. Kemp, 634 F.3d 1314,
1320
(11th
Cir.
2011)).
“[A]
preliminary
injunction
is
an
extraordinary and drastic remedy not to be granted unless the
movant clearly establishes ‘the burden of persuasion’ as to each
of the four prerequisites.”
Siegel v. LePore, 234 F.3d 1163, 1176
- 3 -
(11th Cir. 2000) (quoting All Care Nursing Serv., Inc. v. Bethesda
Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)).
A. Substantial Likelihood of Success on the Merits
The
first
factor
in
determining
whether
a
preliminary
injunction should issue is whether the plaintiffs are likely to
prevail on the merits of their claim(s).
In support of this
factor, plaintiffs point the Court to the arguments presented in
response to the City of Naples’ Motion to Dismiss.
(Doc. #24, ¶
16.)
1. Fair Housing Act Violation
Plaintiffs assert claims under the Federal and Florida Fair
a Housing Act. 1
(Doc. #14, ¶¶ 28-37, 48-53, 65-74.)
The Federal
Fair Housing Act (“FHA” or “Fair Housing Act”), 42 U.S.C. §§ 36013619, forbids discrimination in making available or providing
services related to housing.
The Fair Housing Act states in
pertinent part:
[I]t shall be unlawful—
(a) To refuse to sell or rent after the making of a bona
fide offer, or to refuse to negotiate for the sale or
rental of, or otherwise make unavailable or deny, a
dwelling to any person because of race, color, religion,
sex, familial status, or national origin.
1
The Florida Fair Housing Act and the Federal Fair Housing
Act are “substantively identical.”
Loren v. Sasser, 309 F.3d
1296, 1299 n.9 (11th Cir. 2002). As such, the analysis applicable
to the Federal Fair Housing Act claim is equally applicable to
plaintiffs’ Florida Fair Housing Act claim.
- 4 -
Id. § 3604(a).
Congress’s purpose in enacting the Fair Housing
Act was “to provide, within constitutional limitations, for fair
housing throughout the United States.”
Id. § 3601.
In order to state, and ultimately prevail on, a claim under
the
Fair
Housing
Act,
“a
plaintiff
must
demonstrate
unequal
treatment on the basis of race that affects the availability of
housing.”
Bonasera v. City of Norcross, 342 F. App’x 581, 583
(11th Cir. 2009) (quoting Jackson v. Okaloosa County, 21 F.3d 1531,
1542 (11th Cir. 1994)).
A plaintiff may establish a violation of
the Fair Housing Act by proving “(1) intentional discrimination,
(2) discriminatory impact, or (3) a refusal to make a reasonable
accommodation.”
significant
Id. (citations omitted).
discriminatory
effect
suffices
violation of the Fair Housing Act.”
(citation omitted).
“[A] showing of a
to
demonstrate
a
Jackson, 21 F.3d at 1543
A discriminatory effect can be shown in two
ways, “it can demonstrate that the decision has a segregative
effect
or
that
it
makes
housing
options
significantly
more
restrictive for members of a protected group than for persons
outside that group.”
Bonasera, 342 F. App’x at 585 (citation
omitted).
Plaintiffs allege that the City’s approval of the site plan
at the southeastern corner of River Park East for the construction
of
an
all-night
convenience
store
- 5 -
and
gas
station
(7-11)
disparately impacts River Park East’s minorities.
12, 17.) 2
(Doc. #14, ¶¶
Plaintiffs allege that the City, through the passage of
ordinances such as the site plan for the 7-11, has enabled and
encouraged the “expulsion and displacement of minority residents
from
their
own
neighborhoods.”
neighborhoods
(Id. ¶ 20.)
and
replacing
them
with
white
Plaintiffs allege that the City’s
actions or inactions have reduced the price of their property,
causing white investors to purchase the property, who in turn raise
rent, and eventually will push them out of their neighborhood.
(Id. ¶ 23.)
Plaintiffs cursorily allege in their Amended Second Amended
Complaint that the site plan approval “has made unavailable or
denied dwelling to Plaintiffs because of race, color, or national
origin,
as
Plaintiffs.”
these
actions
(Id. ¶ 31.)
and
omissions
disparately
impact
However, there are not any factual
allegations in the Amended Complaint that the City has treated the
2
Plaintiffs allege the following statistics: the City has
not approved any other all-night gas station in recent years, the
City has not approved the construction of a convenience store or
gas station located in such close proximity to permanent
residences, the City has not approved any other gas station in
such close proximity to a navigable waterway, the City has not
approved any other convenience store/gas station at the sole
entrance to and exit from a residential neighborhood, and Collier
County has not approved any site plans in such close proximity to
permanent residences or navigable waters. (Id. ¶ 19.) Collier
County has not been named as a party to this lawsuit. (See Doc.
#14.)
- 6 -
residents of Park River Easy unequally on the basis of race that
affects the availability of housing.
(See Doc. #14.)
Instead,
plaintiffs assert that the City’s approval of the 7-11 site plan,
which will allow for the demolition of an old, unoccupied gas
station and the subsequent construction of a new gas station at
the corner of River Park East, will subsequently cause a decrease
in plaintiffs’ property values, which will cause white investors
to purchase the properties, who will then raise the rent to a rate
that
plaintiffs
can
no
longer
afford,
which
plaintiffs being dejected from their homes.
will
result
in
The Court finds the
site plan approval is far too remotely related to the housing
interests that are protected by the Fair Housing Act to establish
a substantial likelihood of success on their Florida and Federal
Fair Housing Act claims.
The City did not “make unavailable or deny a dwelling to any
person” within the meaning of the Fair Housing Act.
Plaintiffs,
in effect, request this Court to hold that every practice having
the effect, no matter how minor, of making housing more difficult
to obtain, is a violation of the Fair Housing Act.
finds
that
plaintiffs
have
not
established
a
The Court
substantial
likelihood of success of extending the Fair Housing Act’s breadth
this far.
In order to allege a claim under the Fair Housing Act
there must be a closer causal connection between the act and the
- 7 -
effect on the availability of housing.
Unlawful practices under
the
laws
Fair
Housing
Act
include
“zoning
and
other
housing
restrictions that function unfairly to exclude minorities from
certain neighborhoods without any sufficient justification.”
Tex.
Dept. of Housing & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,
135 S. Ct. 2507, 2521-22 (2015) (citing Huntington v. Huntington
Branch,
NAACP,
488
U.S.
15
(1988)
(invalidating
zoning
law
preventing construction of multifamily rental units) and United
States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974)
(invalidating
multifamily
ordinance
dwelling)).
prohibiting
See
also
construction
Jackson,
21
of
new
at
1543
F.3d
(finding plaintiffs stated a claim for discriminatory effects on
the availability of housing for excluding public housing from an
unincorporated 5-mile area). These situations, however, have a
much more direct causal connection between the availability of
housing
and
the
disputed
connection is missing.
action.
Here,
the
direct
causal
Numerous actions, private and official,
may affect housing in some remote manner, but the Fair Housing Act
requires a closer casual link between the availability of housing
and the disputed action than is present in the underlying case.
Accordingly, the Court finds that while plaintiffs’ Amended
Second Amended Complaint does contain allegations of disparate
treatment – treating residents of River Park East different than
- 8 -
predominately white neighborhoods – it is not substantially likely
that these allegations relate to the availability of housing.
The
availability of housing is the focus of the Federal Fair Housing
Act.
42 U.S.C. § 3604(a).
Therefore, the Court finds that
plaintiffs have not shown a substantial likelihood that the City’s
actions here affect plaintiffs’ availability of housing in a manner
implicated by section 3604(a) of the Fair Housing Act.
See Jersey
Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180 (4th Cir.
1999) (finding decision for placement of highway too remotely
related to the availability of housing to support a claim under
the FHA).
Accordingly, the Court finds that plaintiff has failed
to show a substantial likelihood of succeeding on their Federal
Fair Housing Act claims.
This analysis equally applies to plaintiff’s Florida Fair
Housing Act claim.
Loren, 309 F.3d at 1299 n.9.
Accordingly,
the Court finds that plaintiffs have also failed show a substantial
likelihood of succeeding on their Florida Fair Housing Act claim.
2. Federal Due Process Violations
Counts II and IV of plaintiffs’ Second Amended Complaint
request Temporary and Permanent Injunction and Declaratory Relief
for Federal Due Process Violations.
Plaintiffs
3
allege
that
Ordinance
(Doc. #14, ¶¶ 38-47, 54-64.)
B
3
violates
plaintiffs’
The Ordinance obligates the City to provide notice of
- 9 -
procedural due process rights under the Fourteenth Amendment of
the United States Constitution because it fails to provide adequate
notice and meaningful opportunity to be heard regarding issues
affecting their life, liberty, and property and that the site plan
required greater notice than that provided in Ordinance B.
(Id.)
The due process clause requires that the deprivation of life,
liberty, or property must be preceded by notice and the opportunity
for a hearing.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985) (citing Mullane v. Cent. Hanover Bank & Tr. Co.,
339 U.S. 306, 313 (1950)).
“A § 1983 action alleging a procedural
due process clause violation requires proof of three elements: a
deprivation of a constitutionally-protected liberty or property
interest; state action; and constitutionally inadequate process.”
Zisser v. Fla. Bar, 747 F.Supp.2d 1303, 1317 (M.D. Fla. 2010)
(citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)).
Failure to establish any one of these elements is fatal to a
plaintiff's procedural due process claim under § 1983.
Id.
Land
use rights, as state-created property rights, are protected by the
procedural
due
process
rather
than
substantive
due
process.
DeKalb Stone, Inc. v. County of DeKalb, 106 F.3d 956, 959-60 (11th
hearings of certain proposed site plans by “(a) mailing to owners
of property within 500 feet of the site at least 14 days prior to
the hearing of the Planning Advisory Board and (b) publishing
notice once in a newspaper of general circulation at least 15 days
prior to the public hearing. (Doc. #14, ¶ 15; Doc. #34, p. 8.)
- 10 -
Cir. 1997).
“[N]o procedural due process claim exists until a
sufficiently certain property right under state law is first
shown.”
Greenbriar Village, L.L.C. v. Mountain Brook, 345 F.3d
1258, 1265 (11th Cir. 2003).
The unavailability of adequate state procedures to remedy a
procedural deprivation is an element of a procedural due process
claim – as opposed to a mere exhaustion requirement.
Flagship
Lake Cty. Dev. No. 5. LLC v. City of Mascotte, 559 F. App’x 811,
815 (11th Cir. 2014).
If adequate state remedies were available but the
plaintiff failed to take advantage of them, the
plaintiff cannot rely on that failure to claim that the
state deprived him of procedural due process. And, to
be adequate, the state procedure need not provide all
the relief available under section 1983. Instead, the
state procedure must be able to correct whatever
deficiencies exist and to provide plaintiff with
whatever process is due.
Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000) (internal
citations omitted).
Certiorari is an adequate state remedy if the
remedy is available to plaintiffs.
Id.
The proceeding with which the plaintiffs have issue — the
decision approving the 7-11 site plan — is characterized as a
quasi-judicial proceeding and subject to judicial review by the
grant of certiorari by the circuit court.
4
4
Broward County v.
Courts have held that a party’s exclusive remedy to obtain
reversal of the city’s decision regarding a site plan is by
petition for writ of certiorari.
Palazzo Las Olas Grp. LLC v.
- 11 -
G.B.V. Int’l, Ltd., 787 So. 2d 838, 842-43 (Fla. 2001); Palazzo
Las Olas Grp. LLC, 966 So. 2d at 500-01 (citation omitted).
A
party must seek certiorari review within thirty (30) days of the
decision or hearing at issue.
Am. Riviera Real Estate Co. v. City
of Miami Beach, 735 So. 2d 527, 528 (1999) (citing Fla. R. App. P.
9.020(a)(3), 9.100(b)-(c), 9.190(b) & advisory committee’s note)).
During
the
certiorari
proceeding,
reviewable by the circuit court:
procedural
essential
due
process;
requirements
(2)
of
the
following
issues
are
“(1) whether the agency afforded
whether
law;
and
the
(3)
agency
observed
whether
the
competent,
substantial evidence supported the agency’s findings.”
Palazzo
Las Olas Grp. LLC, 966 So. 2d at 501 (citation omitted); see also
G.B.V. Int’l Ltd., 787 So. 2d at 843.
Within
Count
II,
plaintiffs
allege
that
“[t]here
is
no
adequate remedy at law, as damages are difficult or impossible to
calculate, damages cannot ameliorate the life, health and safety
risks
enabled
by
the
site
plan,
and
damages
cannot
expulsion of Plaintiffs from their own neighborhood.”
¶ 45.)
prevent
(Doc. #14,
While the beginning portion of this paragraph may have
City of Ft. Lauderdale, 966 So. 2d 497, 502(Fla. 4th DCA 2007)
(“[W]e hold that while any direct challenge seeking to overturn
the Commission’s decision denying site plan approval had to be
sought via the filing of a petition for writ of certiorari, this
did not preclude [plaintiff] from bringing a civil suit, wherein
it sought relief on matters beyond those appropriately addressed
during the certiorari proceeding.”).
- 12 -
been
sufficient
to
allege
that
there
were
no
adequate
state
procedures to remedy the alleged procedural deprivation, it is
clear
by
referring
the
to
remainder
remedies
of
at
the
law,
sentence
i.e.,
that
damages,
plaintiffs
as
opposed
are
to
equitable remedies, in relation to their request for a Temporary
and Permanent injunction.
state
procedures
were
This is insufficient to allege that
unavailable
to
remedy
the
procedural
deficiencies and the Amended Second Amended Complaint is otherwise
devoid of allegations that state procedures were unavailable to
remedy the procedural deficiencies.
Accordingly, the Court finds
that plaintiff has failed establish a substantial likelihood of
succeeding on their procedural due process claim in Count II. 5
Count
IV,
seeking
declaratory
relief
for
procedural
due
process violations, is similarly deficient and does not even
contain an allegation that there are “no remedies available at
law.”
(Doc. #14, ¶¶ 54-64.)
Accordingly, the Court finds that
plaintiffs have failed to establish a substantial likelihood of
succeeding on their procedural due process claim in Count IV.
5
In plaintiffs’ Response to defendant’s Motion to Dismiss,
plaintiffs assert that because this action was filed fewer than 30
days after the City’s approval of the site plan, plaintiffs can
amend their complaint to add a claim under a Writ of Certiorari.
(Doc. #18, p. 19.)
At this point however, plaintiffs have
requested leave to make any such amendments.
- 13 -
Accordingly, plaintiffs’ Motion for Preliminary Injunction
(Doc. #24) is denied.
Accordingly, it is hereby
ORDERED:
Plaintiffs' Amended Renewed Motion for Preliminary Injunction
(Doc. #24) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this __1st__ day of
December, 2016.
Copies:
Counsel of Record
- 14 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?