Foley et al v. Orange County et al

Filing 290

ORDER granting in part and denying in part 269 Motion for summary judgment; denying as moot 175 motion to dismiss and Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 261 Motion for summary judgment. See Order for details. Signed by Judge Roy B. Dalton, Jr. on 8/13/2013. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DAVID W. FOLEY, JR.; and JENNIFER
T. FOLEY,
Plaintiffs,
vs.

Case No. 6:12-cv-269-Orl-37KRS

ORANGE COUNTY,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Defendant Orange County’s Motion to Dismiss (Doc. 175), filed January
31, 2013;

2.

Plaintiffs’ Response to County’s Motion to Dismiss (Doc. 182), filed
February 14, 2013;

3.

Defendant Orange County’s Dispositive Motion for Final Summary
Judgment (Doc. 261), filed June 14, 2013;

4.

Plaintiffs’ Motion for Summary Judgment (Doc. 269), filed June 14, 2013;

5.

Plaintiffs’ Response to Defendant Orange County’s Motion for Summary
Judgment (Doc. 277), filed June 28, 2013;

6.

Defendant Orange County’s Response in Opposition to Plaintiffs’ Motion
for Summary Judgment (Doc. 282), filed July 15, 2013;

7.

Plaintiffs’ Supplemental Response in Opposition to Orange County’s
Motion for Summary Judgment (Doc. 285), filed July 22, 2013;

8.

Plaintiff’s Reply to Defendant Orange County’s Response in Opposition to

Plaintiffs’ Motion for Summary Judgment (Doc. 286), filed July 31, 2013;
9.

Defendant Orange County’s Reply in Support of Summary Judgment
(Doc. 287), filed August 5, 2013.
BACKGROUND

Plaintiffs are residents of Orange County, Florida, who own and raise toucans.
(Decl. ¶¶ 10, 20.)1 They bring several claims against Orange County based on their
efforts to operate a commercial aviary out of their residence, which is located in a
residential-only zoned area of the county, and another parcel of property that is located
in rural-use zoned area of the county. (Id. ¶¶ 12–19.) Plaintiffs contend, writ large, that
portions of Orange County’s land use ordinances, which prohibit the operation of a
commercial aviary at the residence altogether and at the second property absent a
special use permit, conflict with a provision of the Florida Constitution that provides the
Florida Fish and Wildlife Commission with all of the “regulatory and executive powers of
the state with respect to wild animal life and fresh water aquatic life.” Art. IV, § 9, Fla.
Const.
The dispute arose after Orange County received a citizen’s complaint regarding
Plaintiffs’ business. (Decl. ¶ 39.) County code enforcement officers investigated the
complaint and cited Plaintiffs for building accessory buildings at their residence without
the necessary permits. (Id. ¶¶ 41, 51.) During the pendency of the ensuing code
enforcement proceedings, Plaintiffs requested the county zoning manager provide them
1

Plaintiffs, in violation of the Local Rules, attempt to incorporate by reference
over 200 pages of materials to the Amended Complaint. While Plaintiffs’ complaint and
attachments are voluminous, most of the relevant facts are set forth in an attached
declaration. (Doc. 164, Exhibit 14.) The Court will construe the declaration as alleging
the factual support for the complaint and in this Order will refer to the allegations it
contains as “Decl.”

2

with an official determination as to whether they were authorized to operate a
commercial aviary at their residence. (Id. ¶ 69.) The manager determined that the
operation of a commercial aviary at the residence was not authorized as a primary or
secondary use under Orange County’s land use ordinances, and he determined further
that a commercial aviary was not an authorized home occupation. (Doc. 163, Ex. 10.)
Plaintiffs appealed the manager’s determination to the board of zoning adjustment and
then the board of county commissioners, but failed to convince either body to overturn
the manager’s interpretation of the ordinances. (Decl. ¶¶ 83, 98, 101, 121.) Plaintiffs
filed actions in state court for reviews of the code enforcement proceedings and the
determination proceedings; however, in both cases, the courts determined that Orange
County did not err. (Id. ¶¶ 123–124.) Plaintiff then filed this action.
Plaintiffs’ initial 67-page complaint brought numerous federal and state claims
against Defendant Orange County and a number of individual defendants. Plaintiffs
sought, and were granted leave to amend their initial complaint. (Doc. 88.) They filed a
92-page Amended Complaint on May 14, 2012, which once again brought numerous
federal and state claims against Defendant Orange County and a number of individual
defendants. (Doc. 85.) The Court dismissed all claims in Plaintiff’s amended complaint
and struck it as improper on December 4, 2012. (Doc. 150.) The Court dismissed the
claims against all of the individual defendants with prejudice, and dismissed without
prejudice those brought against Orange County. (Id.) The Court directed Plaintiffs to file
a Second Amended Complaint that set forth only claims against Orange County. (Id.)
The Second Amended Complaint—like its predecessors—is verbose, filled with
irrelevant discussions of legal issues, and attempts to bring federal and state claims
against Defendant Orange County and a number of individual defendants. (Doc. 162.)

3

While the Second Amended Complaint sets forth its federal and state law claims in just
39 pages, it also incorporates by reference three appendices totaling over 200 pages of
material. Such incorporation by reference violates Local Rule 4.01. Rather than
dismissing the complaint yet again, the Court will treat the declaration that is part of
Appendix B (Doc. 164, Exhibit 14) as setting forth Plaintiffs’ allegations of fact.
The Court construes the Second Amended Complaint as presenting a state-law
claim that seeks a declaration that portions of Orange County’s land use ordinances are
void.2 The Court also construes the Second Amended Complaint as raising five federal
claims. The first federal claim is a substantive due process challenge to Orange
County’s land use ordinances.3 Plaintiffs’ second federal claim is a “class of one” equal
protection claim. Their third federal claim is one for “compelled speech” in violation of
the First Amendment, and their fourth federal claim alleges Orange County’s ordinances
act as prior restraints to Plaintiffs’ commercial speech rights. Plaintiffs’ final federal claim
is that Orange County’s land use proceedings are searches and seizures that violate

2

This claim is not subject to res judicata or estopped by Plaintiffs’ state court
actions, which were in nature of an administrative review of an executive action. Indeed,
in those proceedings, the state court notified Plaintiffs of the need to file an independent
civil action to challenge the constitutionality of the land use ordinances. (See Doc. 26,
Ex. A; Doc. 66, Ex. 1; Doc. 67, Ex. 2.)
3

The Court construes this claim as a facial substantive due process claim to
three provisions—Section 38-1, Section 38-77, and Section 38-79(48)—of Orange
County’s zoning ordinance as well as a challenge to Orange County’s application of
those provisions to Plaintiffs’ residence. See Eide v. Sarasota Cty., 908 F.2d 716, 721–
22 (11th Cir. 1990). Plaintiffs cannot bring an as applied substantive due process
challenge in connection with their second property because they have not shown that
Orange County has applied the ordinances to that property. See id. at 724–25; see also
Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 197–
200 (1985) (refusing to adjudicate the plaintiff’s due process claims in a dispute
concerning lad use regulations because the plaintiff “failed to apply for variances from
the regulations”). In other words, the claim that relates to the rural property is not ripe.

4

Plaintiffs’ Fourth Amendment rights. 4
The parties have conducted discovery and filed cross motions for summary
judgment. These motions are now ripe for adjudication. The relevant facts are not
disputed.5
STANDARDS
Summary judgment is appropriate where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A genuine dispute of material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). To defeat a motion for summary judgment, the
nonmoving party must “go beyond the pleadings, and present affirmative evidence to
show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006). The Court must “draw all justifiable inferences in favor of the
nonmoving party, including questions of credibility and of the weight to be accorded
4

The Second Amended Complaint purports to bring claims against Defendants
other than Orange County without leave. Because the Court had previously dismissed
those claims with prejudice (Doc. 150), the Court issued an Order informing those
parties that they need not respond to the Second Amended Complaint and directing the
clerk to terminate them as parties to this action (Doc. 168). In this Order, the Court
considers only those claims in the Second Amended Complaint that Plaintiffs assert
against Defendant Orange County. To the extent Plaintiffs intend to bring claims against
any other defendant, such claims are hereby dismissed because Plaintiffs’ were not
granted leave to assert such claims in their amended pleading. As an additional basis
for dismissal, if one is needed, the Court also dismisses those claims as a sanction for
Plaintiffs’ failure to abide the Court’s Order to comply with the Rule 8 and Rule 10 of the
Federal Rules of Civil Procedure.
5

Plaintiffs’ residence is classified as R-1A by the county’s land use ordinances.
Plaintiffs own or have an interest in a toucan breeding business. Mr. Foley and his
business were issued permits that authorized the possession and sale of the birds at
the residential property. And Orange County has prohibited Plaintiffs from operating
their toucan breeding business at their residence.

5

particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991).
“Cross motions for summary judgment do not change the standard.” PerezSantiago v. Volusia Cnty., No. 6:08-cv-1868-Orl-28KRS, 2010 WL 917872, at *2 (M.D.
Fla. Mar. 11, 2010) (quoting Latin Am. Music Co. v. Archdiocese of San Juan of the
Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007)) (internal quotation
marks omitted); see also Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th
Cir. 1991). “Cross motions for summary judgment are to be treated separately; the
denial of one does not require the grant of another.” Santiago, 2010 WL 917872 at *2
(citations and internal quotation marks omitted). When considering cross-motions for
summary judgment, the Court must “consider and rule upon each party’s motion
separately and determine whether summary judgment is appropriate as to each under
the Rule 56 standard.” Monumental Paving & Excavating, Inc. v. Pa. Mfrs.’ Ass’n Ins.
Co., 176 F.3d 794, 797 (4th Cir. 1999) (citations omitted).
DISCUSSION
Plaintiffs’ core dispute with Orange County—that the county has no authority to
regulate their toucan breeding business—is encapsulated in their state-law claim. The
Court will therefore discuss that claim first. The Court then addresses the merits of
Plaintiffs’ federal claims.
I. State Law Claims
The Court construes Plaintiffs’ Second Amended Complaint as seeking a
declaration that certain portions of Orange County’s land use ordinances are void under
Florida law. To address this claim, the Court must first review the county’s land use
ordinances and then describe in detail the ordinances challenged by Plaintiffs. The
Court then reviews Florida’s legislative and regulatory scheme for the possession and

6

sale of captive wildlife. The parties dispute how these two regulatory schemes interact.
A. Orange County’s Land Use Ordinances
Orange County is a charter county that possesses in accordance with Article 8,
section 1(g) of the Florida Constitution, “all powers of local self-government not
inconsistent with general law, or with special law approved by vote of the electors.” As
such, it “may enact county ordinances not inconsistent with general law.” Seminole Cty.
v. City of Winter Springs, 935 So. 2d 521, 523 (Fla. 5th DCA 2006). This is a direct
constitutional grant of broad powers of self-government. Id. It is pursuant to this
constitutional delegation of the state’s police power that Orange County enacted a
comprehensive set of land use regulations. See Fla. Stat. § 125.66.
Orange County divides the land within its boundaries into land use districts.
Ch. 38, Art. IV, § 38-71, Orange County Code (“OCC”). These districts are designated,
among other things, for commercial use, agricultural use, and residential use. Id. § 3877. The ordinances identify land uses—those that are permitted, those that are
prohibited, and those that may be allowed if a special exception is granted by the
county—by reference to a use table. Id. §§ 38-74, 38-77. The use table’s rows and
columns denote different land use districts and land uses. Id.
Plaintiffs’ residence is located in the R-1A zone, which is “intended to be singlefamily residential areas with large lots and low population densities” Ch. 38, Art. VI, §
38-301, OCC. The county’s ordinances permit Plaintiffs to use their residence for only
those categories of land uses that are designated P in the land use table and, if they
apply for and are granted a special exception, those categories of land uses designated
S. Id. § 38-302, 38-303. If the table contains a number, then another section of the
zoning ordinances imposes certain conditions with which a property owner must comply

7

in order to engage in that land use. Id. § 38-79. If the land use table is blank for a
particular land use category, then that use is prohibited in that district. Id. § 38-304. The
ordinances define some of the categories listed in the land use table. The land use table
designates “commercial aviculture, aviaries” as a category of land use. An aviary is
defined as “an enclosure for holding birds, excluding poultry, in confinement.” Ch. 38,
Art. I., § 38-1, OCC. “Aviculture (commercial)” is defined as “the raising, breeding and/or
selling of exotic birds, excluding poultry, for commercial purposes.” Id. The definition
also directs that a commercial purpose is present if any one of the following conditions
are satisfied:
(1)
(2)

(3)
(4)
(5)
(6)
(7)
(8)

(9)

The operation exists with the intent and for the purpose of
financial gain;
Statements of income or deductions relating to the operation are
included with routine income tax reporting to the Internal
Revenue Service;
A state sales tax identification number is used to obtain feed,
supplies or birds;
An occupational license has been obtained for the operation;
Sales are conducted at the subject location;
The operation involves birds or supplies which were purchased
or traded for the purpose of resale;
The operation involves a flea market or commercial auction,
excluding auctions conducted by not-for-profit private clubs;
The operation or activities related thereto are advertised,
including, but not limited to, newspaper advertisements or signs;
or
The operation has directly or indirectly created traffic.

Id. The ordinances define poultry as “domestic fowl such as chickens, roosters, turkeys,
ducks, geese, pigeons, etc.” Id. No definition is supplied for non-commercial aviculture,
nor is any such category listed in the land use table. Id. The land use table designates
instead the “breeding, keeping, and raising of exotic animals” as another category of
land use. Ch. 38, Art. IV, § 38-78, OCC. This category is left undefined. The land use
table is blank in reference to an R-1A district for the “commercial aviculture, aviaries”

8

and “breeding, keeping, and raising of exotic animals” categories. Id. Land uses falling
within these categories are therefore prohibited. Ch. 38, Art. VI, § 38-304, OCC.
B. The Possession and Sale of Captive Wildlife in Florida
All wildlife in Florida is controlled and regulated by a state agency called the
Florida Fish and Wildlife Conservation Commission. The commission was created by
the Florida Constitution and given “the regulatory and executive powers of the state with
respect to wild animal life and fresh water aquatic life,” Art. IV, § 9, Fla. Const.
The current incarnation of the commission was formed after voters adopted a
proposal of the 1998 Constitutional Revision Commission to merge the former Game
and Fresh Water Fish Commission “GAME Commission”), which was a constitutional
agency, and the Marine Fisheries Commission, which was an agency created by
statute. Caribbean Conservation Corp. v. Florida Fish & Wildlife Conservation Comm’n,
838 So. 2d 492, 497–99 (Fla. 2003). While the Game Commission was created in 1942,
it did not have the power to regulate captive wildlife until the Florida Constitution was
revised in the late 1960s. Compare Barrow v. Holland, 125 So. 2d 749, 751 (Fla. 1960)
(concluding that Art. IV, § 30 of the Florida Constitution of 1885, which authorizes the
creation of the Game Commission, did not provide the commission with the power to
regulate captive wildlife) with Art. IV, § 9, Fla. Const. (authorizing the Game
Commission to carry out “the regulatory and executive powers of the state with respect
to wild animal life and fresh water aquatic life.”).
The commission has exercised the powers given to it by promulgating rules
regulating the possession and sale of captive wildlife, which are found in chapter 68A of
the Florida Administrative Code. Rule 68A-1.002 of the Code declares that “[a]ll wild
animal life within the jurisdiction of the State of Florida, whether such wild animal life is

9

privately owned or otherwise, is subject to the regulation of the Commission.” The
regulations require all persons, except in limited circumstances not relevant here, to
obtain a permit from the commission in order to lawfully “possess any native or nonnative wildlife in captivity.” Fla. Admin. Code R. 68A-6.0011.
Such permits are issued in three classes. A class I permit is required to possess
animals such as lions, tigers, and bears. Id. 68A-6.002(1)(a), 68A-6.0022(1). A class II
permit is required to possess animals such as monkeys, the smaller members of
taxonomic family Felidae, and some members of the family Canidae. Id. 68A6.002(1)(b), 68A-0022(1). If a category of wildlife is not listed as class I or class II, and it
is not identified as an enumerated exception, then a person must obtain a class III
permit to possess and sell the animals. Id. 68A-6.002(1)(c), 68A-6.0022. Permits issued
by the commission are labeled as “Licenses to Sell or Exhibit” and specifically identify
the animals that the licensee is authorized to possess. (See, e.g., Doc. 264-1.)
The commission requires persons possessing wildlife to obtain documentation
regarding the source and supplier of every animal, as well as document the birth, death,
and sale of every animal. Id.; see also id. 68A-6.006. A permit holder is obligated under
the Code to maintain these records, make them available upon request, and allow the
inspection of the facility housing the wildlife. Id. 68A-4.006. The commission specifically
requires any person engaged in the business of breeding exotic birds to obtain a permit
from the commission.6 Id. 68A-6.006(1).
The commission has forbidden the possession of class I wildlife for personal use,
id. 68A-6.0021(1), which the Court construes to mean wildlife maintained in captivity as
6

The rules regarding the sale of captive exotic birds are murky, but are not
central to the resolution of the dispute between the parties because there is no dispute
that Plaintiffs’ business is intended to be a commercial breeding operation.

10

a personal pet, see id. 68A-1.004(55) (defining the term “personal pet”). Indeed, the
commission presumes that “the possession of wildlife . . . is commercial in nature,” and
(unless one qualifies as a “hobbyist possessor” of class III wildlife) requires every permit
holder to “demonstrate consistent and sustained commercial activity in the form of
exhibition or sale” of the wildlife the holder is authorized to possess. Id. 68A-6.0024(1).
The commission also regulates the size and composition of the facility that must
be used to house captive wildlife. Id. 68A-6.0023; see also id. 68A-6.003–68A-6.004.
The rules specifically regulate the size and construction of cages for exotic birds. Id.
68A-6.004(4)(r). The commission also considers, prior to issuance of a permit, the
location and character of the property where captive wildlife will be housed. The way in
which the commission has done so has changed over the years, however. Prior to
2008, the commission required applicants for class I and class II permits to show that
the wildlife would be kept in “appropriate neighborhoods,” which is also the term used in
the commission’s enabling statute.7 See id. 68A-6.0022(5)(b) (2000); Fla. Stat. §
379.303(1) (2012). In 2008, the commission modified Rule 68A-6.003 entitled “Facility
and Structural Caging Requirements of Class I, II and III Wildlife” to include certain
requirements for properties housing captive wildlife. Among other things, this rule
required applicants seeking permits for class I and class II wildlife to demonstrate the
required cages and enclosures were not prohibited by any county or municipal
ordinance. Fla. Admin. Code R. 68A-6.003(2) (2008). The rule also specifically
prohibited certain class I wildlife from being housed on “property within an area zoned
solely for residential use.” Id. 68A-6.003(2)(c) (2008).
7

Referring to the relevant Florida Statutes as “enabling” is a misnomer as the
state legislature can only “enact laws in aid of the commission.” Art. IV, § 9, Fla. Const.

11

The current version of Rule 68A-6.003 requires facilities for the housing of Class
I and Class II wildlife to meet certain ownership requirements, be of a certain size,
contain an appropriate buffer zone, and be enclosed by a perimeter fence. Id. 68A6.003(2) (2010). While the commission has imposed additional requirements for
facilities housing class III mammals, it does not impose any additional requirements for
facilities housing class III birds. Id. 68A-6.003(2) (2010). Further, and in contrast to the
requirements imposed on class I and class II wildlife in the past, the rule does not
require applicants to show that the required cages and enclosures would not be
prohibited by a county of municipal ordinance. Id. In place of such a requirement, the
rule directs the commission’s staff to provide notice of a permit application to the county
or municipality in which a proposed Class I or Class II wildlife facility is located.8 Id.
Under the commission’s rules, once it issues by a permit, the licensee is authorized to
possess wildlife at the location identified in the permit. Id. 68A-6.0022(1).
C. Intersection of the Regulation of Land Use and Captive Wildlife
Plaintiffs’ main legal theory is that the portions of Orange County’s zoning
ordinances that regulate commercial aviculture conflict with the Florida Constitution’s
grant of regulatory and executive authority over captive wildlife to the Fish and Wildlife
Conservation Commission. Orange County, in contrast, casts this as a question of
preemption. That is not the correct legal analysis, however. Under the correct analysis,
the Court must ask first whether the commission is provided with constitutional authority
over the subject matter of the challenged ordinance. If it is, then the ordinance is invalid.
If not, then the Court must determine whether the scope of the statute is limited to
8

The rules do not provide for such notice when the application is to possess
class III wildlife.

12

subjects that fall outside of the commission’s constitutional authority.
In Whitehead v. Rogers, 223 So. 2d 330 (Fla. 1968), the Supreme Court of
Florida considered a conflict between the constitutional grant of power given to the
Game Commission by the Florida Constitution of 1885 to regulate hunting seasons and
a state statute of general application. A hunter was arrested for violating a statute that
prohibited the discharge of firearms on Sundays. Id. at 331. The hunter possessed a
valid hunting license issued by the Game Commission that authorized the licensee to
hunt from a certain date to a certain date. Id. 330. One of the authorized dates was a
Sunday. Id. Because the state legislature could enact only “laws in aid of, but not
inconsistent with,” the Game Commission’s constitutional grant of authority, the court
reasoned that the statute was void to the extent it prohibited an activity that was
expressly authorized by the Game Commission. Id. at 330–31.
In Askew v. Game and Fresh Water Fish Commission, 336 So. 2d 556
(Fla. 1976), the Court was asked to void statutes which purported to allow a state
agency to introduce non-native fresh water fish into Florida’s waters without first
obtaining a permit from the Game Commission. In reaching its decision, the court first
construed the Game Commission’s constitutional grant of authority, which provided that
the “commission shall exercise the nonjudicial powers of the state with respect to wild
animal life and fresh water aquatic life.” Id. at 559 (construing Art. IV, § 9 of the Florida
Constitution of 1968). The court noted that, “standing alone, . . . . Article IV, Section 9 of
the Florida Constitution would require that the challenged statutes be held
unconstitutional.” Id. at 560. Nevertheless, the court noted that another constitutional
provision provided the legislature with the power protect the state’s natural resources.
Id. Reasoning that the constitution should be read as a whole and that each of its parts

13

should be given meaning, the court concluded that the challenged statutes were a valid
exercise of legislative authority granted by the second constitutional provision. Id.
The scope of authority granted to the Game Commission was challenged again
in Airboat Association of Florida, Inc. v. Florida Game and Fresh Water Fish
Commission, 498 So. 2d 629 (Fla. 1986). In that case, the Game Commission had
promulgated rules that restricted the use of dogs and all-terrain vehicles for hunting
wildlife in the Big Cypress Wildlife Management Area. Id. at 630. The petitioners
challenged the rules under the state administrative procedure act; however, the court
noted that the Game Commission, as a constitutional body, was not an agency within
the meaning of the administrative procedure act. Id. at 631. The court also noted that
the rules promulgated by the Game Commission were not rules but rather were “in the
nature of legislative acts.” Id. at 632.
Most recently, the Supreme Court of Florida construed the scope of the current
commission’s authority over all marine wildlife in Caribbean Conservation Corp. v.
Florida Fish & Wildlife Conservation Comm’n, 838 So. 2d 492, 497–99 (Fla. 2003). In
that case, a conservation group challenged certain statutes that purportedly usurped the
commission’s constitutional authority. Id. at 494. The court explained that, to determine
whether a challenged statute is constitutional, a court must first determine whether the
Florida Constitution provides the commission with constitutional authority over the
subject matter of the statute. Id. at 500–01. If not, then the court should consider
whether the scope of the statute is limited to subjects that fall outside of the
commission’s constitutional authority. Id. Using this framework, the court looked to the
language used in the Florida Constitution and construed it “consistent with the intent of
the framers and the voters.” Id. at 501. The court also endeavored to read multiple

14

constitutional provisions in pari materia to ensure that each is given a consistent and
logical meaning. Id.
In sum, Florida law provides that the state legislative power over captive wildlife
was transferred to the Florida Fish and Wildlife Conservation Commission. Art. IV, § 9,
Fla. Const.; see also Sylvester v. Tindall, 18 So. 2d 892, 900 (Fla. 1944). The effect of
the transfer of that portion of the state’s legislative power was to divest the state
legislature of authority to regulate the possession and sale of captive wildlife, Beck v.
Game and Fresh Water Fish Commission, 33 So. 2d 594, 595 (Fla. 1948), and vest that
power in the commission, State ex rel. Griffin v. Sullivan, 30 So. 2d 919, 920 (Fla.
1947).9 The commission therefore assumed the regulatory authority that the legislature
had prior to the transfer. Caribbean Conservation, 838 So. 2d at 497. As such, the rules
adopted by the commission are tantamount to legislative acts, Airboat Ass’n of Florida,
Inc., 498 So. 2d at 630, and become the governing law of the state, Griffin, 30 So. 2d at
920. Any and all laws in conflict with the commission’s rules are consequently void.
Whitehead, 223 So. 2d at 330–31.
Applying these principles, the Court concludes that Orange County cannot use its
land use ordinances to regulate the possession or sale of captive wildlife. Those
ordinances specifically seek to prohibit the use of Plaintiffs’ residence for “commercial
aviculture, aviaries” and the “breeding, keeping, and raising of exotic animals.” Ch. 38,

9

As the Florida Attorney General concluded shortly after the adoption of the
Constitution of 1968, the commission has “replaced the legislature as the representative
of the people.” Op. Att’y Gen. Fla. 72-41 (1972). “The commission’s decisions are the
law” when its regulations concern “wild animal life and fresh water aquatic life” in
Florida. Id.

15

Art. IV, § 38-78, OCC; Id. Art. VI, § 38-304, OCC.10 Those land uses specifically target
activities that fall within the exclusive authority of the commission,11 whose rules on the
topic are the governing law of the state. Orange County’s prohibitions against land uses
such as “commercial aviculture, aviaries” and “breeding, keeping, and raising of exotic
animals” are in direct conflict with the commission’s rules, which impose an obligation
on the breeders of exotic birds to maintain a commercial enterprise. For this reason,
Orange County’s ordinances, to the extent that they regulate captive wildlife, and more
specifically commercial aviculture, are inconsistent with general law and are therefore
void.12 See, e.g., Grant, 935 So. 2d at 523 (holding a charter county in Florida may only
“enact county ordinances not inconsistent with general law”).
Even if the Court were to accept Orange County’s characterization of its
ordinances as generally applicable—which it does not because the ordinances are not
crafted in that way—Orange County still could not enforce its ordinances banning
commercial aviculture against Plaintiffs. See Whitehead, 223 So. 2d at 330–31. In
10

Moreover, in its papers, Orange County admits that its ordinances specifically
prohibit Plaintiffs from keeping, breeding, and raising exotic animals at their residence in
addition to commercial aviculture. (Doc. 287, pp. 2–3.)
11

Thus, the case of City of Miramar v. Bain, 429 So. 2d 40, (Fla. 4th DCA 1983),
is inapposite because the ordinances in that case did not specifically seek to regulate
the possession of captive wildlife.
12

Indeed, Florida’s Attorney General came to the same conclusion when he was
asked to opine whether a non-charter county could enjoin “the possession, breeding or
sale of non-indigenous exotic birds” using the county’s land use ordinances. Op. Att’y
Gen. Fla. 2002-23 (2002). Tellingly, Orange County has made no attempt in any of the
papers filed in this case to distinguish its ordinances from those analyzed in the
Attorney General’s opinion, nor has Orange County attempted to explain why this Court
should not be persuaded by the Attorney General’s interpretation of Florida law. An
opinion’s arguments need not be compulsory in order to be compelling. While all too
common, this ostrich-like tactic is generally not considered persuasive advocacy. See,
e.g., Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011) (noting that
the “ostrich is a noble animal, but not a proper model for an . . . advocate.”).

16

Whitehead, the Florida Supreme Court held that a statute prohibiting shooting on
Sunday was void to the extent it prohibited an activity that was specifically authorized by
the Game Commission. Id. at 330–31. Like the hunter in Whitehead, who was issued a
permit by the Game Commission that authorized him to hunt on Sunday, Plaintiffs were
issued a permit by the commission authorizing them to possess and sell class III birds
from their residence. See id. Thus, like the statute in Whitehead, Orange County’s
ordinances are void to the extent such ordinances prohibit Plaintiffs from possessing
and selling class III birds from their residence. See id.
* * * * *
For these reasons, the Court concludes that Plaintiffs are entitled to summary
judgment on their state law declaratory judgment claims that Orange County’s
ordinances are void.
II. Plaintiffs’ Federal Claims
The Court construes the amended complaint as bringing five federal claims, each
of which is discussed below.
A. Due Process
The Due Process Clause of the Fourteenth Amendment provides that no State
shall “deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The Supreme Court has interpreted this clause to provide for
two different kinds of constitutional protection: substantive due process and procedural
due process. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc).
Plaintiffs bring only substantive due process claims, which this Court must carefully
analyze to determine the nature of the rights of which Plaintiffs have been deprived.
DeKalb Stone, Inc. v. County of DeKalb, 106 F.3d 956, 959 (11th Cir. 1997).

17

Plaintiffs assert two possible bases for their claims.13 They contend first that
Orange County’s zoning ordinances are ultra vires and, therefore, are arbitrary and
irrational. (Doc. 162, ¶ 57.) Plaintiffs also contend that Orange County’s decision to
uphold the zoning manager’s determinations that a commercial aviary is not a
permissible use of a residential-only zoned property, and that a commercial aviculture
operation also cannot be a home occupation are substantive due process violations.
(Id. ¶ 94.)
In order to address these claims, the Court will first review the law applicable to
substantive due process claims. The Court will then apply that law to the two possible
bases for Plaintiffs claims to see if they can state a claim under federal law. Then, the
Court will discuss whether Plaintiffs’ chief complaint—that Orange County’s zoning
ordinances are ultra vires—may state a substantive due process claim.
1. Applicable Law
The substantive component of the Due Process Clause protects those rights that
are fundamental—that is, rights that are “implicit in the concept of ordered liberty.”
McKinney, 20 F.3d at 1556. Fundamental rights are those protected by the U.S.
Constitution. Id. Substantive rights that are created by state law are generally not
subject to substantive due process protection. Id. Land use regulations like those at
issue in this case are state-created rights that are not protected by substantive due
process. Greenbriar Village, L.L.C. v. Mountain Brook, 345 F.3d 1258, 1262 (11th Cir.
13

The Court concludes without further analysis that a third possible basis—the
actions of the county code enforcement personnel and the outcome of the code
enforcement board proceeding—cannot support a substantive due process claim.
Furthermore, because Plaintiffs have refused to characterize their challenge as a
regulatory takings claim, the Court declines to analyze their substantive due process
challenge as a regulatory taking claim.

18

2003). There is an exception to this general rule, however. 14
If a person’s state-created rights are infringed by a “legislative act,” the
substantive component of the Due Process Clause will protect that person from a
government’s arbitrary and irrational action. Lewis v. Brown, 409 F.3d 1271, 1273 (11th
Cir. 2005). The availability of this type of claim turns on the legislative nature of the
government’s action. If the action is executive in nature, then violations of state-created
rights cannot support a substantive due process claim, even if the plaintiff alleges that
the government acted arbitrarily and irrationally. Greenbriar Village, 345 F.3d at 1263.
The Eleventh Circuit describes executive acts as those acts that “apply to a
limited number of persons (and often only one person)” and which “typically arise from
the ministerial or administrative activities of members of the executive branch.”
McKinney, 20 F.3d at 1557 n.9. An example of an executive act that is not subject to
substantive due process is the enforcement of existing zoning regulations. DeKalb
Stone, Inc., 106 F.3d at 959. Legislative acts, in contrast, “generally apply to larger
segments of—if not all—society.” Id. The Eleventh Circuit cites “laws and broad-ranging
executive regulations” as common examples of legislative acts. Id.
2. Can Plaintiffs State a Claim?
In this case, the first basis for Plaintiffs’ substantive due process claim can be
construed as a challenge of a legislative act. It is a claim that Orange County has
attempted to regulate land use in a manner that it could not under the organic law of
Florida. The zoning ordinances challenged by Plaintiffs apply to all the real property
14

Plaintiffs recognize and raise this exception to the general legal principle.
Orange County, however, failed to address the legislative act exception in its papers,
relying instead on the general principle that state-created rights cannot form the basis of
a substantive due process claim.

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located in the county. They are broad-ranging and applicable to a large portion of
county residents.
The second basis for Plaintiffs’ claim, however, requires closer scrutiny. Plaintiffs
challenge Orange County’s decision to uphold the determinations of the county zoning
manager that a commercial aviary is not an authorized use in the residential zoning
category applicable to Plaintiffs’ residence, and that operation of a commercial aviary is
not an authorized home occupation under the zoning regulations. The chain of events
began when Plaintiffs requested an “official determination” from the zoning manager as
to whether the operation of a commercial aviary at their residence was permitted by the
zoning code. (Decl. ¶¶ 67–69.) The zoning manager concluded that a commercial aviary
was not permitted in the residential-only zoned areas. (Id. ¶ 81.) Plaintiffs appealed to
the Board of Zoning Adjustment, which upheld the zoning manager’s interpretation of
the zoning ordinances. (Id. ¶¶ 85, 92.) Plaintiffs then appealed part of the board’s
decision to the Board of County Commissioners. (Decl. ¶ 101.)
At bottom, the second factual basis for Plaintiffs’ substantive due process claim is
a dispute over how Orange County interprets its existing zoning ordinances. Plaintiffs
sought to persuade the county that a commercial aviary would be a permissible use of
their residentially zoned property or that a home occupation (as that term is used in the
zoning ordinances) could encompass the operation of a commercial aviary. They were
unsuccessful. The county zoning manager, the country Board of Zoning Adjustments,
and the Board of County Commissioners all decided that Plaintiffs’ interpretation of the
existing zoning ordinances was incorrect. The interpretation of existing laws is not a
legislative function; it is an executive act usually intertwined with an enforcement

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action.15 While Plaintiffs asked the county directly for an interpretation in this case, the
nature of the action is the same—the county was interpreting the existing law. 16 That is
an executive act that cannot serve as the basis for a substantive due process claim.
Thus, to the extent Plaintiffs can bring a substantive due process claim, such
claim must be based on the contention that the enactment of Orange County’s land use
ordinances was an arbitrary and irrational legislative act.
3. Do Plaintiffs Support Such a Claim?
As discussed above, the provisions of Orange County’s land use ordinances that
regulate captive wildlife are void. The ordinances are also unenforceable against the
holders of permits issued by the commission that authorize the possession and sale of
captive wildlife at a particular facility. These ordinances do not, however, implicate
fundamental rights protected by the substantive component of the Due Process Clause.
The ordinances implicate only property rights, which are the creature of state law.
Where a person’s state-created rights are infringed by a legislative act, the Due
15

The ordinance that created Board of Zoning Adjustment tasked it with, among
other things, hearing and deciding “appeals taken from the requirement, decision or
determination made by the planning or zoning department manager where it is alleged
that there is an error in the requirement, decision or determination made by said
department manager in the enforcement of zoning regulations.” Art. V, § 502, Orange
County Charter (emphasis added).
16

The Eleventh Circuit reached a similar conclusion in Boatman v. Town of
Oakland, 76 F.3d 341 (11th Cir. 1996), when it rejected a property owner’s assertion
that he had a substantive due process “right to a correct decision from a government
official.” In that case, a building inspector decided that the property owner’s building was
a mobile home that was prohibited by the applicable zoning ordinance. Id. at 345. The
inspector therefore refused to inspect the property and issue a certificate of occupancy.
Id. The property owner, who was also a member of the town zoning board, disagreed
with the building inspector’s interpretation of the zoning ordinance. Id. When the town
council agreed with the inspector’s interpretation of the ordinance, the property owner
sued, arguing that the town’s refusal to perform the inspection was arbitrary in violation
of their federal due process rights. Id. The Eleventh Circuit concluded that such a “claim
is not cognizable under the substantive component” of the Due Process Clause. Id.

21

Process Clause protects that person from arbitrary and irrational governmental action.
Lewis, 409 F.3d at 1273. As there is no evidence in the record that enactment of
Orange County’s land use ordinances targeted a protected class, the Court must apply
the rational basis test. See Schwarz v. Kogan, 132 F.3d 1387, 1390 (11th Cir. 1998)
(holding substantive due process claims that do not involve a person’s fundamental
rights are reviewed under the highly deferential rational basis standard). “In order to
survive this minimal scrutiny, the challenged provision need only be rationally related to
a legitimate government purpose.” Id. at 1390–91. The Court must first identify “a
legitimate government purpose . . . which the enacting government body could have
been pursuing.” Bannum, Inc. v. City of Fort Lauderdale, 157 F.3d 819, 822 (11th Cir.
1998) (internal quotations omitted) (emphasis in original). The Court must then
determine “whether a rational basis exists for the enacting government body to believe
the legislation would further the hypothesized purpose.” Id. So long as there is a
“plausible, arguably legitimate purpose” for the enactment of Orange County’s land use
ordinances, summary judgment is appropriate unless Plaintiffs can demonstrate that the
county could not possibly have relied on that purpose. Restigouche, Inc. v. Town of
Jupiter, 59 F.3d 1208, 1214–15 (11th Cir. 1995).
Orange County advances a plausible, reasonable, and sound purpose—to
promote the health, safety, and welfare of its citizens—to support its land use
ordinances. Plaintiffs fail to demonstrate that the county could not possibly have relied
on that purpose—indeed, they advance no evidence whatsoever that Orange County
was not motivated to protect the health, safety, and welfare of its citizens when the land
use ordinances were enacted.
Accordingly, the Court finds it appropriate to grant summary judgment in favor of

22

Orange County and against Plaintiffs on their substantive due process claims.17
B. Equal Protection
To prevail on their class of one equal protection claim, Plaintiffs must show
evidence that they were intentionally treated differently from others who were “similarly
situated” and that there was no rational basis for the difference in treatment. Grider v.
City of Auburn, 618 F.3d 1240, 1263–64 (11th Cir. 2010). A similarly situated
comparator must be defined and identified precisely; a plaintiff cannot rely upon “broad
generalities” to establish his claim. Id.
In this case, Plaintiffs suggest that the proper comparator is commercial
businesses that are authorized land uses in residential zoned areas. The Court
disagrees. The similarly situated requirement must be rigorously applied in the context
of a class of one claim. Lieb v. Hillsborough Cnty. Public Transp. Comm’n, 558 F.3d
1307, 1307 (11th Cir. 2009). Here, the comparison is not between commercial aviaries
and all other businesses. The proper comparator is a person who the county allows to
possess and sell captive wildlife from a property that is zoned residential only. Plaintiffs
do not identify, and advance no evidence of, any such similarly situated comparator.
Therefore, the Court finds summary judgment is due to be granted in favor of
17

It may seem incongruent to conclude that an ordinance is void under state law
while at the same time finding that the substantive component of the Due Process
Clause are not violated by the void ordinance. The fact is, however, that the only
substantive due process claim that is viable here—a claim that a legislative act violated
due process—does not rise or fall on the lawfulness of the state legislation. In other
words, this type of substantive due process claim is not a challenge to the ordinance
qua ordinance. Rather the claim is based upon the arbitrary and capricious action of the
government in enacting the ordinance. See, e.g., Villas of Lake Jackson, Ltd. v. Leon
Cnty., 121 F.3d 610, 615 (11th Cir. 1997) (holding that a “substantive due process claim
based upon the arbitrary and capricious action of the government in adopting the
regulation” is one of only four causes of actions for violations of an individual’s
constitutional rights arising in the context of “zoning regulations governing a specific use
of real property”).

23

Orange County and against Plaintiffs on their equal protection claims.
C. Compelled Speech
Plaintiffs claim that Orange County’s land use special exception requirement and
determination procedure violate their rights under the First Amendment.18 The Court
understands this claim to be that, by requiring Plaintiffs to submit to the special
exception procedure, the ordinances force Plaintiffs to engage in speech—that is, the
engagement of land use proceedings—that they prefer not to participate in. The Court
also understands Plaintiffs to claim that they were compelled to request a determination
from the zoning manager to challenge the validity of the ordinances. Neither of these
arguments can form the basis for a claim under the compelled speech doctrine.
It has long been held that the First Amendment prohibits the government from
compelling citizens to express beliefs that they do not hold, see, e.g., West Virginia
State Bd. of Ed. v. Barnett, 319 U.S. 624 (1943) (holding that school children could not
be forced to recite the pledge of allegiance), and prevent the stifling of “speech on
account of its message,” Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642
(1994). Zoning regulations that are content-neutral are not compelled speech. See, e.g.,
Demarest v. City of Leavenworth, 876 F. Supp. 2d 1186, 1197 (E.D. Wash. 2012)
(concluding zoning restrictions on signage do not compel land owners to engage in
speech). Orange County’s land use procedures are content-neutral in that they do not
18

The Court assumes that Plaintiffs’ compelled speech, commercial speech, and
search and seizure claims are ripe and sufficiently defined to permit adjudication
because Orange County’s ripeness arguments address only the substantive due
process claims. There is some doubt whether all of Plaintiffs’ other federal claims are
justiciable, however, because some claims are based on Plaintiffs’ objections to the
special exception requirement of Orange County land use regulations. Under the Code,
that procedure can be used only in connection with Plaintiffs’ rural property. The Court
will consider Plaintiffs’ claim on the merits nonetheless.

24

direct the content of such speech, nor do they compel any land owner to engage in
speech. The special exception requirement is the process that a land owner must
engage if he wishes to be authorized to use his property in a particular manner.
Likewise, Plaintiffs were not required to seek a determination from the zoning manager
to challenge the validity of the ordinances. Plaintiffs fail to state a compelled speech
claim.
The Court therefore finds summary judgment is due to be granted in favor of
Orange County and against Plaintiffs on their compelled speech claims.
D. Commercial Speech
Plaintiffs also claim that section 38-1 of the Orange County Code is an
impermissible prior restraint of their commercial speech rights. Orange County argues
that the zoning manager’s determination that Plaintiff could not maintain a commercial
aviary at their residence did not “censor” Plaintiffs’ commercial speech. (See, e.g., Doc.
261, p. 23.) Despite Orange County’s failure to squarely address Plaintiffs’ commercial
speech claim, 19 the Court must consider whether there is a legal basis for such claim.
The First Amendment, as applied to the States through the Fourteenth
Amendment, protects commercial speech from unwarranted governmental regulation.
See, e.g., Virginia Pharmacy Bd. V. Virginia Citizens Consumer Council, 425 U.S. 748,
19

The briefing in this action is particularly troubling. Plaintiffs, who do not have
the benefit of counsel, have framed their clams to avoid most common pitfalls and have
raised some valid arguments in response to Orange County’s legal positions (such as
the legislative act exception to the prohibition on substantive due process claims for
state-created rights). Orange County, which is represented by counsel, by contrast
repeatedly fails to address the exact claims raised by Plaintiffs or the legal authorities
identified by Plaintiffs that are adverse to Orange County’s positions. Portions of Orange
County’s briefs are supported by no legal authority whatsoever. The Court will not
speculate as to why Orange County chose to brief the case in this manner. The Court
does note, however, that the county’s choice has caused this action to consume more
judicial resources than are typically required to adjudicate pro se actions.

25

761–62 (1976). Commercial speech, however, “enjoys a limited measure of protection,
commensurate with its subordinate position in the scale of First Amendment values, and
is subject to modes of regulation that might be impermissible in the realm of
noncommercial speech.” Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995).
Indeed, the seminal case in this area, Central Hudson Gas & Electric Corp. v. Public
Service Commission of New York, 447 U.S. 557, 571 n.13 (1980), observed “that
commercial speech is such a sturdy brand of expression that traditional prior restraint
doctrine may not apply to it.”
The Court need not reach that far, however, because it concludes that section
38-1 of the Orange County Code does not regulate commercial speech. That provision
of the Code contains the definition that Orange County uses to determine when real
property is being used for the purposes of commercial aviculture. It is this activity that is
regulated by the Code, not commercial speech. As a result the First Amendment is not
implicated. See ABC Home Furnishings, Inc. v. Town of E. Hampton, 947 F. Supp. 635,
643 (E.D.N.Y. 1996) (holding that a town’s revocation of an event permit did not give
rise to a commercial free speech claim because, while the town did receive complaints
about the event advertising, the town’s revocation was an effort to regulate the event,
“i.e., the activity underlying the speech, not the speech itself”); see also Jim Gall
Auctioneers, Inc. v. City of Coral Gables, 210 F.3d 1331, 1333 (11th Cir. 2000) (noting
that the “right to hold an auction” is arguably not protected commercial speech).
Plaintiffs fail to state a commercial speech claim.
Therefore, the Court finds summary judgment is due to be granted in favor of
Orange County and against Plaintiffs on their commercial speech claims.

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E. Search and Seizure
Lastly, Plaintiffs claim that they were subjected to an unreasonable search and
seizure that violated their rights under the Fourth Amendment. They contend that the
special exception requirement subjects them to “search by public hearing” and the
“seizure of fees.” They also contend that the county’s zoning determination procedure is
an unreasonable search and seizure.
First, Plaintiffs cannot establish that the hearing procedures for a special
exception and a zoning determination are protected by the Fourth Amendment. Plaintiffs
have no expectation of privacy in relation to such hearings. Indeed, “[w]hat a person
knowingly exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967).
Plaintiffs knowing and voluntary engagement of these proceedings take them outside
the protections of the Fourth Amendment.
Second, the voluntary payment of governmental fees is not subject to protection
under the Fourth Amendment. See, e.g., Fox v. District of Columbia, No. 10-2118, 2013
WL 563640, at *3 (D.C.D.C. Feb. 15, 2013) (holding that the voluntary payment of a fee
in a procedure that allows a arrestee to pay and forfeit the fee for immediate release
from jail without prosecution is not protected under the Fourth Amendment). To
establish an unlawful seizure, Plaintiffs must demonstrate that the payment of the fees
constitutes a seizure that is unreasonable. Soldal v. Cook Cnty., 506 U.S. 56, 61–62
(1992). “A seizure is not unreasonable if it occurs with the non-coercive, voluntary
consent of the owner.” Fox, 2013 WL 563640, at *3 (citing Schneckloth v. Bustamonte,
412 U.S. 218 (1973)). Here, both the special exception and the zoning determination
procedures used by Orange County are proceedings that a land owner must voluntarily

27

initiate. The payment of fees associated with such proceedings is likewise voluntary and
therefore outside the protections of the Fourth Amendment. Plaintiffs do not state a
claim for the violations of their rights under the Fourth Amendment.
The Court therefore finds summary judgment is due to be granted in favor of
Orange County and against Plaintiffs on their search and seizure claims.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Orange County’s Motion to Dismiss (Doc. 175) is DENIED AS MOOT.

2.

Orange County’s Dispositive Motion for Summary Judgment (Doc. 261) is
GRANTED IN PART and DENIED IN PART.

3.

Plaintiffs’ Motion for Summary Judgment and Partial Summary Judgment
(Doc. 269) is GRANTED IN PART and DENIED IN PART.

4.

The Court grants summary judgment in favor of Plaintiffs and against
Defendant Orange County on Plaintiff’s state-law declaratory judgment
claims that Orange County’s land use regulations are unlawful. As
discussed in this Order, the portions of Orange County’s land use
regulations that prohibit “commercial aviculture, aviaries” and “breeding,
keeping, and raising of exotic animals” are inconsistent with general law of
Florida and are therefore void. The Court grants summary judgment in
favor of Orange County and against Plaintiffs on all of the remaining
claims.

5.

The sole remaining issue in this action is the remedy available pursuant to
Plaintiffs’ state law declaratory judgment claim. The parties are directed to
confer and advise the Court on or before September 6, 2013, of the

28

remedies available to Plaintiffs under state law.
6.

The trial and pretrial hearing dates are vacated, as are all deadlines
except those imposed in this Order. The clerk is directed to terminate any
motion that remains pending after entry of this Order.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 13, 2013.

Copies:
Counsel of Record

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