Sweet Sage Cafe, LLC et al v. Town of North Redington Beach, Florida et al
Filing
98
ORDER granting 71 Motion for Partial Summary Judgment; granting in part and denying in part 73 Motion for summary judgment; granting 81 Motion for summary judgment. See attached order. Signed by Judge William F. Jung on 3/29/2019. (JHA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SWEET SAGE CAFÉ, LLC,
JOHN MESSMORE, SHERMEE, LLC,
and SS16725, LLC,
Plaintiffs,
v.
Case No. 8:18-cv-01080-T-02CPT
TOWN OF NORTH REDINGTON BEACH,
FLORIDA, and SHERIFF BOB GUALTIERI
in his official capacity as PINNELAS COUNTY
SHERIFF,
Defendants.
_____________________________________/
ORDER
This case concerns alleged First Amendment retaliation through
administrative code inspections and the constitutionality of a revised city ordinance
authorizing such inspections. The matter comes to the Court on cross-motions for
summary judgment from Plaintiffs, Dkt. 71, Defendant Town of North Redington
Beach (the “Town”), Dkt. 73, and Defendant Sheriff Bob Gualtieri in his official
capacity as Pinellas County Sheriff (the “Sheriff”), Dkt. 81. The parties have filed
responses to the opposing motions. The Court GRANTS Plaintiffs’ motion for
partial summary judgment, GRANTS the Sheriff’s motion, and GRANTS and
DENIES in part the Town’s motion.
BACKGROUND
Incorporated in 1953, the Town is a beachside community, one square mile
in size, with approximately 1,427 full-time residents. Dkt. 82-6 at 48. A fivemember Commission, including Mayor Queen, governs the Town. Id. at 53. The
Town has four employees: Town Clerk Campbell, Deputy Clerk Schmader, Public
Works Projects employee Lewis, and a groundskeeper. Id. at 48. Since 2013, the
law firm Trask Daigneault has been “the retained Town Attorney,” and Jay
Daigneault of the firm has been appointed as the Town Attorney. Dkt. 82-8 at 3.
Plaintiff Sweet Sage Café, LLC (“Sweet Sage”) operates a restaurant named
Sweet Sage Café (the “Café”) in the Town. Dkt. 56 at ¶ 3. Plaintiff Messmore
owns and manages the Café with his wife. Id. The Café, which closes at 2:00 p.m.,
offers breakfast and lunch in a “casual Florida beach-themed setting.” Id. It also
features a gift shop. Dkt. 82-4 at 2.
The Café displayed various signs outside, including some for which Sweet
Sage was issued a Notice of Violation (NOV) of a sign ordinance. Complaint,
Sweet Sage Cafe, LLC v. Town of N. Redington Beach, Florida, 8:15-CV-2576-T30JSS (M.D. Fla. Nov. 2, 2015), ECF: 1 at 3, 9. In November 2015, Sweet Sage
sought a declaration that the Town’s sign ordinance, adopted in June 2015,
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violated the First Amendment. Id. at 9. On January 27, 2017, the district court
entered summary judgment, agreeing that the ordinance was unconstitutional.
Sweet Sage Cafe, LLC, 2017 WL 385756, at *1 (M.D. Fla. Jan. 27, 2017).
Sweet Sage has contested other Town ordinances as well. To confront its
shortage of public parking, the Town has an off-street parking ordinance,
Ordinance 2009-685, that requires at least one parking space for every four seats in
an establishment. Dkt. 73-8 at 2-3. Before 2009, one space was required for every
three seats. Id.; Dkt. 82-6 at 66. The new ordinance grandfathered the number of
nonconforming seats as of September 10, 2009 but did not allow additional seats
without additional on-site parking. Dkt. 73-8 at 3. To determine the grandfathered
numbers, the Town’s former code enforcement officer, Mr. Lewis, counted seats at
the existing bars, lounges, and restaurants. Dkt. 82-6 at 67. The Town Clerk
created a typed chart from the handwritten results, which was then included as an
attachment to the ordinance. Id. at 18-20, 68. Mr. Lewis, along with Mr.
Messmore, counted 61 seats at the Café. Dkt. 82-1 at 22.
In 2016, the Town contracted with the Sheriff to enforce code violations,
including the parking ordinance. Dkt. 56-1. Deputy Clerk Schmader serves as the
secretary for code enforcement, which includes typing up forms for the officer and
taking and forwarding complaints. Dkt. 84-1 at 12. Beginning in July 2016, Deputy
Joshua Short was the Town’s code enforcement officer. Dkt. 82-3 at 2. In March or
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April 2017, Corporal Chris Kohmann assumed code enforcement duties for the
Town. Dkt. 82-2 at 2.
The code enforcement officer exercises some discretion in enforcing code
violations. For example, only the officer is authorized to determine that a code
violation has occurred and to issue a NOV. Dkt. 84-1 at 3, 25. The officer also
determines the method by which notice is served, the length of time for compliance
before the case is set for an enforcement hearing before the Special Magistrate, and
whether compliance is met upon re-inspection. Dkt. 84-1 at 6. Deputy Short and
Corporal Kohmann have visited the Café a number of times to assess compliance
with the parking ordinance.
To apply for an annual business tax receipt (basically a business permit)
from the Town, a restaurant, bar, or lounge must list its number of seats on the
application. Dkt. 56-4 at 3. There is also an annual inspection. Dkt. 84-1 at 12. For
seat counts at grandfathered establishments, Deputy Clerk Schmader gives the
code enforcement officer a copy of the parking ordinance and “a copy of their
business tax receipts to go to every restaurant.” Id. at 12-13. Until the most recent
application, since 2010 Mr. Messmore had attested on his business tax receipt
applications that the Café has 61 seats, Dkt. 74-4 at 2-12, and had been issued an
occupational license for the same, Dkt. 75-1 at 9-17.
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A Special Magistrate hearing followed an April 19, 2018 NOV issued to the
Café for noncompliance with the parking ordinance. Dkt. 75-2. On May 29, 2018,
the Magistrate found that the Town failed to prove that the Café had exceeded its
designated 61 seats. Id. at 14. The order “noted that nothing in the Town . . . Code .
. . specifies a formula for calculating the number of seats based on the length of a
bench seat.” Id. at 10-11. In response, the Town adopted Ordinance 2018-801,
which did not alter the grandfathered seating allotments. Dkt. 75-3; Dkt. 82-6 at
30-31; Dkt. 82-8 at 12-13. As represented by counsel at oral argument, litigation
concerning the Town’s parking ordinance is ongoing in the Florida state courts.
In 2016 Mr. Messmore, through Plaintiff Shermee, LLC, purchased a vacant
lot approximately 150 feet north of the Café. Dkt. 82-5 at 14. He hoped to use the
property as off-site parking for Café customers. Id.; Dkt. 82-4 at 5. “[H]e said that
after 2:00 when [the Café] closed, then anybody could use it to park there to go to
the beach. It was definitely for Sweet Sage up until 2:00 when they closed.” Dkt.
82-6 at 65.
The Town’s zoning code, however, did not allow parking as a primary use of
property at the location. Dkt. 83-1 at 2. Mr. Messmore sought to rezone the lot. Id.
at 6. The Town directed Mr. Messmore to section 98-3 of the Town Code, noting
“You may want to check with your attorney for procedural steps.” Id. At a
November 10, 2016 Commission meeting, Mr. Messmore presented materials in
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support of the rezoning. Id. at 20. According to a memorandum by the Town
Attorney, no action was required based on the presentation.1 Id. at 18-19. The
Mayor scheduled a workshop for January 5, 2017 to discuss the proposal. Id. at 30.
At the workshop, the Commission conditioned the rezoning of the property
on Mr. Messmore not adding “statuary, trellis[es], art or anything that draws
attention to the parking area” to the lot. Dkt. 83-1 at 41. Mr. Messmore returned to
the Commission on January 12, 2017 with paperwork including a draft of a
rewritten ordinance. Id. at 42; Dkt. 82-6 at 59. The Mayor initially scheduled
another workshop for February 7, 2017 that was later canceled. Dkt. 82-6 at 28.
“[A]s the Commissioners came in and said, what’s the workshop about and [Town
Clerk Campbell] told them, they were like, why are we doing this, he’s already
said he doesn’t agree to [the conditions] and he’s already showed us at the last
meeting he doesn’t agree to it. So, they didn’t want to do [another workshop].” Id.
at 59-60.
Mr. Messmore abandoned the parking lot proposal and sought to build a new
business on the lot called the Sugar Shack. Dkt. 82-6 at 62-63. This required two
variances and the approval of a site plan, which was eventually completed. Id. at
Under the Town’s code, rezoning could be initiated by the Commission, recommended by the Planning
and Zoning Board, or the owner could obtain signatures of support from 51% of the owners in the
affected area. Id.; Dkt. 82-8 at 36.
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63-64. The Commission approved the site plan with conditions, and Mr. Messmore
has begun construction. Dkt. 82-5 at 14-15.
PROCEDURAL HISTORY
On May 3, 2018, Plaintiffs filed their original complaint for First
Amendment retaliation against the Town and unreasonable search and seizure
against the Town and Sheriff. Dkt. 1 at 7-8. The next day Plaintiffs sent a letter to
the Town advising it that officers could no longer enter the Café to conduct code
enforcement inspections without a lawfully issued warrant. Dkt. 75-4 at 18. On
May 10, 2018, the Town Attorney responded with a letter stating the Town’s
Business Tax Code permitted the officers to enter without a warrant. Dkt. 56-2. In
response, Plaintiffs amended their complaint to challenge the constitutionality of
the warrantless search provisions of the Business Tax Code. Dkt. 23 at 12.
Plaintiffs also added a state law trespass claim against the Town and the Sheriff.
Dkt. 23 at 14.
On October 11, 2018, the Town adopted Ordinance 2018-804 which
amended the Town’s Business Tax Code. Dkt. 75-4 at 2-11. According to the
Town, the amendment’s purpose was to address the warrantless inspection
provisions subjected to constitutional challenge. Dkt. 82-8 at 32. The amendment
authorizes, among others things, warrantless administrative inspections of
businesses:
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[e]ngaged in a closely-regulated industry and where the
inspector has a reasonable good faith belief, based upon a
record of non-compliance or other verifiable evidence of
probable non-compliance to include citizen complaints,
that providing advance notice of the inspection may
allow the business to conceal the code violation which is
the subject of the inspection.
Code of the Town of North Redington Beach, Florida, § 66-45(c)(3). The
Code defines the term “closely regulated industry” as: “[a] firearms retailer . . . ;
[a] business which is licensed and regulated by the Florida Beverage Law as
defined in Florida Statutes § 561.01(6); and [a] public food service establishment
licensed under Florida Statutes Chapter 509.” § 66-45(g). The record is clear there
is no firearms dealer in the Town and the Town does not actually regulate gun
dealers or the Florida Beverage Law.
The Town also modified its business tax receipt application (effectively a
business permit) to require businesses to consent to warrantless inspections as a
condition of the “privilege of conducting business within the Town.” Dkt. 84-1 at
19. The Town Attorney’s office provided the revised application’s language, which
is a mandatory component of the business tax receipt. Id. at 19-20; Dkt. 82-6 at 3234; Dkt. 82-8 at 34:
By signing the below, the business owner/manage[r]
acknowledges that all of the information on this Business
Tax Receipt Application is true, and that as a condition of
the privilege of conducting business within the Town,
consent[s] to the Town’s Code Enforcement Officer to
periodically conduct inspections of the business premises
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during business hours to confirm the information
provided in this Application is true, and to verify that the
business is complying with Town code provisions
governing the business’s condition, conduct and
operations, is hereby given.
Dkt. 84-1 at 18-19. Sweet Sage’s most recent application did not include the seat
number as required and was therefore rejected. Dkt. 56-4 at 3. Mr. Messmore has
not refiled because he does not approve of the above consenting language. Id. ¶¶
38-39.
On November 13, 2018, Plaintiffs once more amended their complaint to
lastly challenge the constitutionality of the Town’s Business Tax Code as amended
by Ordinance 2018-804, both facially and as applied. Dkt. 56. After exhaustive
discovery, Plaintiffs filed summary judgment on only the constitutionality of the
Business Tax Code and business tax receipt application. The Town and the Sheriff
move for summary judgment on all claims.
SUMMARY JUDGMENT STANDARD
Under Rule 56, Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Mize v. Jefferson City Bd. of Educ., 93 F. 3d 739, 742 (11th
Cir. 1996). If met, the burden shifts to the nonmoving party to “come forward with
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specific facts showing that there is a genuine issue for trial.” Shaw v. City of Selma,
884 F. 3d 1093, 1098 (11th Cir. 2018) (citation omitted).
“A fact is ‘material’ if it has the potential of ‘affect[ing] the outcome of the
case.’” Shaw, 884 F.3d at 1098. “And to raise a ‘genuine’ dispute, the nonmovant
must point to enough evidence that ‘a reasonable jury could return a verdict for
[him].’” Id. (citation omitted) (alteration in original). The Eleventh Circuit further
teaches that “[w]hen considering the record on summary judgment ‘the evidence of
the nonmovant is to be believed, and all justifiable inferences are to be drawn in
his favor.’” Id. (citations omitted).
DISCUSSION
Because factual issues on the First Amendment retaliation claim remain,
summary judgment is inappropriate. Prospective relief against the Town and
Sheriff for any Fourth Amendment or state law trespass violations is unwarranted.
The Court finds that portions of the revised Business Tax Code in tandem with the
business tax receipt application suffer constitutional defects. Lastly, the ordinance
does not violate Florida law. The Court will handle Plaintiffs’ claims in turn.
Count I.
First Amendment Retaliation Against the Town
Plaintiffs first claim the Town violated 42 U.S.C. § 1983 “by retaliating
against Plaintiffs for the exercise and assertion of their rights under the First . . .
Amendment[].” Dkt. 56 ¶ 41. Specifically, Plaintiffs “engaged in constitutionally
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protected speech through the posting of signs on the premises of [the Café],
speaking at public hearings and communicating with the Town Clerk concerning
code enforcement matters,” petitioning for “the redress of grievances by filing the
Sign Ordinance Litigation,” and “when they asked the Town to change the
permitted uses for the vacant lot and applied for a variance from the Town’s lot
size regulations.” Id. ¶¶ 42-44. The alleged retaliatory actions included “repeated,
and often disruptive, code enforcement inspections” and amending its parking
ordinance and Business Tax Code. Id. ¶¶ 45-46. Plaintiffs seek damages, injunctive
relief, attorney’s fees, and costs. Id. at 12.
1. The Relevant Policymaker Under Monell
A municipality is subject to § 1983 liability “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury.”
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). A plaintiff
must demonstrate: “(1) that his constitutional rights were violated; (2) that the
municipality had a custom or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
Liability may also be imposed for a “course of action tailored to a particular
situation” by municipal policymakers where “the decisionmaker possesses final
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authority to establish municipal policy with respect to the action ordered.” Scala v.
City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997) (citations omitted)
(emphasis in original); see also Carter v. City of Melbourne, Fla., 731 F.3d 1161,
1167 (11th Cir. 2013). Indeed, “municipal liability under § 1983 attaches where—
and only where—a deliberate choice to follow a course of action is made from
among various alternatives by the official or officials responsible for establishing
final policy with respect to the subject matter in question.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986) (citation omitted). To identity the relevant
policymaking officials, “the court should examine not only the relevant positive
law, including ordinances, rules and regulations, but also the relevant customs and
practices having the force of law.” Rosario v. Miami-Dade Cty., 490 F. Supp. 2d
1213, 1221-22 (S.D. Fla. 2007) (citation omitted). This is a question of law for the
Court. Id. (citation omitted).
The Court finds that, for the conduct complained of, the relevant
policymaker for the Town is the Town Attorney in conjunction with the fivemember Commission. Part of the Court’s analysis is informed by the unique
circumstances of the case: the Town has but four employees, a Commission of five
members including the Mayor, and a Town Attorney who is very involved in the
Town’s affairs and provided for in the Town’s Code. According to the Town
Attorney, by charter his position makes him a city officer. Dkt. 90-4 at 7. Section
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2-61 of the Town’s Code further provides that the Town Attorney “shall either be
counsel to the [code] enforcement board or shall represent the Town by presenting
cases before the board . . . .”
There is record evidence that the Town Attorney represented, spoke on
behalf of, and made discretionary decisions for the Town. In fact, the Town
Attorney was designated and deposed as the corporate representative of the Town
for a 30(b)(6) deposition under the Federal Rules of Civil Procedure related to this
matter. Dkt. 82-8 at 2. There is, moreover, evidence that the Town Attorney was
aware of the timing of some of the code enforcement against the Café, which
coincided with his deposition, and that his firm “handled” code enforcement
matters. He and his firm also had the authority to draft ordinances, which were
later passed by the Commission, to allegedly target Mr. Messmore. The
Commission, in turn, had the authority to pass ordinances as well as cancel
workshops on zoning matters. Code of the Town of North Redington Beach,
Florida §§ 1-12, 1-13.
The Town’s reliance on Singhal v. City of Wilton Manors, No. 06-61653CIV, 2006 WL 8433166 (S.D. Fla. Dec. 14, 2006), which requires the absence of
“meaningful administrative review” of a final policyholder, is misplaced. The
gravamen of the claim there was the searches themselves, not as they related to a
First Amendment retaliation claim. Id. at *4. Rather, the more nuanced municipal
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action alleged here is the decision to inspect for code violations in an
unconstitutional manner, not necessarily enforcement. Indeed, if coupled with a
retaliatory animus and causation, this behavior would be all that is necessary to
make out a First Amendment claim; it would not matter if a Special Master did not
ultimately find a violation.
Furthermore, there is no record evidence that there was meaningful
administrative review of the Town Attorney’s alleged decision to retaliate through
code inspections. Though the contract for services provided that the Sheriff would
be tasked with most aspects of code enforcement, the Sheriff nonetheless agreed to
confer with the Mayor and the Town Commission regarding code enforcement
problems within the Town. Under the contract, the Sheriff “shall accept from the
Town Commission general policy direction on how law enforcement and code
enforcement services are delivered and to what portion of the municipality a
particular type or level of service should be delivered to counteract law and codes
enforcement problems within the TOWN.” Dkt. 56-1 at 6-7. Arguably the Deputies
could have raised the issue of any selective enforcement with the Sheriff for a
second opinion, but this hardly constitutes “administrative review.”
It moreover defies common sense to argue the Town Attorney possessed no
authority in code enforcement matters when there is record evidence he was
involved in the matter. Indeed, emails were sent to and from the Town Attorney
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and Tom Trask, another lawyer at the law firm retained by the Town, and the
Town employees about enforcing code violations at the Café. Dkt. 61-2 at 85-87,
91-93, 103-104. Town Attorney Daigneault further testified he was aware of code
enforcement action against Sweet Sage at the time of his deposition on September
30, 2016, and that his partner, Mr. Trask, is “handling [code enforcement against
Sweet Sage] from the town attorney’s perspective.” Dkt. 90-4 at 76-77. Mr.
Daigneault also withdrew from the sign ordinance litigation because a previous
code enforcement official stated the Town Attorney made enforcement decisions at
issue in the case. Dkt. 61-2 at 70-71.
Equally unavailing is the Town’s argument that because “ultimately, the
Code Enforcement Officer is responsible for deciding whether an issue is a
violation or not,” Dkt. 82-8 at 4, the enforcement actions were not by
policymakers. But an NOV and eventual enforcement action is certainly not an
unexpected outcome of an inspection. A reasonable jury could find that implicit in
the instruction to inspect is also an instruction to enforce compliance. Such a
limited analysis also ignores the fact that, again, the inspections themselves are
problematic.
The facts presented here are closer to Costello v. Town of Huntington, No.
14-CV-2061(JS)(GRB), 2015 WL 1396448 (E.D.N.Y. Mar. 25, 2015). Allegations
in that case concerned retaliation by, among other things, inspections for town
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code provisions. Id. at *2-3. The court went on to find that the allegations of
concerted action by “multiple building inspectors, the Town attorney, and [a]
Councilman” plausibly stated a claim for a municipal custom or policy. Id. at *7
(citation omitted); see also Hurley v. Town of Southampton, No.
CV175543(JS)(AKT), 2018 WL 3941944, at *22 (E.D.N.Y. Aug. 13, 2018)
(collecting cases in finding complaint sufficiently alleged the town attorney “is a
[t]own official who has final policymaking authority with respect to enforcement
of . . . the Town code generally[.]”). This is distinct, of course, from a code
enforcement officer or even town attorney who possesses no policymaking
authority. See, e.g., Staten v. Vill. of Monticello, No. 14-CV-4766(KMK), 2015
WL 6473041, at *11 (S.D.N.Y. Oct. 26, 2015); Norton v. Town of Islip, 678 F.
App’x 17, 22 (2d Cir. 2017).
Indeed, it is the record evidence pointing to concerted action between the
Town Attorney and the Commission—and even extending to other government
officials—that is most suggestive of Monell liability. It is for the jury to determine
whether their actions have violated Plaintiffs’ First Amendment rights.
2. The Merits of First Amendment Retaliation
A First Amendment retaliation claim requires a plaintiff to establish: “(1) his
speech or conduct was constitutionally protected; (2) the retaliatory conduct of the
defendant adversely affected the protected speech, in that the retaliation ‘would
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likely deter a person of ordinary firmness’ from engaging in the protected speech;
and (3) there is a causal connection between the retaliatory conduct and the
protected speech.” Indigo Room, Inc. v. City of Fort Myers, 589 F. App’x 938, 947
(11th Cir. 2014) (citations omitted). “The causal-connection inquiry asks whether
the defendants were subjectively motivated to retaliate because the plaintiffs
engaged in protected speech,” which in turn requires that the defendants had
“actual knowledge” of the protected speech. Id. (citations omitted).
“Circumstantial evidence of temporal proximity alone is insufficient when there is
unrefuted testimony from the defendant that he knew nothing of the protected
conduct.” Id. (citations omitted).
It is undisputed that Mr. Messmore’s vocal participation in Town meetings
and the litigation concerning the unconstitutional sign ordinance are protected
speech. See, e.g., O’Boyle v. Sweetapple, 187 F.Supp.3d 1365, 1370-71 (S.D. Fla.
2016). As for speech related to the vacant lot, the Town cites to Ridgeview
Partners, LLC v. Entwhistle, 227 F. App’x 80, 82 (2d Cir. 2007) and another outof-circuit case for the proposition that the “informal zoning change ‘discussions’
and formal variance and site plan applications were not First Amendment
‘petitions.’” Dkt. 73 at 19.
The more analogous case, however, is Dougherty v. Town of N. Hempstead
Bd. of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002), relied upon by Ridgeview,
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where a plaintiff alleged that a zoning board revoked a previously issued permit
because of continued litigation on a related matter. Id. at 86-87. The Second
Circuit granted him leave to amend his complaint to include a First Amendment
retaliation claim. Id. at 91-92.
Indeed, Plaintiff’s argument is not that the Commission refused to move on
his request for rezoning because of the request. Rather, the sign ordinance
litigation was the relevant petition and protected speech. Furthermore, the Town
sets forth no authority for the proposition that the Town’s conduct with the vacant
lot is irrelevant as evidence of retaliatory intent more broadly.
Viewed as a whole, the alleged retaliation manifested in code enforcement, a
refusal to grant a request for rezoning of the vacant lot, and the drafting and
passing of Town ordinances. More specifically:
- Between September 2016 and April 2018, the Town conducted numerous
inspections of the Café. See Dkt. 73-6. Seating inspections are typically
conducted once a year in connection with business tax receipt applications.
Dkt. 84-1 at 12.
- The Clerk or Deputy Clerk told Deputy Short to conduct seat counts of the
restaurants. Dkt. 82-3 at 4-5.
- The Town instructed Deputies to review Sweet Sage’s business tax receipt
during the pendency of the sign ordinance litigation. Dkt. 82-8 at 28.
- On September 27, 2016, the Deputy Clerk forwarded information to Deputy
Short for a recheck of the Café. Dkt. 61-2 at 107; Dkt. 82-8 at 27. This was
days before the Town Attorney’s deposition on September 30. This
inspection was made. Dkt. 82-8 at 28.
- Though on a prior inspection Deputy Kohmann had determined that the Café
was in compliance, the Town Attorney’s office instructed him to shorten the
time between inspections of the Café. Dkt. 82-2 at 14.
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- Deputy Kohmann explained, “It seemed like there was a lot of past issues,
you know, going on.” Dkt. 82-2 at 19.
- At least one NOV was delivered by hand, which, during Deputy Clerk
Schmader’s employment, was “the first few times that [the Town had] hand
delivered any [NOVs].” Dkt. 61-2 at 108; see also Dkt. 82-2 at 14. Deputy
Short believed this idea came from the “discretion of the city attorney.” Dkt.
82-3 at 8.
- The Town Clerk arranged for Deputy Short to work on a weekend to handle
parking enforcement at the vacant lot. Id.; Dkt. 82-6 at 9-12.
- The Town proceeded with the failed code enforcement proceeding against
the Café in May 2018 when only three other enforcement hearings had
occurred since 2007, apparently none of which for parking matters. Dkt. 841 at 7.
- After the filing of the sign ordinance litigation, the Commission was
frustrated with Mr. Messmore’s statements about the case and wanted to
ensure that the Town’s side of the story was being heard by the public. Dkt.
90-1 at 26-30.
- Notwithstanding a scheduled workshop on Mr. Messmore’s request to
rezone the vacant lot, the Commission canceled the workshop. This followed
summary judgment in the sign ordinance litigation. Dkt. 82-8 at 36-37.
- The Commission also met shortly after summary judgment in the case to
discuss appeal. A portion of the transcript, Dkt. 90-2 at 64, reads:
MAYOR QUEEN: We got it. You know, it’s – it’s
the idea of it that’s -- we have the money.
COMMISSIONER CURTIS: I know. It stinks.
MAYOR QUEEN: Yeah, it does. It does. But what
are we left with? Are we going to give up our town or
are we going to try and fight this thing? Because
we’re going to -- you already see it. You see what
could happen. Here’s our man. You know, I'm -MR. DAIGNEAULT: Tough call.
COMMISSIONER CURTIS: Is there another lawsuit on
the heels of this parking thing because we weren’t able
to -MR. DAIGNEAULT: I'm going to stop you there.
COMMISSIONER CURTIS: Not at this meeting, okay.
I just -- like I said, are we an escalator?
MR. DAIGNEAULT: All right. I'm going to close
the executive session.
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- The Town’s current counsel, an attorney with the law firm retained by the
Town, sent an email to the Town Attorney concerning a proposed ordinance.
He wrote, “As to having the [American with Disabilities Act] regs and such,
yes, I looked them up last evening to be sure, and we can be sure to print
them out and make them part of the backup materials. Just for your info, I
didn't need the ADA finding since my actual regulation does not incorporate
the ADA standard. So why, you ask, did I add the finding? Because I want
him to see that in addition to the count violation, it is likely that his seating
does not meet the ADA standards either.” The Town Attorney confirmed
that “he” refers to Mr. Messmore. Dkt. 82-8 at 41.
- When Plaintiffs challenged the constitutionality of the Business Tax Code,
the Town amended it in a way that would still allow unwarranted, unnoticed
inspections of the Café. Dkt. 75-4.
In response to the above, the Town suggests it delegated all code
enforcement responsibilities to the Sheriff, that enforcement was not selective and
indeed other establishments saw repeat inspections (and, most persuasively, that
the Café had been repeatedly out of compliance with the parking ordinance), that
decisions related to the vacant lot were justified, and that the overlap of inspections
with key moments in litigation was coincidental. In this way, the Town attempts to
minimize each individual instance but misses the bigger picture. A reasonable jury
could, from the entirety of the evidence Plaintiffs have put forward, infer that the
Town Attorney and the Commission acted with a retaliatory motive against Mr.
Messmore and Sweet Sage. At some point mere coincidence morphs into
something else. Where precisely is a question for the jury.
The Town also argues that no conduct “adversely affected” Mr. Messmore.
Indeed, he is still vocal at meetings, the sign ordinance litigation was successful,
20
and, to the extent it is or is not relevant as protected speech, the vacant lot is now
under construction for another business. But this injects a subjective element into
the inquiry, which instead asks whether the retaliation “would likely deter a person
of ordinary firmness” from engaging in the protected speech. Mr. Messmore has
given every indication that he is not a person of ordinary firmness. This factual
question is another for the jury. Summary judgment is not appropriate on
Plaintiffs’ Count I.
Count II.
Unreasonable Search and Seizure Against the Town and the Sheriff
Plaintiffs Sweet Sage and SS16725 next claim that “[s]ince August 2016,
Pinellas County Sheriff’s deputies, at the direction of the Town, have conducted
approximately thirteen warrantless searches of the Sweet Sage Café and the threat
of additional warrantless searches remains ongoing.” Dkt. 56 ¶ 50. Plaintiffs seek
injunctive relief prohibiting warrantless searches or inspections of the Café, an
award of attorney’s fees, and costs. Id. at 14.
“[T]he Fourth Amendment’s prohibition on unreasonable searches and
seizures is applicable to commercial premises, as well as to private homes” and
extends to “administrative inspections designed to enforce regulatory statutes,”
New York v. Burger, 482 U.S. 691, 699 (1987). Putting aside the Town’s reliance
on the original Business Tax Code as justification for the Deputies’ entry, this
record establishes that, during each of the inspections, the Deputies entered a
21
public restaurant during open hours, did not stray to an “employees only” or “no
trespassing” section of the building, did not inspect any books or business records,
and were not disruptive.2
There is some record evidence that at times patrons were disturbed by the
visiting officers. But it is also clear that until May 2018, Mr. and Mrs. Messmore
consented or acquiesced. See United States v. Kapperman, 764 F.2d 786, 794 (11th
Cir. 1985); see also United States v. Thriftimart, Inc., 429 F.2d 1006, 1009 (9th
Cir. 1970) (noting that, unlike a criminal case, consent in an administrative
inspection is not “inherently suspect”). Mr. Messmore admits he never told the
Deputies that they were not allowed to enter the Café to count seats. Dkt. 82-5 at
18. Nor did he or his staff ever tell the Deputies they were not welcome. Id. at 22.
In fact, after Plaintiffs sent the May 4, 2018 letter “trespassing” Defendants, no
officer returned to the Café for code enforcement.
The consent or acquiescence of Plaintiffs means there is no past Fourth
Amendment violation to recompense.3 Nor is prospective injunctive relief
appropriate when untethered to a past violation, and the Court fashions appropriate
2
And as for the posting of a citation on the vacant lot, this entry does not constitute a search because it is
not designed to “find[] something.” Singhal v. City of Wilton Manors, No. 06-61653-CIV, 2006 WL
8433166, *2 (S.D. Fla. Dec. 14, 2006) (citation omitted).
3
Also irrelevant is the constitutionality of the previous iteration of the Business Tax Code that was relied
upon by the Town’s Attorney. See Sosa v. Hames, 581 F.Supp.2d 1254, 1269 (S.D. Fla. 2008) (finding an
officer’s inspection pursuant to statutory authority did not require a warrant as it occurred during normal
business hours and was conducted for the purposes set out in the authorizing statute).
22
relief for Plaintiffs below concerning Count III. Judgment for the Town and the
Sheriff on Count II is granted.
Count III
Whether the Prior Business Tax Code and Revised Business Tax Code
Violate the Fourth Amendment
Plaintiffs Sweet Sage and SS16725 challenge the constitutionality of the
Town’s prior Business Tax Code and revised Business Tax Code. Dkt. 56 ¶¶ 7881. Plaintiffs seek a declaration that the Codes are unconstitutional on their face
and as applied, as well as injunctive relief, attorney’s fees, and costs. Id. at 18.
In its prior form, Section 66-45 of the Business Tax Code provided that:
(a) All persons authorized in this section to inspect
holders of business tax receipt and businesses shall have
the authority to enter, with or without search warrant, at
all reasonable times, the following premises:
(1) Those for which a business tax receipt is required;
(2) Those for which a business tax receipt was issued and
which, at the time of inspection, are operating under such
business tax receipt;
(3) Those for which the business tax receipt has been
revoked or suspended.
Dkt. 75-4 at 9. In response to Plaintiffs’ challenge to the ordinance (and after
reading the U.S. Supreme Court’s opinion in City of Los Angeles, Cal. v. Patel,
135 S. Ct. 2443 (2015), see Dkt. 73 at 41), the Town amended the provision.
Section 66-43 of the Business Tax Code now requires businesses to “permit
all reasonable regulatory inspections of the licensed premises and business records
by federal, state, county and town inspectors as provided for in section 66-45 of
23
this article or as otherwise authorized by county, state or federal law.” Dkt. 75-4 at
7. As revised, Section 66-45(b) authorizes “regulatory inspections . . . at all
reasonable times, to ensure compliance with town codes”:
(c)(1) Where the code inspector has been invited or has
otherwise been permitted to enter the premises by the
owner, manager, employee or other agent with actual or
apparent authority to control the premises;
(c)(2) Where the code inspector enters a licensed
business premises during a time when that business is
open for business and the code inspector inspects only
areas of the business which are otherwise open to or
viewable by customers, delivery personnel, or other
persons who are invitees of the business;
(c)(3) Where the code inspector is inspecting a licensed
business engaged in a closely-regulated industry, and
where the inspector has a reasonable good faith belief,
based upon a record of non-compliance or other
verifiable evidence of probable non-compliance to
include citizen complaints, that providing advanced
notice of the inspection may allow the business to
conceal the code violation which is the subject of the
inspection;
(c)(4) Where the code inspector presents an inspection
warrant.
Dkt. 75-4 at 9. The Business Tax Code goes on to define the term “closelyregulated industry” as: “[a] firearms retailer . . . ; [a] business which is licensed and
regulated by the Florida Beverage Law as defined in Florida Statutes § 561.01(6);
and [a] public food service establishment licensed under Florida Statutes Chapter
509.” Id. at 10 (§ 66-45(g)).
24
These subsection (c)(3) inspections may be conducted four times in twelve
months excluding “follow up inspections.” Id. at 9 (§ 66-45(e)). The section further
limits all inspections “to the regulatory purposes for which the inspector is seeking
to conduct the inspection.” Id. (§ 66-45(d)). Additionally, through Section 6640(a)(1), the Town revised its license or business tax receipt application to require
businesses to “attest[] to the truthfulness of the information contained therein and
acknowledge[] the requirements of this article.” Dkt. 75-4 at 5.
Plaintiffs complain of many features of the revised Business Tax Code, Dkt.
56 ¶¶ 72-80, and bring both a facial and as applied constitutional challenge, id. ¶
81. A facial challenge seeks to invalidate a statute or regulation itself. Jacobs v.
Florida Bar, 50 F.3d 901, 905-06 (11th Cir. 1995). While facial Fourth
Amendment ordinance challenges are not barred, Patel, 135 S. Ct. 2443, the
Supreme Court has established that a “facial challenge to a legislative [a]ct is . . .
the most difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the [a]ct would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987).
The Court finds that the issue is ripe and that, on its face, subsections (c)(3)
and (g) of Section 66-45 are unconstitutional. As applied to the Café that has now
revoked consent, warrantless inspections under subsection (c)(2) are
unconstitutional. Summary judgment in favor of Plaintiffs is thus appropriate.
25
1. Ripeness
Article III’s ripeness doctrine requires courts to weigh: “(1) the fitness of the
issues for judicial decision; and (2) the hardship to the parties of withholding court
consideration.” Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227 (11th Cir.
2006) (citation and quotation marks omitted). Relevant to the fitness and hardship
prongs are: “(1) whether delayed review would cause hardship to the plaintiffs; (2)
whether judicial intervention would inappropriately interfere with further
administrative action; and (3) whether the courts would benefit from further factual
development of the issues presented.” Id. (citations omitted).
In analyzing the above, the Court is mindful of the unique circumstances of
the case. Though the Town has not yet invoked Section 66-45 of the revised
Business Tax Code, there is nonetheless a long history of inspections of the Café.
This suggests the certain likelihood of future inspections.
These prior inspections were purportedly justified by the Code’s precursor.
Dkt. 82-8 at 31. What is more, that precursor was amended in direct response to
Plaintiffs’ challenge to its constitutionality. The Town has further represented that
code enforcement officers in the future will be obligated to conduct administrative
inspections pursuant to the Code. Dkt. 82-8 at 42. Why else, after all, pass the
ordinance? Put simply, the Town is unable to render a constitutional challenge to
26
an ordinance unripe simply by amending the ordinance and waiting until the dust
of litigation settles to use it.
More tangibly, the Town has decided to tie its amended business tax receipt
applications (basically the Town’s business permit) to the administrative
inspections. Mr. Messmore has objected to the practice and has thus not reapplied
after his most recent application’s rejection. Plaintiffs have thus suffered—and
continue to suffer—a concrete harm. See, e.g., Dkt. 75-4 at 7 (“Any person who
engages in or manages any business . . . without first obtaining a local business
license . . . is subject to a penalty of 25 percent of the business license tax due, in
addition to any other penalty provided by law or ordinance . . . .”); see also Dkt.
75-4 at 3 (“It shall be unlawful for any person . . . to engage in or manage any
business . . . without a business license.”).
Delay in resolving the constitutionality of the ordinance would merely put
off the inevitable and cause hardship to Plaintiffs. The above considerations
distinguish this case from one like Bayside Enterprises, Inc. v. Carson, 450 F.
Supp. 696 (M.D. Fla. 1978) that was decided in a near factual vacuum. See also
Free Speech Coal., Inc. v. Attorney Gen. United States, 825 F.3d 149, 167 n.15 (3d
Cir. 2016) (noting that ripeness turns on “whether the threat of future harm under
the Statutes is sufficiently immediate to constitute a cognizable injury” and finding
27
ripeness where “the threat of future inspections has caused Plaintiffs to incur
ongoing costs to comply with the regulations”).
The second and third ripeness factors are also satisfied. Judicial review
would not interfere with administrative action, much less “inappropriately.” And
the factual development of the issue, with voluminous discovery, is comprehensive
enough for the Court to rule. Because Plaintiffs’ challenge of Section 66-45 of the
revised Business Tax Code is fit for review and withholding consideration would
cause hardship, the issue is ripe.4
2. Plaintiffs’ Facial Attack on Subsections (c)(3) and (g)
“Search regimes where no warrant is ever required may be reasonable
where ‘special needs’ . . . make the warrant and probable-cause requirement
impracticable” and the “primary purpose of the searches is distinguishable from the
general interest in crime control.” Patel, 135 S. Ct. at 2452 (citations, alterations,
and some quotation marks omitted). Here it is clear that the administrative searches
authorized by the revised Business Tax Code serve a “special need” other than
conducting criminal investigations. See id.
But “absent consent, exigent circumstances, or the like, in order for an
administrative search to be constitutional, the subject of the search must be
4
The Court finds no contradiction in holding that the constitutional challenge to the revised Business Tax
Ordinance is ripe, though injunctive relief for alleged Fourth Amendment violations inappropriate. As the
Court noted, there has not yet been a constitutional violation, which here precludes prospective injunctive
relief but not necessarily a constitutional challenge to the ordinance.
28
afforded an opportunity to obtain precompliance review before a neutral
decisionmaker.” Id. (citations omitted). Patel involved a city ordinance that
required hotels to maintain certain information of guests and provide that
information to law enforcement upon request. Id. at 2447-48. The hotel owner
could face criminal penalties and be “arrested on the spot” for failing to comply.
Id. at 2452. The Supreme Court held “only that a hotel owner must be afforded
an opportunity to have a neutral decisionmaker review an officer’s demand to
search the registry before he or she faces penalties for failing to comply,” and that
“[a]ctual review need only occur in those rare instances where a hotel operator
objects to turning over the registry.” Id. at 2453 (emphasis in original).
While it is true that the Code itself provides no criminal sanctions for failing
to comply, any violation of the Business Tax Code can result in the Town
declining to issue or renew, or revoke or suspend a business license. See Dkt. 75-4
at 3. Moreover, aspects of Section 66-45 of the Town’s Business Tax Code provide
no opportunity for neutral, precompliance review.
Section 66-45 attempts to sidestep this point and Patel entirely by its very
design. Indeed, for the most part, its subsections merely codify acceptable behavior
under the Fourth Amendment.5 Subsection (c)(1) inspections, for example, are
5
Be that as it may, the existence of constitutional alternatives—indeed, that are precisely in line with
Fourth Amendment jurisprudence—will not save a separate unconstitutional provision from facial attack.
Cf. Patel, 135 S. Ct. at 2451 (“[W]hen addressing a facial challenge to a statute authorizing warrantless
searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not
29
consent-based. Dkt. 75-4 at 9. Subsection (c)(2) allows for inspectors to enter a
business that is open to the public and inspect only areas that are open and
viewable by customers. Subsection (c)(4) allows for an inspection via warrant.
And, among other things, subsection (d) codifies the plain-view search doctrine.
Plaintiffs mainly take issue with subsection (c)(3), which picks up where
(c)(2) left off by allowing inspectors to also access businesses that are not open to
the public (though apparently only during working hours or when occupied, as
addressed by subsection (f)). It would also allow inspectors of businesses open to
the public to inspect areas that are otherwise not accessible—for example, a
concealed kitchen of a restaurant.
The Town, no doubt aware that such broad powers would implicate the
Fourth Amendment, expressly limited subsection (c)(3) to establishments in a
“closely-regulated industry” for which no precompliance review under Patel is
required. Patel, 135 S. Ct. at 2454. Subsection (g) further defines “closelyregulated industry” as firearms retailers, restaurants, and businesses licensed for
alcohol. Dkt. 75-4 at 10.
The “closely regulated industry,” however, is “the exception.” Patel, 135 S.
Ct. at 2455 (citation omitted). Indeed, the Supreme Court has noted only four
those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the
search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing
warrantless searches also do no work where the subject of a search has consented.”).
30
industries that “have such a history of government oversight that no reasonable
expectation of privacy . . . could exist for a proprietor over the stock of such an
enterprise.” Id. at 2454 (citation omitted). In Patel, the Court observed that
“[s]imply listing these industries refutes petitioner’s argument that hotels should be
counted among them. Unlike liquor sales, Colonnade Catering Corp. v. United
States, 397 U.S. 72 (1970), firearms dealing, United States v. Biswell, 406 U.S. 311
(1972), mining, Donovan v. Dewey, 452 U.S. 594 (1981), or running an automobile
junkyard, New York v. Burger, 482 U.S. 691 (1987), nothing inherent in the
operation of hotels poses a clear and significant risk to the public welfare.” Patel,
135 S. Ct. at 2454 (some citations omitted).
As an initial matter, the Town is unable to circumvent the Fourth
Amendment’s mandate simply by designating a given industry as closely
regulated. Though the parties did not fully brief the Court on the extent of the
regulatory framework for restaurants, caselaw is instructive, beginning with Patel.
Regulations require “hotels to, inter alia, maintain a license, collect taxes,
conspicuously post their rates, and meet certain sanitary standards.” Patel, 135 S.
Ct. at 2455. The same—and not much more—can be said of restaurants. See
generally Fla. Stat. Ch. 509. And as feared by the Court in Patel, finding that a
restaurant, or more broadly an establishment that sells food, is part of a closelyregulated industry would allow the exception to swallow the rule. Id. at 2454-55.
31
In contrast, the Town chiefly relies on out-of-circuit, pre-Patel cases. See,
e.g., Khurana v. N. Cent. Dist. Health Defendants’ Dep’t, No. 3:10-cv-00579BLW, 2012 WL 1288746 (D. Idaho Apr. 16, 2012); Aida Food and Liquor, Inc. v.
City of Chicago, No. 03-C-4341, 2005 WL 736015 (N.D. Ill. Mar. 29, 2005);
Players, Inc. v. City of New York, 371 F.Supp.2d 522 (S.D.N.Y. 2005). Another
common trait among these cases is their reliance on Contreras v. City of Chicago,
119 F.3d 1286 (7th Cir. 1997), but the appellate court there did not directly address
the district court’s finding that restaurants operate in a closely-regulated industry.
119 F.3d at 1290. The district court, meanwhile, was not presented with any
argument to the contrary and relied on two cases: one made no mention of the
amount of regulation of the food industry, much less as it relates to the Fourth
Amendment, see United States v. Acri Wholesale Grocery Co., 409 F. Supp. 529,
533 (S.D. Iowa 1976) (“[T]he Court believes that once the validity of the
inspection is established, the propriety of a photographic ‘search’ is coextensive
with the validity of the inspection[.]”), and the other looked to the “food and drug
industry” as a single entity yet cited no actual regulations, United States v. New
England Grocers Supply Co., 488 F. Supp. 230, 238 (D. Mass. 1980). Contreras v.
City of Chicago, 920 F. Supp. 1370, 1389 (N.D. Ill. 1996).
The fact that a restaurant might sell some alcoholic beverages does not
change the calculus. As such, the Town’s reliance on Indigo Room, Inc. is
32
misplaced. A restaurant is by no means a “liquor establishment.” Indigo Room,
Inc., 589 F. App’x at 945. In fact, the original source of the alcohol industry’s
“closely regulated” designation, Colonnade Catering Corp., 397 U.S. 72, involved
a catering establishment whose operator was a licensee authorized to serve alcohol
and the holder of a retail liquor dealer’s occupational tax stamp. Id. at 72. The
Supreme Court, moreover, had before it evidence of “the long history of the
regulation of the liquor industry” dating back to England and the American
Colonies, which has included laws granting federal officers “broad powers to
inspect distilling premises and the premises of the importer without a warrant,” and
“to make warrantless searches and seizures of articles under the liquor laws.” Id. at
75.
Yet even a finding that a restaurant is in a closely-regulated industry would
not end the Court’s inquiry. For a warrantless search of such a business to be valid:
(1) “there must be a ‘substantial’ government interest that informs the regulatory
scheme pursuant to which the inspection is made”; (2) “the warrantless inspections
must be ‘necessary’ to further [the] regulatory scheme”; and (3) “the statute’s
inspection program, in terms of the certainty and regularity of its application,
[must] provid[e] a constitutionally adequate substitute for a warrant.” Burger, 482
U.S. at 702-703 (citation omitted) (alterations in original). The Burger Court went
on to explain the third factor:
33
[T]he regulatory statute must perform the two basic
functions of a warrant: it must advise the owner of the
commercial premises that the search is being made
pursuant to the law and has a properly defined scope, and
it must limit the discretion of the inspecting officers. To
perform this first function, the statute must be sufficiently
comprehensive and defined that the owner of commercial
property cannot help but be aware that his property will be
subject to periodic inspections undertaken for specific
purposes. In addition, in defining how a statute limits the
discretion of the inspectors, we have observed that it must
be carefully limited in time, place, and scope.
Id. at 703. (citations and quotation marks omitted). “The primary purpose of the
Fourth Amendment in this context is to protect citizens from the unbridled
discretion [of] executive and administrative officers.” Indigo Room, Inc., 589 F.
App’x at 945 (citation omitted) (alteration in original).
But unlike the finely-tuned regulatory schemes in the above cases, with
roughly one page the Town’s ordinance purports to apply equally to all licensed
businesses in three discrete industries. Compare Dkt. 75-4 at 9 with Burger, 482
U.S. 691 (New York law targeted at vehicle industry); Biswell, 406 U.S. 311 (the
Gun Control Act of 1968); Dewey, 452 U.S. 594 (the Federal Mine Safety and
Health Act of 1977); Colonnade, 397 U.S. 72 (federal law targeted at alcohol
industry). If that were not enough, the inspections can be for enforcement of any
provision of the code. Dkt. 75-4 at 9. This runs the gamut from animal control and
burning garbage to planting trees and hedges, not to mention parking. Code of the
Town of North Redington Beach, Florida (available at
34
https://library.municode.com/fl/redington_beach/codes/code_of_ordinances?nodeI
d=COORTOREBEFL). This unprecedented breadth is a flaw that infects all of
subsection (c)(3), not just as applied to restaurants.
No matter how “severe” the Town’s shortage of parking, it is unconvincing
to compare this and likely most other code provisions to the dangers of mining and
firearms. But even assuming the Town has a “substantial interest” in enforcing its
code writ large, it is not clear that warrantless inspections are “necessary” to
further this scheme. This is partly because Florida already has a comprehensive
procedure to allow for state or local officials to obtain an inspection warrant to
check non-residential structures for code compliance. Fla. Stat. §§ 933.20-933.30.
An inspection warrant requires “cause, supported by affidavit particularly
describing the place, dwelling, structure, or premises to be inspected and the
purpose for which the inspection is to be made. In addition, the affidavit shall
contain a statement that consent to inspect has been sought and refused or a
statement setting forth facts or circumstances reasonably justifying the failure to
seek such consent.” § 933.21. A judge issues the warrant, which is effective for up
to 14 days without extension. §§ 933.23-933.25. “When prior consent has been
sought and refused, notice that a warrant has been issued shall be given at least 24
hours before the warrant is executed,” though immediate execution is available
35
“when necessary to prevent loss of life or property.” § 933.26. Willfully refusing a
warranted inspection is a second-degree misdemeanor. § 933.27.
Of course, the availability of a statutory regime for inspection does not
necessarily invalidate a different one. See § 933.29 (“Nothing contained herein
shall be construed to restrict . . . inspections with or without warrant as authorized
by general law.”). The Town also stresses that the State’s mechanism is ineffective
because, with 24 hours’ notice, an offending business could simply bring itself into
compliance (in Plaintiffs’ case, by removing a few chairs) before the inspection,
pass inspection, then fall outside of compliance immediately thereafter.
Courts have rejected similar arguments. See, e.g., Patel, 135 S. Ct. at 2453,
2456 (collecting cases). The Town is correct, however, that the Eleventh Circuit in
Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999) looked to Supreme Court
precedent in finding that, for inspections to root out underage drinking,
“[r]equiring inspectors or other law enforcement agents to obtain warrants before
conducting an investigation might alert nightclub and bar owners to the impending
inspection, which would defeat the purpose of the inspection.” 187 F.3d at 1347;
see also Burger, 462 U.S. at 710; Dewey, 452 U.S. at 603; Biswell, 406 U.S. at
316. But the government actors in Crosby were operating pursuant to a tailored
regulatory regime—the Georgia Alcoholic Beverage Code—and their search was
in furtherance of that scheme.
36
This brings the Court back to the third factor in Burger. The Town’s
ordinance provides no check on unbridled discretion by defining the scope of any
inspection. Because of this, it is not a constitutionally adequate substitute for a
warrant.
The Court does commend the ordinance’s internal limitations. It requires, for
instance, “a reasonable good faith belief, based upon a record of non-compliance
or other verifiable evidence of probable non-compliance . . . that providing
advance notice of the inspection may allow the business to conceal the code
violation which is the subject of the inspection.” Dkt. 75-4 at 9. Inspections can
only be conducted during reasonable times. Id. And officials can only invoke (c)(3)
four times in twelve months.6 Id.
But, as mentioned above, there is nothing in the provision that restricts an
inspection of an establishment in a closely-regulated industry to matters relevant to
that regulation. It allows, in other words, for a general search or inspection that is
6
Perhaps counterintuitively, this last limitation might actually militate against Fourth Amendment
reasonableness because the ordinance’s language does not put business owners on notice that their
business will be inspected regularly. See, e.g., Dewey, 452 U.S. at 605 (noting the statute “clearly notifies
the operator that inspections will be performed on a regular basis” in finding no constitutional violation);
Burger, 482 U.S. at 711 (statute stating that inspections occur on a regular basis shows owner that
inspections are not discretionary); but see Patel, 135 S Ct. at 2463 (Scalia, J., dissenting) (“But the
warrantless police searches of a business ‘10 times a day, every day, for three months’ that the Court
envisions under Los Angeles’s regime . . . are entirely consistent with the regimes in Dewey and Burger;
10 times a day, every day, is ‘at least four times a year,’ and on a (much too) ‘regular basis.’”).
37
not properly defined. The facts presented here paint a vivid example of this fatal
infirmity.
The Café serves some alcoholic beverages, though it closes at 2:00 p.m.
Because alcohol is a closely-regulated industry, the Town argues, code
enforcement officers can enter the Café to count its seats—a matter entirely
unrelated to alcohol. Contrary to the Town’s assertion at oral argument, this kind
of bootstrapping is not sanctioned by Indigo Room, Inc. See 589 F. App’x at 946
(finding no evidence “to support Appellants’ contention that the inspections were
for a purpose other than learning whether the [bar] was conforming to the
alcoholic-beverage laws, including the Ordinance”). Even if the Court were to
deem restaurants to be in a closely-regulated industry, enforcing a parking
ordinance is still unrelated to alcohol or to food.
Rather, there must exist some nexus between the heavy regulation that
diminishes a business’s reasonable expectation of privacy and the ensuing
inspection. Cf. Dewey, 452 U.S. at 601 (noting that fatal to the statute in [Marshall
v. Barlow’s, Inc., 436 U.S. 307 (1978)] was its failure to “tailor the scope and
frequency of . . . administrative inspections to the particular health and safety
concerns posed by the numerous and varied businesses regulated by the statute”);
Burger, 482 U.S. at 711-12; (upholding inspections in closely-regulated vehicledismantling industry where statute limited examinations to vehicles, parts, and
38
records); Biswell, 406 U.S. at 316 (“When a dealer chooses to engage in this
pervasively regulated business [of firearms] and to accept a federal license, he does
so with the knowledge that his business records, firearms, and ammunition will be
subject to effective inspection.”) (emphasis added).
In a similar vein, whether a business consents for inspection as part of an
alcohol licensing scheme is irrelevant. In applying for alcohol licensure, for
instance, Mr. Messmore agreed that the Café “may be inspected and searched
during business hours or at any time business is being conducted on the premises
without a search warrant by officers of the Division of Alcoholic Beverages and
Tobacco, the Sheriff, his Deputies, and Police Officers for the purposes of
determining compliance with the beverage and retail tobacco laws.” Dkt. 83-2 at
104 (emphasis added); see also Crosby, 187 F.3d at 1347 (quoting O.C.G.A. § 3-232)). As admitted by counsel at oral argument, the Town is not involved in alcohol
code enforcement. See also Watson v. Abington Twp., 478 F.3d 144, 152 (3d Cir.
2007) (noting that statute allowed liquor control board to inspect a tavern and cite a
violation of any law, including the liquor code, but that there was no proof the
board was involved in the challenged inspections).
Rather, a business owner subject to an unnoticed inspection under subsection
(c)(3) is “left to wonder about the purposes of the inspector or the limits of his
task.” Biswell, 406 U.S. at 316. The only restraint on an inspection’s scope appears
39
to be subsection (d)’s limit “to the regulatory purposes for which the inspector is
seeking to conduct the inspection,” but this vague clause cannot singlehandedly
save subsections (c)(3) and (g).
Nor is the Town able to extract from its business owners a waiver of their
Fourth Amendment rights through the mandatory business tax receipt application.
See Thorobred, Inc. v. Louisville/Jefferson Cty. Metro. Gov’t, No. 3:04CV-193JDM, 2005 WL 2429079, at *4 (W.D. Ky. Sept. 30, 2005) (finding ordinance
requiring consent for a liquor license unconstitutional where it does not expressly
limit inspections and searches “for violations of the applicable alcoholic beverages
laws and regulations”); Float-Rite Park, Inc. v. Vill. of Somerset, 2001 WI App
113, ¶ 15, 244 Wis. 2d 34, 46, 629 N.W.2d 818, 824 (citation omitted) (finding
consent for inspection invalid “because a state actor cannot constitutionally
condition the receipt of a benefit, such as a . . . business license, on an agreement
to refrain from exercising one’s constitutional rights”); Makula v. Vill. of Schiller
Park, IL, No. 95 C 2400, 1998 WL 246043, at *7 (N.D. Ill. Apr. 30, 1998)
(striking as unconstitutional license’s requirement of consent to administrative
inspections); cf. Pentco, Inc. v. Moody, 474 F. Supp. 1001, 1009 (S.D. Ohio 1978)
(“Nor does this Court question the city’s ability to require an inspection as a
condition precedent to the issuance of a license and ‘prior to operating a business.’
Once an inspection has been had and a license issued, however, the Court believes
40
that further searches require a warrant absent consent.”). This aspect of the
business tax receipt application similarly falls.
3. The Remedy
The Court does not take its task lightly. Ordinance 2018-804 does include a
severability provision should any part of the Ordinance be found unconstitutional
or otherwise legally invalid. Dkt. 75-4 at 10. There is, moreover, a presumption for
severability so long as “what remains after severance is fully operative as a law.”
INS v. Chadha, 462 U.S. 919, 931 (1983) (citation omitted). Indeed, apart from
subsections addressed above, the ordinance seems innocuous. This is not a case
like Wal Juice Bar, Inc. v. City of Oak Grove, Ky., No. 5:02CV-252-R, 2008 WL
1730293, at *20-21 (W.D. Ky. Apr. 10, 2008) where essential portions of the law
were stricken.
The Court finds that the appropriate remedy is to strike the offending
language from the ordinance and the business tax receipt applications; the rest
remains intact. Because of this, the Court need not determine the constitutionality
of the prior Business Tax Code. The Town is enjoined from inspecting the Café or
any business under subsection (c)(3) of Section 66-45.
4. Inspections of the Café Under Subsection (c)(2)
At least as applied to the Café, the Constitution also precludes inspections
pursuant to subsection (c)(2). This brings the Court to two companion cases,
41
Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523 (1967) and
See v. City of Seattle, 387 U.S. 541, 545 (1967). Camara involved a leaseholder’s
refusal to allow housing inspectors to enter without a warrant. 387 U.S. at 540. The
U.S. Supreme Court held that the leaseholder “had a constitutional right to insist
that the inspectors obtain a warrant to search and that appellant may not
constitutionally be convicted for refusing to consent to the inspection.” Id.
The commercial inspection in See, meanwhile, was “part of a routine,
periodic city-wide canvass to obtain compliance with Seattle’s Fire Code.” 387
U.S. at 541. The Court in See “conclude[d] that administrative entry, without
consent, upon the portions of commercial premises which are not open to the
public may only be compelled through prosecution or physical force within the
framework of a warrant procedure.” Id. at 545; see also Patel v. City of Los
Angeles, 738 F.3d 1058, 1063 (9th Cir. 2013), aff’d, 135 S. Ct. 2443 (“When the
government seeks access to non-public areas of a business to enforce health and
safety regulations, an administrative search warrant is generally required before
that greater level of intrusion is permitted.”). The unanswered question is whether
a business owner can object to a warrantless administrative inspection or search in
the area of a business open to the public. As applied on these facts to the Sweet
Sage Café, the answer is yes.
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As feared by the Supreme Court in the hotel context of Patel, there is a risk
that continued inspections—whether or not they rise to the level of a “search”—
can be “used as a pretext to harass” business owners and their customers. Patel,
135 S. Ct. at 2452-53; cf. Lesser v. Espy, 34 F.3d 1301, 1309 (7th Cir. 1994)
(“[O]nce an individual begins to receive distinctive treatment without apparent
justification (such as more inspections than the regular schedule would indicate)
oversight such as that provided by the warrant process may be required to assure
that the inspected’s Fourth Amendment guarantees are met.”) (citations omitted).
This precise issue is captured by Sweet Sage’s First Amendment retaliation
claim. To again borrow language from Patel, there is no limiting force in the
Town’s ordinance to prevent (c)(2) inspections “10 times a day, every day, for
three months.” Patel, 135 S. Ct. at 2452-53. It would be absurd to allow such a
practice simply because counting seats does not rise to a “search”; rather, it is the
repeated entry and inspection over the owner’s objection—inconsistent with
Florida’s existing statutory regime for inspections—that offends the Fourth
Amendment. In other words, Mr. Messmore has a reasonable expectation of
privacy against such inspections.
Although fairly unique to the Town/Sweet Sage dispute, this is not as novel
as it might seem. In Toledo v. Bateson, 614 N.E.2d 824, 827 (Ohio Ct. App. 1992),
for example, a city inspector cited a business owner for failing to display a “no
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smoking” sign in her beauty salon. 614 N.E.2d at 825. The inspection of the salon,
which was open to the public, was conducted over the owner’s objection. Id.
Affirming suppression of evidence, the court noted the relevant authorizing code
section: “The Administrator or other member of the Agency may enter at any
reasonable time, with reasonable notice into or upon any private or public property
. . . for the purpose of inspection . . . .” Id. at 826 (emphasis in original). The court
reasoned that “the fact that [the code] permits entry onto premises for inspection
only ‘with reasonable notice’ makes patent the intention of the drafters of the
ordinance that [the owner] is to be afforded a privacy interest for her place of
business.” Id. at 827.
The officer, in this sense, “stands in no better position than a member of the
public.” Barlow’s, Inc., 436 U.S. at 315. At least on the facts of this case, so too is
he unable to enter for inspection over an owner’s notice of trespass and without an
administrative or other warrant.
This finding is in accord with opinions by the Office of the Florida Attorney
General. See Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459,
473 (Fla. 2005) (noting that an Attorney General opinion “is entitled to careful
consideration and generally should be regarded as highly persuasive”). Citing See
v. City of Seattle, 387 U.S. 541, and Florida’s state inspection regime, the Florida
Attorney General has more than once opined that “a municipal code inspector is
44
without authority to enter onto any private, commercial, or residential property to
assure compliance with or to enforce the various technical codes of the county or
to conduct any administrative inspections or searches without the consent of the
owner or the operator or occupant of such premises, or without a duly issued
search or administrative inspection warrant.” Fla. Att’y Gen. Op. 2002-27 (2002),
2002 WL 508796 (emphasis added); Fla. Att’y Gen. Op. 1984-32; cf. Beverly v.
Div. of Beverage of Dep’t of Bus. Regulation, 282 So. 2d 657, 660 (Fla. 1st DCA
1973) (“The fact that two different Attorney Generals have reached the same
conclusion with respect to the exact issue now before us lends considerable
persuasive influence to their opinions and weighs heavily in favor of our
conclusion herein.”).
The persuasive Florida Attorney General opinions are certainly most
applicable and cogent when they apply to the conduct of low-level state actors such
as the Town. See State v. Family Bank of Hallandale, 623 So. 2d 474, 478 (Fla.
1993) (citation omitted) (“The official opinions of the Attorney General, the chief
law officer of the state, are guides for state executive and administrative officers in
performing their official duties until superseded by judicial decision.”). The
opinions further highlight a thread that runs throughout the U.S. Supreme Court’s
administrative search jurisprudence: an unconsented administrative inspection
(with rare exceptions) must be subject to precompliance review. Patel, 135 S. Ct.
45
at 2451-52. As Professor LaFave has noted, under See v. City of Seattle, “in the
absence of consent to conduct such an [administrative] inspection [for an unsafe
condition/code violation] a warrant would be required, albeit one issued under a
“flexible standard of reasonableness.” 5 W. LaFave, Search and Seizure at 59 (5th
ed. 2012). Fortunately, Florida’s statutory administrative inspection scheme
provides for such review, while the Town’s ordinance does not.
The full panoply of Florida administrative inspection remedies is available
to the Town. Consistent with the Florida Attorney General opinions and at least as
applied to the nonconsenting Café on these facts, the Town must follow the Florida
statutory scheme for inspections and may not rely on subsection (c)(2) to inspect
the Sweet Sage Café.
Count IV.
Common Law Trespass Against the Town and the Sheriff
Plaintiffs Sweet Sage and SS16725 next bring a claim of trespass under
Florida common law. Reciting language from Count II, Plaintiffs allege that
Defendants have “repeatedly, without permission and in disregard for the property
rights of [Plaintiffs], entered the Sweet Sage Café causing substantial disturbance
to the business.” Dkt. 56 ¶ 85. Though a trespass action does not necessarily
require a “search,” the same considerations guide the Court’s analysis.
“Civil trespass to real property occurs when there is an injury to or use of the
land of another by one having no right or authority.” Gunning v. Equestleader.com,
46
Inc., 253 So. 3d 646, 648 (Fla. 2d DCA 2017) (citation omitted). Consent is a
defense to trespass. See Fla. Pub. Co. v. Fletcher, 340 So. 2d 914, 917 (Fla. 1976).
As mentioned above, the Deputies entered the Café to count seats in the area
open to the public. No one at the Café ever told them to leave. Mr. Messmore even
admitted that, prior to the May 2018 letter, he had “never accused them of
trespassing” and did not believe they had committed trespass. Dkt. 82-5 at 19.
Again, in the absence of any liability, prospective injunctive relief is inappropriate.
Judgment in favor of Defendants is granted on Count IV.
Count V.
Declaratory Relief on Revised Business Tax Receipt Ordinance
In their final count, Plaintiffs seek a declaration that Ordinance 2018-804
violates Florida law. Dkt. 56 at 22. Plaintiffs observe that, “[p]ursuant to Section
205.042, Florida Statutes, prior to adopting an ordinance levying a business tax, a
municipality must publish a notice between the first and last reading of [the]
ordinance in a newspaper of general circulation within its jurisdiction and the
notice must contain the proposed classifications and rates applicable to the
business tax.” Id. ¶ 92. Plaintiffs argue that the Town’s notice on the new
ordinance did not include the classifications and rates as required.
Plaintiffs additionally allege that the Town lacks authority to do the
following: levy taxes outside the authority delegated to municipalities by statute
under Chapter 205, id. ¶ 94; reinstate the use of the term “business license” after it
47
has been eliminated by the Florida legislature, ¶ 95; require businesses to provide
information irrelevant for the computation of business, such as the number of seats,
¶¶ 97-98; require businesses to attest to the truthfulness of information that will be
utilized in the enforcement of the Town Code, ¶ 99; or require businesses to
consent to inspections of business records, by federal state, county and Town
inspectors, ¶ 100.
The Court agrees with the Town that Ordinance 2018-804 did not itself levy
a business tax that, indeed, had existed before the ordinance. Ordinance 2018-804
merely clarifies on whom the prior existing tax applies and revises the process and
standards of applying for a business tax receipt. See Dkt. 75-4 at 3. Because no
rates or classifications were created or changed, the additional requirements of
Chapter 205 do not apply. Plaintiffs’ reliance on Broward Cty., Fla. Bd. of Cty.
Comm’rs. v. Burnstein, 470 So. 2d 793, 794 (Fla. 4th DCA 1985), a case where a
new ordinance doubled levied taxes, is inapplicable.
As a general matter, Florida municipalities possess broad authority to enact
ordinances. City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006)
(citing Florida Constitution, Art. VIII, § 2(b); Fla. Stat. § 166.021(1), (3)(c), (4)).
“Under its broad home rule powers, a municipality may legislate concurrently with
the Legislature on any subject which has not been expressly preempted by the
State.” Id. (citations omitted). Preemption may also be implied “when the state
48
legislative scheme is pervasive and the local legislation would present a danger of
conflict with that pervasive scheme.” D’Agastino v. City of Miami, 220 So. 3d 410
(Fla. 2017) (citation omitted).
The provisions of Ordinance 2018-804 do not seem to implicate matters
either expressly or implicitly preempted by the State. Plaintiffs, moreover, do not
cite persuasive authority in support of most complaints against the Ordinance. For
example, it is not immediately clear to the Court why a municipality cannot require
seating information, which is relevant to a code provision, on an application for a
business tax receipt. While Plaintiffs argue that nothing in Chapter 205, Florida
Statutes, authorizes this and other requirements the ordinance imposes, it is equally
true that nothing expressly forbids such conditions.7 As for the nomenclature of
“license” to replace “tax receipt,” the Court finds that such a technical point cannot
invalidate the entire Ordinance. Summary judgment is granted on Count V in favor
of the Town.
CONCLUSION
The Court GRANTS and DENIES in part the Town’s motion for summary
judgment, Dkt. 73, GRANTS the Sheriff’s motion for summary judgment, Dkt. 81,
and GRANTS Plaintiffs’ motion for summary judgment, Dkt. 71. The Clerk is
7
The Court need not address the ordinance provisions that implicate the Fourth Amendment and have
been stricken, thereby mooting Plaintiffs’ complaints at paragraphs 96 and 101.
49
directed to enter judgment in favor of Defendants on Counts II and IV of the Second
Amended Complaint, thereby closing the case against the Sheriff. The Clerk is
further directed to enter judgment in favor of Plaintiffs on Count III. Subsection
(c)(3) of Section 66-45 of the Town’s Business Tax Code is deemed
unconstitutional. The Town is hereby enjoined from inspecting the Café or any
business under subsection (c)(3) of Town Code Section 66-45. The Town is also
ordered to remove the following language from its business tax receipt application:
and that as a condition of the privilege of conducting
business within the Town, consent to the Town’s Code
Enforcement Officer to periodically conduct inspections
of the business premises during business hours to
confirm information provided in this Application is true,
and to verify that the business is complying with Town
code provisions governing the business’s condition,
conduct and operations, is hereby given.
The Town is further enjoined from inspecting the Café pursuant to Town Code
Section 66-45, subsection (c)(2). The Clerk is further directed to enter judgment in
favor of the Town on Count V. Only Count I against the Town remains for trial.
50
This Order has no limiting effect upon any administrative searches/inspections under
the Florida Statutes by whomever performed, nor proper warrantless searches or
inspections under the beverage laws, appropriate criminal laws, etc.
DONE AND ORDERED at Tampa, Florida, on March 29, 2019.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
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