Sanchez v. City of South Miami

Filing 35

ORDER denying 28 Motion to Dismiss for Failure to State a Claim. Signed by Judge Cecilia M. Altonaga on 4/22/2013. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12-24227-CIV-ALTONAGA/Otazo-Reyes
JULIO SANCHEZ,
Plaintiff,
vs.
CITY OF SOUTH MIAMI,
Defendant.
______________________________/
ORDER
THIS CAUSE came before the Court on Defendant, City of South Miami’s
(“Defendant[’s]” or “the City[’s]”) Motion to Dismiss Counts III, IV, and V of the Second
Amended Complaint (“Motion”) [ECF No. 28], filed on February 4, 2013. Plaintiff, Julio
Sanchez (“Sanchez” or “Plaintiff”), brought this damages and declaratory action against the City
for violations of Plaintiff’s civil rights under 42 U.S.C. section 1983 (“Section 1983”). (See
Second Am. Compl. ¶ 3 [ECF No. 23]). Counts III, IV, and V allege constitutional violations of
the First, Fourth, and Fourteenth Amendments, respectively. (See id. ¶¶ 69–83). The Court has
carefully reviewed the Motion, the record, and applicable law.
I. BACKGROUND1
This case concerns claims against the City arising from Sanchez’s arrest for violating the
City’s Noise Ordinance, Section 15-81 (“Noise Ordinance”). (See id. ¶ 34). On December 12,
2009 Sanchez held a “Quinces” or “Fifteenth” birthday party for his daughter at his home in
South Miami. (See id. ¶ 10). The party began around 7:30 p.m. and was attended by twenty to
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The Court takes the allegations in the Second Amended Complaint as true.

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thirty children; Sanchez, Sanchez’s wife, and parents of some of the guests chaperoned the party.
(See id. ¶¶ 11-12). A DJ played music on the patio area of the home. (See id. ¶ 11). Sanchez
served snacks and soft drinks at the party, but no alcohol. (See id. ¶¶ 13-14).
At approximately 9:30 p.m., South Miami Police Officer Rodriguez (“Rodriguez”)
arrived at the Sanchez home to investigate a noise complaint. (See id. ¶ 17). Rodriguez
requested that the volume of the music system be turned down. (See id. ¶ 20). Sanchez
complied with Rodriguez’s request and took the precautionary step of having one of the sound
system speakers unplugged. (See id. ¶¶ 21-22). Sanchez then asked Rodriguez if the noise level
was appropriate and lawful. (See id. ¶ 23). Rodriguez stated that the noise level was appropriate
and could continue at that level. (See id. ¶ 24). After Rodriguez left the Sanchez home the
volume of the music was not increased. (See id. ¶ 29).
Approximately one hour after Rodriguez left, South Miami Police Officer Vigil (“Vigil”)
arrived at the Sanchez home and ordered the music to be turned off and the party to end. (See id.
¶ 30). Vigil told Sanchez that the music was too loud and in violation of the Noise Ordinance.
(See id. ¶ 31). Sanchez explained to Vigil the volume of the music had not changed from the
level that Rodriguez had previously approved. (See id. ¶ 32). Vigil arrested Sanchez and
charged him with violating the Noise Ordinance. (See id. ¶ 34). In doing so Vigil stated “myself
as an officer cannot say what the proper [noise] level is,” and “if somebody calls and complains,
regardless of how loud or not loud it is, it constitutes a violation.” (Id. ¶ 43 (alterations in
original and emphasis removed)). The City provides no training or guidelines to its officers as to
what constitutes a violation of the Noise Ordinance. (See id. ¶ 44).

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As a result of Sanchez’s arrest the party ended, and parents were called to pick up their
children early. (See id. ¶¶ 49-50). When parents arrived, they found Sanchez handcuffed, sitting
in the back of a South Miami police car. (See id. ¶ 50). A criminal prosecution was instituted
against Sanchez in the County Court of Miami-Dade County. (See id. ¶ 51). All charges were
dismissed on May 13, 2010. (See id. ¶ 52).
The operative complaint in this action is now in its third iteration. Sanchez originally
filed the action in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida on February 3, 2011, alleging state tort claims for “false imprisonment/arrest”
and “battery.” (Notice, Ex. A Part 1, at 3–7 [ECF No. 1-2]). Leave to amend to add Count III —
a 42 U.S.C. section 1983 claim against a municipality — was granted by the state court on
October 30, 2012 (see Notice, Ex. A Part 2, at 72 [ECF No. 1-3]), and Plaintiff subsequently
filed his First Amended Complaint.

(See id. 73–78).

The matter was then removed on

November 28, 2012. (See Notice [ECF No. 1]). By Order dated January 7, 2013 [ECF No. 19],
the Court granted Defendant’s Motion to Dismiss Count III [ECF No. 7], but permitted Plaintiff
leave to amend. Plaintiff filed his Second Amended Complaint on January 14, 2013, adding
Counts III (titled, “Violation of First Amendment, 42 U.S.C. § 1983), IV (titled, “Violation of
Fourth Amendment, 42 U.S.C. § 1983”), and V (titled, “Violation of Fourteenth Amendment, 42
U.S.C. § 1983”). (Second Am. Compl. 8–10). Defendants now seek to dismiss these three
counts.
II. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
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Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550
U.S. at 555). Pleadings must contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Indeed,
“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal,
129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a
plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at
556).
When reviewing a motion to dismiss, a court must construe the complaint in the light
most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue
Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
III. ANALYSIS
A. Count III — First Amendment Claim
Sanchez alleges in Count III that the Noise Ordinance is unconstitutionally vague and
overbroad, and enforcement of the Noise Ordinance, therefore, prohibits “constitutionally
protected expressive conduct and the fundamental right of association” in violation of Sanchez’s
First Amendment rights. (Second Am. Compl. ¶ 72). Defendant appears to contend Plaintiff
fails to state a First Amendment claim for three reasons: (1) the Noise Ordinance is
presumptively valid (see Mot. 3); (2) the Noise Ordinance does not qualify as an actionable
“custom and policy” under Monell v. Department of Social Services, 436 U.S. 658 (1977) (see
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Case No. 12-24227-CIV-ALTONAGA
Reply 1, 3); (3) Plaintiff does not seek to declare the Noise Ordinance unconstitutional (see Mot.
4 n.2); and (4) even if Plaintiff were seeking to declare the Noise Ordinance unconstitutional,
“such a claim would fail because [the Noise Ordinance] is rationally related to a legitimate
governmental interest” (id.). The Court addresses these arguments in turn.
Defendant first argues that the Noise Ordinance is presumptively valid, and thus Vigil
“was not required to risk being charged with dereliction of duty if he did not arrest Plaintiff” for
allegedly violating the Noise Ordinance. (Mot. 3 (internal quotation marks omitted)). Even if
the City were correct that a claim brought against Vigil would fail for this reason, Plaintiff has
not brought suit against Vigil. Rather, Plaintiff has brought suit against the City in its municipal
capacity, and the City fails to explain why this argument is applicable to it.
Indeed, the Supreme Court in Monell held that “municipalities and other local
government units [were] to be included among those persons to whom § 1983 applies,” and
therefore “[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers.” 436 U.S. at 690 (emphasis added and footnote call
numbers omitted). Here, Plaintiff claims unconstitutional restriction of his First Amendment
rights occurred as a result of the City’s execution of the Noise Ordinance. This claim falls
squarely within the type of municipal liability contemplated by Monell and does not require the
Court to expand Monell’s application, contrary to Defendant’s second argument. That Plaintiff
does not allege a “custom” or “policy” is not fatal to his claim because Monell applies equally to
official ordinances and regulations, such as the Noise Ordinance, as well as to “governmental
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‘custom’ even though such a custom has not received formal approval through the body’s official
decisionmaking channels.” 430 U.S. at 691.
Defendant’s third argument rests on Plaintiff’s purported failure to seek to have the Noise
Ordinance declared unconstitutional (see Mot. 4 n.2), and not on whether Plaintiff has plead facts
sufficient to support his claim that enforcement of the Noise Ordinance infringed upon Plaintiff’s
First Amendment rights. The Second Amended Complaint clearly alleges, however, “South
Miami Ordinance Section 15-81 is unconstitutional both on its face and as applied to Plaintiff, in
that it is vague, overbroad and punishes constitutionally protected expressive conduct and the
fundamental right of association in violation of the First Amendment to the United States
Constitution.” (Second Am. Compl. ¶ 72). Furthermore, in stating the relief sought, “Plaintiff
respectfully requests this Court [to] . . . [d]eclare that South Miami Ordinance Section 15-81 is
unconstitutional on its face and as applied to Plaintiff Sanchez.” (Id. 11).
Finally, Defendant argues in a footnote that Count III fails because the Noise Ordinance
“is rationally related to a legitimate governmental interest.” (Mot. 4 n.2). In support, the City
relies on Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012), and Restigouche, Inc. v. Town
of Jupiter, 59 F.3d 1208 (11th Cir. 1995). The City’s reliance on these cases is inapposite.
These cases outline that the rational basis test applies to determine the constitutionality of
ordinances concerning taxation and zoning issues, respectively, and neither addresses claims of
First Amendment violations. As the City should be aware, in the First Amendment arena, the
standard is strict scrutiny. See e.g., Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (“Our
cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the
fact that communication is involved; the regulation must be narrowly tailored to further the
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State’s legitimate interest.” (footnote call numbers omitted)); Grand Faloon Tavern, Inc. v.
Wicker, 670 F.2d 943, 946 (11th Cir. 1982) (“Under the doctrine of overbreadth, a court may
deny the enforcement of an ordinance that at the expense of First Amendment freedoms, reaches
more broadly than is reasonably necessary to protect legitimate (governmental) interests.’”
(internal quotation marks, alterations, and citation omitted)); Broadrick v. Oklahoma, 413 U.S.
601, 611–12 (1973) (“[S]tatutes attempting to restrict or burden the exercise of First Amendment
rights must be narrowly drawn and represent a considered legislative judgment that a particular
mode of expression has to give way to other compelling needs of society.” (citation omitted)).
The City does not examine the Noise Ordinance under the appropriate standard.

Further,

Sanchez alleges facts — that his daughter’s party came to a premature end as a result of his
arrest, rendering Sanchez and his family and friends unable to enjoy the traditional rituals of such
a party — indicating his First Amendment rights were violated as a result of the Noise
Ordinance. (See Second Am. Compl. ¶¶ 30–36).
For the foregoing reasons, the City’s Motion to dismiss Count III is denied.
B. Count IV — Fourth Amendment Claim
Sanchez alleges in Count IV that he was “unreasonably and unlawfully seized” in
violation of his Fourth Amendment rights when Vigil arrested him for violating the Noise
Ordinance.

(Second Am. Compl. ¶ 77).

It appears Sanchez contends his seizure was

unreasonable and unlawful because the Noise Ordinance — pursuant to which he was arrested —
is unconstitutional; Sanchez’s arrest by Vigil implicates Defendant because the City
“implement[ed] and execut[ed]” the Noise Ordinance. (Id. ¶ 76; see also Resp. 9). Defendant
asserts these allegations fail to state a claim for three reasons: (1) “police officers act lawfully
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when they arrest individuals, even if the ordinance at issue is later . . . found [to be]
unconstitutional” (Mot. 3)2; (2) Plaintiff fails to allege any facts “indicating that the City had a
policy of permitting its officers to conduct unlawful detentions of those who violate its
ordinances” (id. 5); and (3) Plaintiff may not hold the City liable under the doctrine of
respondeat superior (see id.). The Court addresses these arguments in turn.
Defendant’s first argument is premised on whether Vigil’s conduct constitutes an
unreasonable and unlawful seizure in the context of a Fourth Amendment violation.

A

municipality may be held “liable for the actions of a police officer only when municipal ‘official
policy’ [or custom] causes a constitutional violation.” Gold v. City of Miami, 151 F.3d 1346,
1350 (11th Cir. 1998) (citing Monell, 436 U.S. at 694–95). Thus, Plaintiff cannot assert a claim
for Monell liability in Count IV if he fails to sufficiently allege a violation of his Fourth
Amendment rights.
Sanchez does not assert that Vigil failed to act in good faith or without probable cause
when making the subject arrest; rather, Sanchez solely takes issue with the Noise Ordinance’s
constitutionality.

According to Defendant, it is well established that an arrest based on a

presumptively valid law precludes a claim for false arrest. (See Mot. 2–3 (citing Pierson v. Ray,
386 U.S. 547 (1967); Michigan v. DeFillippo, 443 U.S. 31 (1979)). The Supreme Court in
Pierson, however, acknowledged that “the matter is not entirely free from doubt.” Pierson, 386
U.S. at 555 (footnote call number omitted) (citing RESTATEMENT (SECOND)

OF

TORTS § 121

caveat, at 207–08 (1965)). The Court went on to illustrate that narrow band of doubt:

The City raised this argument with respect to Plaintiff’s First Amendment claim, see supra 5, however,
the Court finds it aptly applies to Count IV, and therefore also considers it as to this claim.
2

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Police are charged to enforce laws until and unless they are declared
unconstitutional. The enactment of a law forecloses speculation by enforcement
officers concerning its constitutionality — with the possible exception of a law so
grossly and flagrantly unconstitutional that any person of reasonable prudence
would be bound to see its flaws. Society would be ill-served if its police officers
took it upon themselves to determine which laws are and which are not
constitutionally entitled to enforcement.
DeFillippo, 443 U.S. at 38 (emphasis added).
The text of the Noise Ordinance states: “No person shall create any loud or boisterous
noise which may annoy persons on any street or sidewalk or in any building adjacent thereto.”
CITY

OF

S. MIAMI, FLA., ORDINANCES ch. 15, art. III, § 15-80. Although Plaintiff does not

expressly allege the Noise Ordinance exhibits a vagueness obvious to any person of reasonable
prudence, Sanchez does allege that two City of Miami police officers, Rodriguez and Vigil,
whose responsibilities include enforcing the City’s ordinances, could not agree whether Plaintiff
had violated the Noise Ordinance.

(See Second Am. Compl. ¶¶ 24, 31–32).

Ostensibly,

“[c]onduct that annoys some people does not annoy others.” Coates v. City of Cincinnati, 402
U.S. 611, 614 (1971). Indeed, according to Sanchez, Vigil stated that “if somebody calls and
complains, regardless of how loud or not loud it is, it constitutes a violation.” (Second Am.
Compl. ¶ 43 (emphasis added)). Thus, even in the light of DeFillippo’s standards, Sanchez
adequately alleges that his Fourth Amendment rights were violated as required by Iqbal and
Twombly. See also infra 11 (discussing Plaintiff’s allegations from which vagueness can be
inferred in the context of Plaintiff’s Fourteenth Amendment claim).
The City next argues that Plaintiff fails to state a “policy” because “[t]he Complaint fails
to identify any facts indicating that the City had a policy of permitting its officers to conduct
unlawful detentions of those who violate its ordinances.”
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(Mot. 5 (emphasis removed)).

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Plaintiff has repeatedly argued, however, that the policy with which he takes issue is the Noise
Ordinance itself. (See, e.g., Resp. 3). As the Court has discussed, a city ordinance is an official
policy that can subject a municipality to Section 1983 liability. See supra 5. Thus, as Plaintiff
adequately states a claim for Monell liability, Defendant’s argument that Plaintiff improperly
seeks to hold the City liable under a respondeat superior theory lacks merit.
C. Count V — Fourteenth Amendment Claim
In Count V, Plaintiff raises a vagueness challenge to the Noise Ordinance under the due
process clause of the Fourteenth Amendment.

(See Second Am. Compl. ¶¶ 79, 81–82).

Specifically, Plaintiff alleges that implementation of the vague ordinance — where enforcers
give conflicting information about what constitutes a violation, cannot say explicitly what
constitutes compliance, and are given no guidelines regarding what constitutes a violation —
leads to enforcement that is arbitrary and therefore a violation of “Plaintiff’s rights to due
process of law and equal protection under the Fourteenth Amendment to the United States
Constitution.” (Id. ¶¶ 32–33, 42–43, 82). Defendant asserts these allegations fail to state a claim
for two reasons: (1) claims for false arrest are properly brought under the Fourth, not the
Fourteenth, Amendment (see Mot. 5–6); and (2) the Second Amended Complaint’s “vague
reference to ‘arbitrary and capricious conduct’ and violation of due process is insufficient to state
a claim” (see id. 6).
Defendant’s first argument fails because Plaintiff does not bring a claim for false arrest in
Count V.

Rather, Plaintiff challenges the Defendant’s implementation, execution, and

enforcement of the Noise Ordinance as violating the Plaintiff’s Fourteenth Amendment rights.
(See Second Am. Compl. ¶¶ 81–82). “It is a basic principle of due process that an enactment is
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void for vagueness if its prohibitions are not clearly defined.” Grayned, 408 U.S. at 108.
Plaintiff alleges he was given conflicting statements from Rodriguez and Vigil regarding whether
Plaintiff violated the Noise Ordinance; that Vigil asserted officers “cannot say what the proper
[noise] level is”; and that no training is provided to officers as to what constitutes a violation.
(Second Am. Compl. ¶¶ 24, 31, 32, 42–43).
Although Plaintiff does not specifically assert that the Noise Ordinance is “void for
vagueness” in Count V, he alleges facts from which vagueness can be reasonably inferred. The
Court “will not dismiss an action simply because a plaintiff fails to use ‘magic words’ when the
pleading is otherwise sufficient.” Platinum Estates, Inc. v. TD Bank, N.A., No. 11-60670-CIV,
2012 WL 760791, at *3 (S.D. Fla. Mar. 8, 2012) (quoting Cabrera v. Martin, 973 F.2d 735, 745
(9th Cir. 1992)). The Noise Ordinance prohibits “any loud or boisterous noise which may annoy
persons,” CITY OF S. MIAMI, FLA., ORDINANCES ch. 15, art. III, § 15-80, and the Supreme Court
has held that “[t]he First and Fourteenth Amendments do not permit a State to make criminal the
exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people.”
Coates, 402 U.S. at 615. The Supreme Court found the ordinance in Coates to be vague, “not in
the sense that it requires a person to conform his conduct to an imprecise but comprehensible
normative standard, but rather in the sense that no standard of conduct is specified at all. As a
result, ‘men of common intelligence must necessarily guess at its meaning.’” Id. at 614 (citation
omitted).
Defendant’s second argument fails for essentially the same reasons. Plaintiff alleges
facts that imply the Noise Ordinance is subject to arbitrary enforcement. (See Second Am.
Compl. ¶¶ 24, 31, 32, 42–43, 82). Arbitrary enforcement lies at the heart of a “void for
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vagueness” due process claim. Grayned, 408 U.S. at 108–09 (“[I]f arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.” (footnote call numbers omitted)); see also Hynes v. Mayor &
Council of Borough of Oradell, 425 U.S. 610, 620 (1976) (“As a matter of due process, ‘[n]o one
may be required at peril of life, liberty or property to speculate as to the meaning of penal
statutes. All are entitled to be informed as to what the State commands or forbids.’ The general
test of vagueness applies with particular force in review of laws dealing with speech.” (quoting
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939))).

Plaintiff adequately alleges that his

Fourteenth Amendment rights were violated pursuant to the standard set forth in Iqbal and
Twombly.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 28] is DENIED.
DONE AND ORDERED in Miami, Florida, this 22nd day of April, 2013.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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