HomeMy Public PortalAboutOrder on Motion to Dismiss (O'Boyle)LAW OFFICES
JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A.
_ A PROFESSIONAL ASSOCIATION
DAMIAN H. ALBERT, PA.
SCOTT O. ALEXANDER, PA,
2455 EAST SUNRISE BOULEVARD
W. HAMPTON JOHNSON, IV
CHRISTOPHER AMBROSIO
SUITE IOW
J. MARCOS MARTINEZ
MICHAEL T. BURKE'r
FORT LAUDERDALE, FL 33304
ROBERT E. MURDOCH
HUDSON C. GILL
MICHAEL R. PIPER
JEFFREY L HOCHMAN. PA,
DAVID M. SCHWEIGER, PA,
E. BRUCE JOHNSON •
(954)4&}0100 &avard
CHRISTOPHER L SMRH
(305) 9452000 Dad.
CHRISTOPHER J. STEARNS, PA.
(SBI)840.7448 NPO
•adMOCrxRRF'JC/nt 1NAL LIMTGAt
ftmw
TELECOPIER (954) 483.2444
RONALD P. ANSELMO
BURL F. GEORGE
William Thrasher
Town Manager
Town of Gulf Stream
100 Sea Road
Gulf Stream, FL 33483
Re: Martin O'Boyle v.
Claim No.:
Our File No.:
Case No.:
Dear Mr. Thrasher:
November 25, 2014
Town of Gulf Stream
GC2014077401
00640/34107
13-ev-80317-DMM
VIA EMAIL
Enclosed please find a copy of the Order entered by Judge Middlebrooks arantin the
Motion to Dismiss that we filed on your behalf in the above -referenced matter. The Court agreed
with our arguments that the Plaintiff's claims against you must be dismissed with prejudice based
upon the application of qualified immunity.
Please note (1) that the Plaintiff still has an opportunity to appeal the trial court's
determination in your favor and (2) that your assistance will still be needed as a material witness in
connection with the remaining claims directed against the Town of Gulfstream. While the Court has
ktrearnfined
liminated all claims which were directed against you, the court also determined at the Plaintiff may
till challenge the validity of the Town's sign ordinance on constitutional grounds. As a result, a
version of this case will proceed to the summary uJ dgment phase'
We will continue to keep you advised regarding the developments in this matter.
Very truly yours
b fig
JeiireHochman
JLH/kmc For the Firm
Enclosure
cc: Joanne M. O'Connor, Esq., Via Email
Irma Cohen, Via Email
COMMISSIONERS
SCOTT W, MORGAN, Mayor
ROBERT W. GANGER, Vice -Mayor
JOAN K. ORTHWEIN
THOMAS M. STANLEY
DONNA S. WHITE
October 28, 2014
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Via E -Mail: moboyle@commerce-group.com
Martin E. O'Boyle
Commerce Group
1280 West Newport Center Drive
Deerfield Beach, Florida 33442
Re: October 21, 2014 letter emailed October 21, 2014 (Demonstration/Parade Permit)
Dear Mr. O'Boyle:
Telephone
(561)276.5116
Fax
(561)737-0188
Town Manager
WILLIAM H. THRASHER
Town Clerk
RITA L. TAYLOR
I am responding to your letter dated October 21, 2014 requesting information about a permit and/or
approval necessary for either a demonstration or parade within the Town of Gulf Stream. As of this
date, the Town does not have an ordinance related to such a permit or approval. In the event your
associate intends to do either, it would helpful if he/she could provide the following information in the
interest of public safety and the protection of private property.
I. Advance information, 48 hours, as to when the event will occur
2. The estimated length of time of the event
3. The estimated number of participants
4. The location and/or route of the event
5. The approximate size of any parade elements such as floats, trucks, vehicles, etc
As you know there is a private school located on Gulf Stream Road and an applicable school zone is
marked for your associate's careful consideration. Also, most of the roads within the Town are narrow
and oncoming traffic control may be a safety issue. Finally, the SR AIA is not under the Town's
jurisdiction. If your associate's demonstration or parade is intended to occur on SR AIA, the Town
suggests that you contact FDOT directly.
Sincerely,
William H. Thrasher
Town Manager
Cc: Mayor and Town Commission
Town Clerk
Police Chief
100 SEA ROAD, GULF STREAM, FLORIDA 33483
AMENDED REQUEST
RECORDS REQUEST (the "Request")
Date of Request: 1/13/2015
Requestor's Request IDd: 787
REQUESTEE: Custodian of Records Town of Gulf Stream
REQUESTOR Airline Highway, LLC
REQUESTOR'S CONTACT INFORMATION: E -Mail: records@commerce-group.com
Fax: 954-360-0807; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST: Please provide all communications and transmittal letters to the Palm Beach
County Health Department In regard to any recommendation or requirements to boil water
which existed In whole or in part during the month of August 2014; and any test results which were
provided to the Palm Beach County Health Department In August of 2014.
ADDITIONAL INFORMATION REGARDING REQUEST:
THIS REQUEST IS MADE PURSUANT TO PUBLIC RECORDS ACT,
CHAPTER 119 OF THE FLORIDA STATUTES AND IS ALSO REQUESTED UNDER THE
COMMON LAW RIGHT TO KNOW, THE COMMON LAW RIGHT OF ACCESS; AND
ANY STATUTORY RIGHT TO KNOW (INCLUDING, WITHOUT LIMITATION, ANY
STATUTORY RIGHT OF ACCESS, AS APPLICABLE). THIS REQUEST IS ALSO MADE
PURSUANT TO THE RIGHTS OF THE REQUESTOR PROVIDED IN THE FLORIDA
CONSTITUTION.
IT IS REQUESTED THAT THIS RECORDS REQUEST BE FULFILLED IN ELECTRONIC
FORM. IF NOT AVAILABLE IN ELECTRONIC FORM IT IS REQUESTED THAT THIS
RECORDS REQUEST BE FULFILLED ON 11 X 17 PAPER. NOTE IN ALL CASES (UNLESS
IMPOSSIBLE) THE COPIES SHOULD BE TWO SIDED AND SHOULD BE BILLED IN
ACCORDANCE WITH Section 119.07(4) (a) (2)
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BYE MAIL DELIVERY
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC
RECORDS REQUEST IN ADVANCE.
It will be required that the Requester approve of any costs, asserted by the Agency (as defined in
Florida Statute, Chapter 119.01 (Definitions)), In advance of any costs imposed to the Requester by
the Agency.
I:P/NPR/FRR
NMI. 13 FORM
fi0e__!C_-2 tJ 44-c _
RECORDS REQUEST (the "Request")
Date of Request: 8/28114
Requestor's Request ID#: 787
REQUESTEE: Custodian of Records Town of Gulf Stream
REQUESTOR: Airline Highway, LLC
REQUESTOR'S CONTACT INFORMATION: E -Mail: records@commerce-group.com
Fax: 954-360-0807; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST: Please provide all communications and transmittal letters to the Palm Beach
County Health Department In regard to any recommendation or requirements to boil water
which existed In Holem Park during the month of August 2014: and anv test residts whi,h was
provided to the Palm Beach County Health Department In August of 2014.
ADDITIONAL INFORMATION REGARDING REQUEST:
THIS REQUEST IS MADE PURSUANT TO PUBLIC RECORDS ACT,
CHAPTER 119 OF THE FLORIDA STATUTES AND IS ALSO REQUESTED UNDER THE
COMMON LAW RIGHT TO KNOW, THE COMMON LAW RIGHT OF ACCESS; AND
ANY STATUTORY RIGHT TO KNOW (INCLUDING, WITHOUT LIMITATION, ANY
STATUTORY RIGHT OF ACCESS, AS APPLICABLE). THIS REQUEST IS ALSO MADE
PURSUANT TO THE RIGHTS OF THE REQUESTOR PROVIDED IN THE FLORIDA
CONSTITUTION.
ITIS REQUESTED THAT THIS RECORDS REQUEST BE FULFILLED IN ELECTRONIC
FORM. IF NOT AVAILABLE IN ELECTRONIC FORM IT IS REQUESTED THAT THIS
RECORDS REQUEST BE FULFILLED ON 11 X 17 PAPER. NOTE IN ALL CASES (UNLESS
IMPOSSIBLE) THE COPIES SHOULD BE TWO SIDED AND SHOULD BE BILLED IN
ACCORDANCE WITH Section 119.071.1 1-1 —
ALL ELECTRONIC COPIES ARE REOUESTED TO BE SENT BY E-MAIL DELIVERY
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC
RECORDS REQUEST IN ADVANCE.
It will be required that the Requester approve of any costs, asserted by the Agency (as defined in
Florida Statute, Chapter 119.01 (Definitions)), in advance of any costs imposed to the Requester by
the Agency.
I:P/NPR/FRR
04.2-1.13 FORM
LAW OFFICES
JOHNSON, ANSELM09
MURDOCH, BURKE, PIPER & HOCHMAN,
P.A.
A PROFESSIONAL ASSOCIATION
DAMIAN H. ALBERT, P.A.
SCOTT D. ALEXANDER, P.A.
MICHAEL T. BURKE't
2455 EAST SUNRISE BOULEVARD
J. MARCOS MARTINEZ
HUDSON C. GILL
SUITE 1000
FORT LAUDERDALE, FL 33304
ROBERT E. MURDOCH
MICHAEL R. PIPER'
JEFFREY L. HOCHMAN, PA.
E. BRUCEJOHNSON'
DAVID M. SCHWEIGER, P.A.
W. HAMPTON JOHNSON, IV
CHRISTOPHER L. SMITH
(954)4830100 B..rd
CHRISTOPHER J. STEARNS, P.A.
'ewip rL4R7}Epcna rxui uPT£AS
(305)945-2000 Dad.
(581)840-7448 WPB
+[mm
RONALD P. ANSELMO
TELECOPIER (954) 483-2444
BURL F. GEORGE
December 30, 2014
William Thrasher VIA EMAIL
Town Manager
Town of Gulf Stream
100 Sea Road
Gulf Stream, FL 33483
Re: Martin O'Boyle v. Town of Gulf Stream
Claim No.: GC2014077401
Our File No.: 00640/34107
Case No.: 13-cv-80317-DMM
Dear Mr. Thrasher:
The Plaintiff has requested to take the depositions of Town employees Brian Dietrich, Wayne
Songer, and Sergeant John Haseley. He also indicated that he may take your deposition, but has not made
a final determination. Please advise if these individuals are available for depositions on January 22, 2015,
and January 23, 2015. Also, please advise if a room in the Town administrative building would be
available for depositions on this day. If so, I believe it would be more convenient for the Town employees
to have all the depositions scheduled at the Town to minimize the impact on their working days.
Please also be advised that the Plaintiff has indicated an intent to take the depositions of at least
two non -Town employees including George Delafield, and would like to schedule these depositions at the
same location as the depositions of the Town employees. Please advise if there is any issue with having
these non -employees deposed in the Town administrative building.
I look forward to hearing from you.
HCG/bbl
Very truly yours,
/s/ Hudson C. Gill
Hudson C. Gill
For the Firm
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 1 of 30
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-80317-CIV-MIDDLEBROOKSBRANNON
MARTIN E. O'BOYLE,
Plaintiff,
V.
THE TOWN OF GULF STREAM,
WILLIAM THRASHER, and GARRET
WARD,
Defendants.
ORDER ON MOTION TO DISMISS
THIS CAUSE comes before the Court upon Motion to Dismiss [DE 351 ("Motion") filed
by Defendants Town of Gulf Stream ("Town"), William Thrasher ("Thrasher"), and Garret Ward
("Ward") (collectively, "Defendants") on May 29, 2014. Plaintiff Martin E. O'Boyle
("Plaintiff') filed a Response in Opposition to Defendants' Motion to Dismiss ("Response") [DE
421 on June 30, 2014, to which Defendants filed a Reply ("Reply") [DE 45] on July 17, 2014.
The Court has reviewed the Motion, Response, Reply, and the record in this case. For the
reasons that follow, the Motion is granted in part and denied in part.
1. BACKGROUND
In 2014, Plaintiff ran for Town Commissioner "in an overt and highly visible manner."
[Amend. Compl., DE 28 at 1-21. In February 2014, Plaintiff and his employees began placing
signs around the Town. [Id. at T¶ 34-501. Plaintiff alleges that "[o]n February 17, 2014, [a Town
sergeant] created an incident report noting that Plaintiffs signs were in violation of the Town's
code because they were political signs placed in the right of way." [Id. at 138]. Around that
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 2 of 30
date, Plaintiff also alleges that he noticed some of his political signs were missing, and
subsequently found them in the Town's public works garage. [Id. at % 44-45]. Plaintiff
continued to place and re -place his political signs around the Town in various locations,
including on public property and in rights-of-way. [Id. at % 48-49]. Around that time, Plaintiff
also began parking his pickup truck, which had "political campaign banners affixed to stands
place[d] in the bed of the truck, in the Town Hall parking lot," which is used for public parking.
[Id. at 1153-54].
On February 21, 2014, Plaintiff alleges that Town Manager Thrasher ("Thrasher") issued
Plaintiff a charging document from the Town, stating that Plaintiff was in violation of Town
Code § 66-446(a)(5)(d), which prohibits placing political signs anywhere on public property or
rights-of-way. [Id. at 150]. According to Plaintiff Thrasher gave him twelve hours to remove
the signs on public property or rights-of-way and informed him that if he did not, the Town
would do so for him. [Id. at 1151-521. On February 24, 2014, Plaintiff alleges that he received
another charging document stating that his banner -clad truck was in violation of the Town Code
because it carried signs on public property and rights-of-way. [Id. at 157).
On March 1 and 2, 2014, Plaintiff allegedly campaigned door-to-door in the Place Au
Soleil district of the Town and earned the consent of numerous residents to place his signs on
their lawns. [Id. at IT 59-60]. On March 3, 2014, Plaintiff alleges that Thrasher directed Town
police and public works employees to remove all of Plaintiffs signs in rights-of-way in the Place
Au Soleil district. [Id. at $T 63-68]. However, Plaintiff alleges that, during this "sign sweep,"
Town employees not only removed signs in rights-of-way, but also removed some of his signs
placed on private property and not in rights-of-way. [Id. at 9]. According to Plaintiff, numerous
real estate signs were located in rights-of-way, but the Town did not remove those signs. [Id. at
E
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 3 of 30
¶ 77]. He further alleges that "opposition signs were not removed despite being in the Town
right-of-way." [Id.at¶84].
"On January 24, 2014, Plaintiff requested [from the Town] 'a copy of all communications
and Public Records ... sent or received by Scott Morgan [candidate and chairman] of the
Architectural review and Planning Board ... [since 2012]."' [Id. at 192]. Plaintiff alleges that
on February 3, 2014, he received "less than 5 documents," and that on February 7, 2014, he "was
forced to file a public records lawsuit to compel the Town to turn over all of the responsive
documents." [Id. at 1$ 93-95]. On March 12, 2014, the day after the election ended, the Town
allegedly gave Plaintiff over 1400 pages of responsive documents. [Id. at ¶ 96]. Plaintiff alleges
that the Town purposely withheld the documents to prevent Plaintiff from being able to use them
against his opponent Scott Morgan in the election. [Id. at ¶ 97].
On March 11, 2014, "Plaintiff went to Town hall (the polling place) to set up for his final
campaign push for that day's municipal election." [Id. at ¶ 981. Plaintiff alleges that later that
morning "the Town Police and Town public works department, at the direction of Chief Ward,
raided Plaintiffs campaign camp," confiscating some but not all of his banners and signs. [Id. at
1$ 107-117]. Plaintiff further alleges that Chief Ward told him he ordered the raid because he
thought the banners would incite disorder and because Plaintiffs signs exceeded 4 square feet in
area, in violation of Gulf Stream, Fla. Code § 66.446(a)(5)(a), which limits political signs to four
square feet in area. [Id. at ¶¶ 119-120]. Plaintiff further alleges that Chief Ward refused to
return the signs, telling Plaintiff that he had "enough signage" or "too much signage." [Id. at ¶
121].
Plaintiff filed his Amended Complaint [DE 281 on April 28, 2014, asserting that
Defendants' enforcement of the Town's sign ordinance during Plaintiffs election campaign was
3
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 4 of 30
an arbitrary and intentional suppression of undesirable speech. [DE 28]. Plaintiff alleges ten
Counts against Defendants under federal and state law: (Count I) violation of Plaintiff's right to
free speech under the First Amendment against the Town; (Count II) violation of the First
Amendment by enforcement of a facially unconstitutional content -based sign ordinance against
the Town; (Count III) violation of the Florida Constitution by enforcement of a facially
unconstitutional content -based sign ordinance against the Town; (Count IV) violation of the First
Amendment by threatening to remove Plaintiff's campaign truck against the Town, (Count V)
violation of the Florida Constitution by threatening to remove Plaintiff's campaign truck against
the Town; (Count VI) violation of the First Amendment by enforcement of a facially
unconstitutional content -based sign ordinance against Thrasher; (Count VII) violation of the
Florida Constitution by enforcement of a facially unconstitutional content -based sign ordinance
against Thrasher; (Count VIII) violation of Plaintiffs right to equal protection against Thrasher;
(Count IX) violation of Plaintiffs right to free speech under the First Amendment on election
day against the Town; and (Count X) violation of Plaintiffs right to free speech under the First
Amendment against Chief Ward. [DE 28]. Defendants move to dismiss the Amended
Complaint for failure to state a claim. [DE 351.
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a complaint.
See Fed. R. Civ. P. 12(b)(6). In assessing the legal sufficiency of a complaint's allegations, the
Court is bound to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint "must. .
. contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on
its face."' Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 20 10) (quoting
4
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 5 of 30
Twombly, 550 U.S. at 570). "Dismissal is therefore permitted when on the basis of a dispositive
issue of law, no construction of the factual allegations will support the cause of action." Glover
v. Liggett Grp., Inc., 459 F. 3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing
Marshall Cnty. Bd gfEduc. v. Marshall Cnty. Gas Dist., 992 F. 2d 1171, 1174 (1 Ith Cir. 1993)).
When reviewing a motion to dismiss, a court must construe plaintiffs complaint in the
light most favorable to plaintiff and take the factual allegations stated therein as true. See
Erickson v. Pardus, 551 U.S. 89, 93 (2007); Christopher v. Harbtu3% 536 U.S. 403, 406 (2002);
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F. 3d 1364, 1369 (11th Cir. 1997).
However, pleadings that "are no more than conclusions, are not entitled to the assumption of
truth. While legal conclusions can provide the framework of a complaint, they must be supported
by factual allegations." Iqbal, 556 U.S. at 678; see also Sinaltrainal v. Coca-Cola Co., 578 F. 3d
1252, 1260 (1 lth Cir. 2009) (stating that an unwarranted deduction of fact is not considered true
for purpose of determining whether a claim is legally sufficient).
Generally, a plaintiff is not required to detail all the facts upon which he bases his claim.
Fed. R. Civ. P. 8(a)(2). Rather, Rule 8(a)(2) requires a short and plain statement of the claim that
fairly notifies the defendant of both the claim and the supporting grounds. Twombly, 550 U.S. at
555-56. However, "Rale 8(a)(2) still requires a `showing,' rather than a blanket assertion, of
entitlement to relief." Id. at 556 n.3. Plaintiffs "obligation to provide the `grounds' of his
'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." Id. at 555 (citation omitted). "Factual allegations must
be enough to raise [plaintiffs] right to relief above the speculative level, on the assumption that
all of the allegations in the complaint are true." Id.
III. DISCUSSION
G
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 6 of 30
Count I: Violation of Right to Free Speech
In Count 1, Plaintiff alleges that the Town violated his First Amendment rights by
willfully delaying its response to his request for public records until the day after the election
Plaintiff was campaigning for ended, knowing that Plaintiff intended to rely on the requested
documents to criticize one of his opponents in the election. [Amend. Compl., DE 28 at 11271.
These allegations fail to state a claim under the First Amendment.
The Town argues that the right to obtain public records is a right created entirely by state
law, and that there is no corresponding right under federal law to obtain documents from a state
agency such as a municipality. "`Neither the First Amendment nor the Fourteenth Amendment
mandates a right of access to government information or sources of information within the
government's control."' [Motion, DE 35 at 61 (quoting Houchins v. KQED, Inc., 438 U.S. 1
(1978)). In other words, "[t]here is no constitutional right to have access to particular
government information .... The Constitution itself is neither a Freedom of Information Act nor
an Official Secrets Act." Houchins, 438 U.S. at 14.
Plaintiff responds that the Town "miscategorizes the allegations in Count I as a public
records complaint under Chapter 119 of Florida Statutes; rather in Count 1, Plaintiff complains
that the Town willfully disregarded its ministerial duty to produce public records ... [as required
under] Art. I, § 24 of the Florida Constitution and Chapter 119, Florida Statutes," to prevent
Plaintiff from using public documents to criticize the government and fellow candidate and
public official — Scott Morgan ...." [Response, DE 42 at 2-3] (citing Town of Manalapan v.
Rechler, 674 So.2d 789 (4th DCA 1996)). Therefore, Plaintiff argues, "the Town's assertion that
the Constitution does not mandate the production of public records is irrelevant," as Plaintiff
relies instead on those Constitutional provisions mandating "that state actors respect the
li
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 7 of 30
protections in the First Amendment." [Id. at 3]. In support, Plaintiff argues that the First
Amendment protects "political campaign speech despite popular opposition" and "does not
permit a state actor to act with the intent of suppressing speech." [Response, DE 42 at 3-4]
(citing McCutcheon v. Fed. Election Comm'n, 134 S. Ct. 1434 (2014); U.S. v. O'Brien, 391 U.S.
367 (1968)). Plaintiff further argues that his Complaint is more broadly based on the idea that
the Town "was attempting to 'fine-tune' the election in which Plaintiff was a candidate," citing
McCutcheon for the proposition that the "First Amendment prohibits ... legislative attempts to
fine-tune the electoral process, no matter how well intentioned." [Response, DE 42 at 31.
To state a § 1983 claim for retaliation in violation of First Amendment rights, a plaintiff
must establish that (1) his speech was constitutionally protected; (2) the defendant's retaliatory
conduct adversely affected the protected speech; and (3) there was a causal relationship between
the adverse conduct and the protected speech. Castle v. Appalachian Technical Coll., 631 F.3d
1194, 1197 (11th Cir. 2011); Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). To
"establish a causal connection, the plaintiff must show that the defendant was subjectively
motivated to take the adverse action because of the protected speech." Castle, 631 F.3d at 1194.
The First Amendment protects the rights of speech, and "affords the broadest protection to ...
political expression," McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346, (1995).
Defendants acknowledge that the Town's failure to respond to Plaintiffs request for
public records in a timely fashion may have prevented Plaintiff from using certain information to
criticize one of his opponents in the election, but argue that Plaintiff was merely prevented from
engaging in additional speech. [Motion, DE 35 at 6]. Under this theory, Defendants assert that
Plaintiff has yet to engage in any arguably protected speech, and the Town has yet to take any
retaliatory action in response. [Id.] Therefore, Plaintiffs allegations do not state a prima facie
7
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 8 of 30
First Amendment retaliation claim where there is (1) no protected speech or act, (2) no
retaliatory conduct which affected the protected speech, and (3) no causal connection between
the two. [1d]
Plaintiff responds that "[s]uch logic turns the entirety of `Prior Restraint' jurisprudence
on its head and cannot be the basis of a dismissal." [Response, DE 42 at 2]. However, "[t]he
term 'prior restraint' is used to describe administrative and judicial orders forbidding certain
communications when issued in advance of the time that such communications are to occur....
Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid
speech activities — are classic examples of prior restraints." Alexander v. United states, 509 U.S.
544, 550 (1993) (emphasis in original). Similarly, "[p]rior restraints have been found where the
government has unbridled discretion to limit access to a particular public forum." Cooper v.
Dillon, 403 F.3d 1208, 1215 (11th Cir. 2005). Here, Plaintiff does not allege that any
administrative or judicial orders prohibiled him from criticizing his opponents in the election.
[Amend. Compl., DE 281. Similarly, the Town's alleged delay in responding to Plaintiff's
request for public records did not limit Plaintiffs access to any particular public forum.
Plaintiff also appears to argue that (1) Plaintiffs campaigning activities constitute
protected speech, (2) the Town's failure to produce requested documents in a timely fashion was
retaliatory conduct, which affected the protected speech, or more specifically, "adversely
affected Plaintiffs ability to criticize his opponent's qualifications and performance record,"
[Response, DE 42 at 5], and (3) there was a causal connection between the two. [Id.] This
argument also fails, however, because Plaintiff does not allege any facts to suggest that the
Town's failure to produce the requested documents in a timely fashion would deter a person of
ordinary firmness from criticizing his opponent's qualifications and performance record, as
8
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 9 of 30
required to establish a First Amendment retaliation claim. See Bennett v. Hendrix, 423 F.3d
1247, 1254 (11th Cir. 2005) (stating that a Section 1983 retaliation "plaintiff suffers adverse
action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary
firmness from the exercise of First Amendment rights"). Plaintiff does not even allege that the
Town's delay deterred Plaintiff from criticizing his opponent's qualifications and performance
record. In addition, Plaintiff fails to identify what specific piece of information was withheld or
how it prevented him from engaging in speech, despite the undisputed fact that the Town fully
responded to the public records request the day after the election and Plaintiff is now in
possession of those records. [Amend. Compl, DE 28 at $ 961. Instead, Plaintiff merely
speculates that he would have engaged in some unspecified additional protected speech had the
Town responded earlier. Such a conclusory argument is insufficient under the federal pleading
standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Moreover, Plaintiff fails to cite, and the Court is unaware of, any authority indicating that
a local government's delay in responding to a public records request violates the First
Amendment. As Defendants note, most of the cases Plaintiff cites pertain to government
legislation prohibiting certain forms of speech. [Response, DE 42 at 3-4] (citing, e.g.,
McCutcheon v. FEC, 134 S. Ct. 1434 (U.S. 2014) (holding campaign finance law that limited the
amount of money that could be donated to political candidates violated the First Amendment);
U.S. v. O'Brien, 391 U.S. 367, 377 (1968) (finding law prohibiting the knowing destruction of
draft cards unconstitutional under the First Amendment). Unlike these cases, Plaintiff does not
allege in Count I that the Town passed any legislation limiting his proposed speech.
Accordingly, Defendants' motion to dismiss Count I is granted.
Count II: Facially Unconstitutional Content -Based Enforcement (Temporary Signs)
6
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 10 of 30
In Count II, Plaintiff alleges that the Town violated Plaintiff's First Amendment rights by
enforcing an unconstitutional "content -based and speaker -based" sign ordinance to confiscate
Plaintiffs political signs. [Amend. Compl., DE 28 at 1133-135]. Specifically, Plaintiff alleges
that (1) "Town Code Sec. 66-446, 447, and 448 are all impermissible content -based restrictions"
[Id. at ¶ 1331; (2) "Town Code Sec. 66-1 is a content -based and speaker -based restriction which
harmed Plaintiff because his signs would remain unregulated and unmolested if the Town
considered Plaintiffs campaign a non-profit civic association and Plaintiffs political signage in
the public interest and for a public purpose" [Id. at ¶ 134]; and (3) "Section 66-446(5) or the
entire panoply of sign ordinances unconstitutionally burdened, chilled, or stopped Plaintiffs use
of campaign signs to promote his political speech and candidacy" [Id. at ¶ 1351. Defendants
argue that this claim should be dismissed because Plaintiff has failed to comply with the
requirements of Rule 8(a)l and because the sign ordinance is constitutional.
The Town Code broadly defines "sign," but specifically excludes, "[s]igns placed or
erected by governmental agencies or nonprofit civic associations for a public purpose in the
public interest." Gulf Stream, Fla. Code § 66-1. The Town's sign ordinance prohibits all signs
within the Town, subject to five exceptions: (1) governmental signs "required by law" or
"necessary and incidental to the performance of governmental activities and responsibilities[;]"
(2) signs designating and naming clubs; (3) owners of private property are entitled to one real
estate sign and one sign identifying contractors and/or subcontractors and their construction
and/or renovation activities on the particular property being sold, built, or renovated; (4) owners
of private property are entitled to one sign identifying name/ownership, driveways, and street
Seeing as Defendants appear to have "notice of what the claim is and the grounds upon which it
rests," Twombly, 550 U.S. at 570, and because Count II can be decided on its Merits, the Court
declines to entertain this argument.
10
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 11 of 30
numbers; and (5) political signs may be located on property where the property owner has given
permission within thirty days of the election to which they relate. Gulf Stream, Fla. Code § 66-
446(a). Political signs may not be placed "anywhere on public property or rights-of-way." Gulf
Stream, Fla. Code § 66-446(a)(5)(d). The only signs permitted in rights-of-way are (1)
governmental signs "required by law" or "necessary and incidental to the performance of
governmental activities and responsibilities," and (2) signs designating clubs and identifying club
property. Gulf Stream, Fla. Code § 66-446(a)(1), (2). In addition, political signs are limited to
"a maximum of four square feet in area." Gulf Stream, Fla. Code § 66-446(5)(x). Gulf Stream,
Fla. Code § 66-447 relates solely to the specifications for real estate signs, and § 66-448 requires
that all signs, except for real estate signs, "be reviewed and approved by the architectural review
and planning board prior to the placement of such signs." Gulf Stream, Fla. Code § 66-448.
1. Standing
Although Defendants have not raised the issue of standing, "federal courts are under an
independent obligation to examine their own jurisdiction, and standing is perhaps the most
important of [the jurisdictional] doctrines." United States v. Hays, 515 U.S. 737, 742 (1995)
(internal quotations and citations omitted). "Standing is a doctrine that stems directly from
Article III's case or controversy requirement, and thus it implicates our subject matter
jurisdiction." KH Outdoor, L.L.C. v. Fulton Cnty., Ga., No. 13-14663, 2014 WL 4851669, at *2
(I Ith Cir. Oct. 1, 2014) (internal quotations and citations omitted). "A federal court is obligated
to inquire into subject matter jurisdiction on its own motion whenever it may be lacking." Id.
(citing Fitzgerald v. Seaboard Sys. R. R., 760 F.2d 1249 (11th Cir. 1985)). Thus, the Court
cannot proceed to the merits of the constitutionality of the sign ordinance until it is satisfied that
it has subject matter jurisdiction to issue a judgment in favor of Plaintiff. The party invoking
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 12 of 30
federal jurisdiction bears the burden of proving he has standing. Bischoff v. Osceola Cnty., Fla.,
222 F.3d 874, 878 (11th Cir. 2000).
To establish standing, a plaintiff must show "an injury in fact, meaning an injury that is
concrete and particularized, and actual or imminent, (2) a causal connection between the injury
and the causal conduct, and (3) a likelihood that the injury will be redressed by a favorable
decision." Granite State Outdoor Adver., Inc. v. City of Clearwater, Fla., 351 F.3d 1112, 1116
(11th Cir. 2003) (citing Bennett v. Spear, 520 U.S. 154, 162 (1997)). In addition, "a party
generally may assert only his or her own rights and cannot raise the claims of third parties not
before the court." /d Elements of standing are not merely "pleading requirements[,] but rather
an indispensable part of the plaintiffs case, [and] each element must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
Here, plaintiffs injury is the suppression of his speech through the removal of his
political signs, at least some of which were allegedly removed because they violated the Town's
sign ordinance. However, "[f]or an injury to be redressable, it must be likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision," and "a District
Court must always assure itself that the plaintiff is at least likely to obtain redress before reaching
the merits." KH Outdoor, 2014 WL 4851669 at *3. Under this standard, Plaintiff clearly does
not have standing to allege a constitutional violation under § 66-447, which outlines the
requirements for real estate signs, because Plaintiffs alleged injury arises from the treatment of
his political signs. Plaintiff was not injured by any Code relating to real estate signs, and thus, a
12
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 13 of 30
favorable decision on the constitutionality of a Code section regulating real estate signs will not
redress Plaintiffs injury.
Plaintiff also does not appear to have standing to allege a constitutional violation broadly
under § 66-446, which prohibits all signs with five exceptions. Notably, political signs constitute
one of the five exceptions to the Town's general ban on signs. See Gulf Stream, Fla. Code § 66-
446(a)(5). Indeed, unlike most other types of signs, political signs may be located on property
where the property owner has given permission within thirty days of the election to which they
relate. Gulf Stream, Fla. Code §§66-446(a). The only substantial limitations on the placement
of political signs are (1) the provision prohibiting them "anywhere on public property or rights -of
way," § 66-446(a)(5)(d), and (2) the provision limiting political signs to "a maximum of four
square feet in area," § 66-446(a)(5)(a).
Accordingly, Plaintiff only has standing to challenge the constitutionality of (1) § 66-
446(a)(5)(d), which prohibits political signs from being placed on public property or rights of
way; (2) § 66-446(a)(5)(a), which limits political signs to "maximum of four square feet in
area"2; (3) § 66-448, which requires all signs except for real estate signs to be reviewed and
approved by the architectural review and planning board prior to the placement of such signs;
and (4) § 66-1, which broadly defines the term "sign," but specifically excludes signs placed by
governmental agencies or non-profit civic associations for a public purpose in the public interest.
2. Constitutionality
Plaintiff argues that §§ 66-446(a)(5)(d) and 66-448 are unconstitutional "content -based
restrictions," and that § 66-1 is an unconstitutional "content -based and speaker -based restriction"
[Amend. Compl., DE 28 at 161, because those sections distinguish between political signs, real
z Gulf Stream, Fla. Code § 66-446(a)(5)(a) is discussed in greater depth in Count IX.
13
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 14 of 30
estate signs, non-profit civic association, and other signs in deciding whether or not a particular
sign is permissible. [Response, DE 42 at 71. Plaintiff also argues that those sections of the Town
Code "unconstitutionally burdened, chilled, or stopped Plaintiff's use of campaign signs to
promote his political speech and candidacy." [Amend. Compl., DE 28 at ¶ 135]. Specifically,
Plaintiff alleges that "[o]n February 17, 2014, [a Town sergeant] created an incident report
noting that Plaintiffs signs were in violation of the Town's code because they were political
signs placed in the right of way." [Amend. Compl., DE 28 at $ 38]. He also alleges that "[o]n
February 21, 2014 [Town Manager] Thrasher issued Plaintiff a charging document from the
Town.... which stated that Plaintiff was in violation of Town code section 66-446(a)(5)(d)."
[Amend. Compl., DE 28 at ¶ 50]. According to Plaintiff, Thrasher gave him 12 hours to remove
the signs placed on public property and rights-of-way, and informed Plaintiff that if he did not
remove the signs, the Town would. [Id. at ¶ 51-52]. In sum, Plaintiff essentially argues that the
Town's sign code is a facially unconstitutional content -based restriction on speech because it
exempts from its regulations some categories of signs based on their content, but not others.3
3 Plaintiff also alleges that § 66-1 is an unconstitutional "speaker -based restriction." [Amend.
Compl., DE 28 at 1134]. Although Plaintiff does not elaborate on what he means by this, it
appears he may be alleging that excluding signs placed by "governmental agencies or non-profit
civic associations for a public purpose in the public interest" from the general definition of
"signs" constitutes viewpoint discrimination. See Sorrell v. IMS Health Inc., 131 S. Ct. 2653,
2663 (2011) (construing statute targeting particular speakers for disfavored treatment as
viewpoint discrimination). Viewpoint discrimination, however, is discrimination based on "the
speaker's specific motivating ideology, opinion, or perspective." Rosenberger v. Rector &
Visitors of Univ. of Virginia, 515 U.S. 819, 820 (1995). Given that § 66-1 does not exclude signs
placed by governmental agencies or non-profit civic associations of a particular ideology,
opinion, or perspective from its definition, but rather excludes signs placed by all governmental
agencies or non-profit civic associations for a public purpose in the public interest, § 66-1 does
not discriminate based on viewpoint.
14
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 15 of 30
In response, Defendants argue that under Rappa v. New Castle Cray., 18 F.3d 1043 (3d
Cir. 1994), "the First Amendment permits the specific type of differential treatment between
limited categories reflected in the Town's ordinance." In Rappa, the Third Circuit held that
"when there is a significant relationship between the content of particular speech and a specific
location, the state can exempt speech having that content from a general ban so long as the
exemption is substantially related to serving an interest that is at least as important as that served
by the ban." Rappa, 18 F.3d at * 1066.
However, the Eleventh Circuit has explicitly declined to follow the approach set forth in
Rappa,4 and instead follows the DimmitlMetromedia-plurality approach, which is consistent with
the prevailing approach among other Circuits. Solantic, LLC v. City of Neptune Beach, 410 F.3d
1250, 1262 (11th Cir. 2005). In Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir. 1993),
the Eleventh Circuit struck down an ordinance that required property owners to obtain permits
before erecting or altering most signs, but exempted certain types of signs, including government
flags. The Eleventh Circuit held that the ordinance was a content -based restriction because the
flag exemption applied only to government flags, and, applying strict scrutiny, found that the
4 As the Eleventh Circuit explained in Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250,
1262 (11th Cir. 2005):
Only the Third Circuit has taken a different approach. In Rappa v. New Castle
Cnry., 18 F.3d 1043, 1056-61 (3d Cir. 1994), the court addressed an ordinance
generally prohibiting placement of signs within a certain distance of a highway,
but exempting designated types of signs from this restriction. Drawing on Justice
Brennan's concurrence in Metromedia, the [Rappa] court adopted a "context -
sensitive" test for evaluating the constitutionality of content -based exemptions
from sign regulations. Id. at 1064. The test provided that "when there is a
significant relationship between the content of particular speech and a specific
location, the state can exempt speech having that content from a general ban so
long as the exemption is substantially related to serving an interest that is at least
as important as that served by the ban." Id. at 1064. We have found no cases
applying the Rappa approach, and we are uncertain how it would work in
practice. At all events, we are guided by our own precedent in Dimmitt.
Solantic, 410 F.3d at 1262.
15
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 16 of 30
City's asserted interests in aesthetics and traffic safety were not sufficiently compelling to justify
such a content -based regulation of non-commercial speech. Specifically, the Eleventh Circuit
stated that the City's asserted interest in aesthetics and traffic safety were not "served by the
distinction between government and other types of flags; therefore, the regulation is not
'narrowly drawn' to achieve its asserted end. As a practical matter, only the most extraordinary
circumstances will justify regulation of protected expression based upon its content." Dimmiti,
985 F.2d at 1570 (internal citations and quotations omitted).
In Solanlic, the Eleventh Circuit similarly struck down a sign ordinance that exempted
several types of signs, including government and religious flags. The Eleventh Circuit found that
the ordinance was content -based "because some types of signs are extensively regulated while
others are exempt from regulation based on the nature of the messages they seek to convey."
Solantic, 410 F.3d at 1266. Applying strict scrutiny, the Eleventh Circuit again found that the
City's interests in aesthetics and traffic safety were not sufficiently compelling to justify such a
content -based regulation of non-commercial speech.
Like the sign ordinances at issue in Dimmitt and Solantic, the Town's sign ordinance
generally prohibits signs, but exempts several types of signs based on content. Specifically,
unlike political signs, (1) signs placed or erected by governmental agencies or nonprofit civic
associations for a public purpose in the public interest, and (2) governmental signs "required by
law" or "necessary and incidental to the performance of governmental activities and
responsibilities" are allowed on public property and in rights-of-way. Gulf Stream, Fla. Code
§§66-1; 66-446(a)(1). Also unlike political signs, signs designating clubs and identifying club
property are allowed in rights-of-way. Gulf Stream, Fla. Code § 66-446(a)(2). Finally, under §
16
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 17 of 30
66-448, all signs except for real estate signs must be reviewed and approved by the architectural
review and planning board prior to the placement of such signs.
The Town justifies its sign ordinance on the basis of traffic safety, aesthetics, and other
Town interests as follows:
The purpose of [the sign ordinance] is to implement the town comprehensive
development plan adopted in 1990 in conformance with the Local Government
Comprehensive Planning Act of 1985; to specifically divide the town into districts
in accordance with the comprehensive development plan; to lessen congestion in
the streets; to secure safety from fire, panic, and other dangers; to provide
adequate light and air; to prevent the overcrowding of land; to avoid undue
concentration of population; to facilitate the adequate provision of transportation,
water, sewerage, schools, parks and other public requirements; and to generally
promote the health, safety and welfare of present and future residents.
Gulf Stream, Fla. Code § 66.3(a). However, the Town does not even attempt to distinguish its
ordinance, which appears to differentiate signs based on content and therefore must be
scrutinized under strict scrutiny5, from those content -based sign ordinances found
unconstitutional by the Eleventh Circuit in Dimmitr and Solantic. Instead, the Town argues that
its ordinance is constitutional under the "context -sensitive" test for evaluating the
constitutionality of content -based exemptions from sign regulations set forth in Rappa. [Reply,
DE 45 at 3-4]. Because the Eleventh Circuit does not follow Rappa, Defendant's motion to
dismiss Count tI is denied 6.
Count IV: Violation of First Amendment (Signage on Plaintiffs Truck)
5 If the ordinance is a content -neutral time, place, and manner restriction, it is
subject to intermediate scrutiny - that is, it must not restrict speech substantially
more than necessary to further a legitimate government interest, and it must leave
open adequate alternative channels of communication. However, if the ordinance
is content based, it is subject to strict scrutiny, meaning that it is constitutional
only if it constitutes the least restrictive means of advancing a compelling
government interest.
Solantic, 410 F.3d at 1258.
6 As discussed above, Plaintiff only has standing to challenge §§ 66-446(a)(5)(d), 66-
446(a)(5)(a), 66-448, and 66-1.
17
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 18 of 30
In Count IV, Plaintiff claims that his "First Amendment rights were violated when the
Town threatened Plaintiff with official adverse action if Plaintiff did not remove the banners on
the side of his truck." [Amend. Compl., DE 28 at $ 155]. To state a First Amendment retaliation
claim, a plaintiff must establish that (1) his speech was constitutionally protected; (2) the
defendant's retaliatory conduct adversely affected the protected speech; and (3) there was a
causal relationship between the adverse conduct and the protected speech. Castle, 631 F.3d at
1197; Bennett, 423 F.3d at 1250.
Defendants argue that "Count IV fails because [Plaintiff] affirmatively alleges that the
Town's alleged conduct did not adversely affect his purported speech. He alleges that the truck
remained in the parking lot during the election and remains there today with new signage."
[Motion, DE 35 at 91 (citing [Amend. Compl., DE 28 at ¶¶ 82, 155, 157]). In addition, Plaintiff
"plans to use his truck at Town Hall and over public right-of-ways to express speech in the
future." [ld. at ¶ 1581. Plaintiff counters that the fact that Defendants' conduct did not deter
Plaintiff from removing the banners on the side of his truck is irrelevant. [Response, DE 42 at
10]. Plaintiff contends that he is not a person of ordinary firmness, and that such a person would
have been deterred by Defendants' conduct. [Id.]
Plaintiff is correct that the Eleventh Circuit applies an objective standard in determining
whether a defendant's retaliatory conduct adversely affected the protected speech. Bennett v.
Hendrix, 423 F.3d 1247, 1252 (11th Cir. 2005) ("[I]t would be unjust to allow a defendant to
escape liability for a First Amendment violation merely because an unusually determined
plaintiff persists in his protected activity.... There is no reason to reward government officials
for picking on unusually hardy speakers.") (internal quotations and citation omitted). In this
case, the Town allegedly gave Plaintiff a "charging document stating that his banner clad truck
18
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 19 of 30
was in violation of the Town code because the truck carried signs on town property and in the
right-of-way." [Amend. Compl., DE 28 at ¶ 57]. Gulf Stream, Fla. Code § 1.15(a) states:
[t]he violation of, or failure to comply with any provision of this Code shall
constitute an offense against the town, and where no specific penalty is provided
therefor, shall subject the offender, upon conviction, to a fine of not to exceed
$500.00, or imprisonment for a period of not to exceed 60 days, or by both such
fine and imprisonment.
Gulf Stream, Fla. Code § 1.15(a). In addition, the Town treats each day that a violation
continues as a separate and distinct violation of the law. See Gulf Stream, Fla. Code § 1.15(a).
Given such penalties, Plaintiff argues, a person of ordinary firmness would be deterred from
placing banners on the side of his truck, and driving said truck onto public property and in rights-
of-way. [Response, DE 42 at 11-12].
Without citing any legal authority, Defendants counter that Plaintiff was not actually
fined or imprisoned, and that "mere threats of conduct do not rise to the level of a constitutional
violation." [Motion, DE 35 at 9]. However, as the Supreme Court has explained, "[t]he threat of
sanctions may deter [the] exercise [of First Amendment freedoms] almost as potently as the
actual application of sanctions. Because First Amendment freedoms need breathing space to
survive, government may regulate in the area only with narrow specificity." Nat'l Ass'n for
Advancement of Colored People v. Button, 371 U.S. 415, 433 (1963) (internal citations omitted).
Plaintiffs truck signage claim is based on the same sections of the Town Code as discussed in
Count II.7 Thus, for the reasons stated above in Count Il, Defendant's motion to dismiss Count
IV is denied.
Count IX: Violation of Free Speech (Election Day)
Defendants again rely entirely upon Rappa for their assertion that the sign ordinance is
constitutional as related to Count IV. [Reply, DE 45 at 51.
19
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 20 of 30
In Count IX, Plaintiff alleges that "[t]he Town ordinance 66-446(5), limiting political
signage to four square [feet], was the content -based restriction cited by Chief Ward as the basis
for removing Plaintiffs signs and is unconstitutional under the First Amendment." [Amend.
Comp., DE 28 ut $ 1961. "During Election Day, Plaintiff witnessed several non -Town vehicles
with commercial signage more than 4 square feet either parking or driving around the election
polls united or otherwise subject to executive action." [ld. at ¶ 1961. Plaintiff also alleges the
Town's "refus[a]l to return Plaintiffs banners was an unconstitutional ad hoc time, place, and
manner restriction which had the effect of allowing Plaintiff to utilize certain banners which the
Town allowed Plaintiff to display while preventing Plaintiff from displaying the content withheld
by the Town." [Amend. Comp., DE 28 at ¶ 2001. In sum, Plaintiff argues "[w]hile the Town's
initial seizure was purportedly undertaken pursuant to the content -based restriction of Gulf
Stream, Fla. Code § 66.446(a)(5)(a)[,J ... Plaintiff has alleged the Town: (1) forcibly seized
several of Plaintiffs banners; (2) allowed Plaintiff to display some of his banners; and (3)
refused to return several of Plaintiffs banners despite assurances that the banners would be
rotated rather than displayed in an an•ay. All of these ad hoc restrictions were based on the
identity of the speaker and the content of the banners." [Response, DE 42 at 121.
Some of Plaintiffs allegations appear to focus on the fact that the Town only confiscated
some of his offending signs on election day, rather than all of them. However, Plaintiff has not
cited, nor is the Court aware of, any authority to support Plaintiffs contention that the Town's
alleged under -enforcement of its sign ordinance as to Plaintiff constitutes "an unconstitutional ad
hoc time, place, and manner restriction." [Amend. Comp., DE 28 at ¶ 2001. In addition, Plaintiff
does not allege that his political signs exceeding four square feet in area were removed while
others' political signs exceeding four square feet were not. (See Campbell v. Rainbow City, Ala.,
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 21 of 30
434 F.3d 1306, 1314 (11th Cir. 2006) (to prevail on a selective enforcement claim, a plaintiff
must show that he (1) was "treated differently from other similarly situated individuals, and (2)
that Defendant unequally applied a facially neutral ordinance for the purpose of discriminating
against Plaintiffs")). Instead, Plaintiff alleges that his political signs exceeding four square feet
were removed, whereas others' commercial signs exceeding four square feet were not removed.
[Amend. Comp., DE 28 at ¶ 1961.
Nevertheless, to the extent Plaintiff alleges that § 66.446(a)(5)(a) is an unconstitutional
content -based restriction on speech because it limits political signs, and no other signs, to a
maximum of four square feet in area, Defendant's motion to dismiss Count IX is denied for the
reasons set forth in Count II.
Qualified Immunity
Counts VI, VII, VIII, and X allege charges against Town Manager Thrasher and Chief of
Police Ward, both of whom are entitled to qualified immunity. "Qualified immunity balances
two important interests — the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). The
doctrine "operates to ensure that before they are subjected to suit, officers are on notice that their
conduct is unlawful." Hope v. Pelzer, 536 U.S. 730, 739 (2002). Thus, the unlawfulness must
be apparent in light of pre-existing law. /d. However, "officials can be on notice that their
conduct violates established law even in novel factual situations." Id
Qualified immunity shields government officials performing discretionary functions
"from money damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was `clearly established' at the time of the
21
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 22 of 30
challenged conduct." Ashcroft v. al -Kidd, 131 S. Ct. 2074, 2080 (2011) (emphasis added). "If
the official was acting within the scope of his discretionary authority ... the burden then shifts to
the plaintiff to show that the grant of qualified immunity is inappropriate." McCullough v.
Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009).
District courts "have discretion to decide which of the two prongs of [the] qualified -
immunity analysis to tackle first." Ashcroft, 131 S. Ct. at 2080. Addressing the second prong,
"clearly established" means "it would be clear to a reasonable [official] that his conduct was
unlawful in the situation he confronted." Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280,
1285 (11th Cir. 2009). "The inquiry whether a constitutional violation is clearly established `is
undertaken in light of the specific context of the case, not as a broad general proposition." Leslie
v. Hancock Cmy. Bd. ofEduc., 720 F.3d 1338, 1345 (11th Cir. 2013) (citing Terrell v. Smith, 668
F.3d 1244, 1250 (11th Cir. 2012)). "The relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable [state official] that his
conduct was unlawful in the situation he confronted. To answer this question, we look to law as
decided by the Supreme Court, the Eleventh Circuit, or the Supreme Court of [Florida]." Loftus
v. Clark -Moore, 690 F.3d 1200, 1204 (11th Cir. 2012) (emphasis in original) (citing Vinyard v.
Wilson, 311 F.3d 1340, 1350 (1 lth Cir.2002); Barnes v. Zaccari, 669 F.3d 1295, 1307 (11th Cir.
2012)).
Qualified immunity "gives ample room for mistaken judgments by protecting all but the
plainly incompetent and those who knowingly violate the law. This accommodation for
reasonable error exists because officials should not err always on the side of caution because
they fear being sued." Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotations and
22
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 23 of 30
citation omitted). "Qualified immunity is the rule, not the exception." Roue v. Schreiber, 139
F.3d 1381, 1385 (11th Cir. 1998).
1, Town Manager Thrasher
In Counts VI and VIII, Plaintiff alleges that Town Manager Thrasher violated Plaintiffs
First Amendment and equal protection rights when he issued "an order to remove only campaign
signs in the right-of-way, as opposed to all signs in the right-of-way, and to do so with a special
focus on the Place An Soleil district, an enclave politically favorable to Plaintiffs candidacy,"
during the March "sign sweep." [Response, DE 42 at 141. Thus, both federal claims against
Thrasher are based on his enforcement of Gulf Stream, Fla. Code § 66446(a)(5)(d), which
prohibits political signs from being placed in rights-of-way. The parties do not dispute that, as
Town Manager, such enforcement is well within the scope of Thrasher's discretionary authority.
Therefore, the burden is on Plaintiff to show that Thrasher is not entitled to qualified.
McCullough, 559 F.3d at 1205.
A. Count VIII: Equal Protection
Turning first to Plaintiff s equal protection claim, Plaintiff alleges that Thrasher "violated
Plaintiffs right to Equal Protection with malice, gross negligence, or purpose when he ordered
that only political signs be removed during the March `sign sweep,"' because Thrasher "knew
that an order removing only political campaign signs would have a disparate impact on
Plaintiffs speech because Plaintiff had more signs on display (and in reserve) than the
opposition." [Amend. Compl., DE 28 at $$ 189-190].
While most equal protection cases involve plaintiffs alleging they were discriminated
against because they belong to a protected class, "a less-developed strand of equal protection
jurisprudence," known as the "class of one" claim, also exists. Grim Indus., Inc. v. Irvin, 496
23
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 24 of 30
F.3d 1189, 1202 (1 lth Cir. 2007) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000)). A
"class of one" claim involves a plaintiff who "alleges [(1)] that he has been intentionally treated
differently from others similarly situated and [(2)] that there is no rational basis for the difference
in treatment." Id. (citing Olech, 528 U.S. at 564). "In a case involving a qualified immunity
defense, a plaintiff who fails to allege both elements of a 'class of one' equal protection claim
has not met its burden of showing that the defendant's conduct violated a right embodied in the
Constitution." Id.
In this case, Plaintiff does not appear to base his argument on the idea that he was treated
differently from other similarly situated candidates. Instead, Plaintiff argues "Thrasher knew the
Plaintiff had more signs than his opposition — four of which were Mr. Thrasher's superiors — and
directed the removal of political signs because he knew that it would cause a disparate impact on
the Plaintiff's speech, thereby helping his superiors by 'leveling the playing field."' [Response,
DE 42 at 16]. Because Thrasher ordered the removal of all political signs, Plaintiff was not
treated differently from others similarly situated — i.e. those who placed similar political signs in
rights-of-way in the Place Au Soleil district. Moreover, given that Plaintiff had significantly
more signs on display than all other candidates, it is unclear that there were any similarly situated
individuals to begin with. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1207 (11th Cir. 2007)
("To ... avoid constitutionalizing every state regulatory dispute, we are obliged to apply the
'similarly situated' requirement with rigor. Different treatment of dissimilarly situated persons
does not violate the equal protection clause. Because [Plaintiffs] own complaint shows that it
was not similarly situated to American Proteins ... f Plaintiff) fails to state a claim for a 'class of
one' equal protection violation.") (internal quotations and citations omitted)). Therefore,
because Plaintiff has failed to plead facts showing that Thrasher violated Plaintiffs right to equal
24
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 25 of 30
protection, Thrasher is entitled to qualified immunity on Count VIII. Ashcroft v. al -Kidd, 131 S.
Ct. 2074, 2080 (2011).
B. Count VI: First Amendment
In Count VI, Plaintiff alleges that "Town Manager Thrasher violated Plaintiff's First
Amendment rights with malice, gross negligence, or purpose when he ordered that only political
signs be removed during the March `sign sweep."' [Amend. Compl., DE 28 at ¶ 171]. Plaintiff
further alleges that Thrasher knew or should have known that Gulf Stream, Fla. Code § 66-
446(a)(5)(d), which prohibits political signs from being placed on public property or in rights-of-
way, was unconstitutional. [/d. at $$ 173-1751. It is unclear which particular right under the
First Amendment, Plaintiff argues Thrasher violated. Nevertheless, Plaintiff argues that
Thrasher violated Plaintiffs First Amendment rights by enforcing an unconstitutional sign
ordinance.
Defendants argue that Thrasher cannot have violated a clearly established constitutional
right where he was "acting pursuant to a valid municipal ordinance." [Reply, DE 45 at 7].
Defendants further argue that "a reasonable municipal manager would not have known that the
enforcement of the Town's sign ordinance, which has never been found to be unconstitutional,
would have violated [Plaintiffs constitutional] rights." [Motion, DE 35 at 13]. As Town
Manager, Thrasher is "obligated to enforce the Town's laws, including its sign ordinance." [Id.].
The Court agrees with Defendants. In Grossman v. City of Portland, 33 F.3d 1200 (9th
Cir. 1994), the Ninth Circuit held that a city ordinance prohibiting demonstrations in public parks
without a permit violated the First Amendment because the ordinance was not narrowly tailored
to the city's interests in maintaining safety and convenience of park users, but nonetheless found
W
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 26 of 30
that the officer who arrested a protester in violation of the ordinance was entitled to qualified
immunity. In doing so, the Court reasoned:
Unlike many such [qualified immunity] cases, here the allegedly unconstitutional
action undertaken by the individual defendant consists solely of the enforcement
of an ordinance which was duly enacted by the city council.... [A]n officer who
acts in reliance on a duly -enacted statute or ordinance is ordinarily entitled to
qualified immunity. [However], as historical events such as the Holocaust and the
My Lai massacre demonstrate, individuals cannot always be held immune for the
results of their official conduct simply because they were enforcing policies or
orders promulgated by those with superior authority. Where a statute authorizes
official conduct which is patently violative of fundamental constitutional
principles, an officer who enforces that statute is not entitled to qualified
immunity. Similarly, an officer who unlawfully enforces an ordinance in a
particularly egregious manner, or in a manner which a reasonable officer would
recognize exceeds the bounds of the ordinance, will not be entitled to immunity
even if there is no clear case law declaring the ordinance or the officer's particular
conduct unconstitutional. In the end, however, an officer who reasonably relies
on the legislature's determination that a statute is constitutional should be
shielded from personal liability.
Grossman v. City ojPortland, 33 F.3d 1200, 1209-10 (9th Cir. 1994) (internal citations and
quotations omitted). See also Cooper v. Dillon, 403 F.3d 1208, 1220 (11th Cir. 2005) (citing
Grossman with approval).
Applying these principles, the Court concludes that it would not be clear to a reasonable
official that enforcing Gulf Stream, Fla. Code § 66-446(a)(5)(d) against Plaintiff was unlawful.
Corey Airport Servs., Inc., 587 F.3d at 1285. Plaintiff unquestionably violated the terms of § 66-
446(a)(5)(d) by placing his political signs in rights-of-way. The sign ordinance had been duly
promulgated by the city council and had never previously been found unconstitutional. Neither
has Plaintiff cited to any authority indicating it would be clear to a reasonable town manager that
Thrasher's sign sweep was unlawful in this context. Given that city councils have the authority
under the First Amendment to adopt reasonable time, place, and manner restrictions regulating
the placement of political signs, so long as they are narrowly tailored to serve a compelling state
3]
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 27 of 30
interest, § 66446(a)(5)(d) was not so obviously unconstitutional as to require a reasonable
officer to refuse to enforce it. Burson v. Freeman, 504 U.S. 191, 112 (1992). To hold Thrasher
personally liable for acting well within the scope of his discretionary authority in this context
would induce precisely the harm qualified immunity is designed to prevent. Accordingly,
Defendant Thrasher is entitled to qualified immunity, and Defendants' motion to dismiss Counts
VI and VIII with prejudice is granted.
2. Chief Ward
In Count X, Plaintiff alleges that Chief Ward should be subject to personal liability for
confiscating some of Plaintiffs campaign signs on election day, pursuant to § 66.446(a)(5)(a),
which limits political signs to four square feet in area. [Amend. Compl., DE 28 at 1208].
Plaintiff further alleges that Ward refused to return Plaintiffs confiscated signs prior to the
closing of the polls in violation of Plaintiffs right to free speech under the First Amendment.
[Id. at 212]. Plaintiff does not allege that Ward confiscated all of his signs at Town Hall on
election day, but rather only some. Plaintiff does not refute that his political signs exceeded four
square feet in area. In addition, as explained in greater depth in Count IX, Plaintiff does not
allege a selective enforcement claim. Instead, Plaintiff's claim again appears to be based on the
official's enforcement of an allegedly unconstitutional sign ordinance.
Nevertheless, it does not appear that it would be clear to a reasonable official that
enforcing Gulf Stream, Fla. Code § 66-446(a)(5)(a) against Plaintiff was unlawful. Corey
Airport Servs., Inc., 587 F.3d at 1285. Again, Plaintiff unquestionably violated the terms of §
66-446(a)(5)(a) because his political signs exceeded four square feet in area. And again, because
city councils have the authority under the First Amendment to adopt reasonable time, place, and
manner restrictions regulating political signs, so long as they are narrowly tailored to serve a
27
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 28 of 30
compelling state interest, § 66-446(a)(5)(a) was not so obviously unconstitutional as to require a
reasonable officer to refuse to enforce it. Burson v. Freeman, 504 U.S. 191, 112 (1992).
Plaintiff has failed to meet his burden of identifying any authority indicating it would be clear to
a reasonable town police chief that confiscating some of Plaintiffs campaign signs in violation
of § 66.446(a)(5)(a) was unlawful in this context. Accordingly, Defendant Ward is entitled to
qualified immunity, and Defendants' motion to dismiss Count X with prejudice is granted.
Florida Constitutional Claims
Counts 11I, V, and VII allege violations under the Florida Constitution that are identical to
those brought under the United States Constitution. Defendants argue that these Counts are
subject to dismissal because there is no cognizable claim for money damages under the Florida
Constitution. [Motion, DE 35 at 141. Plaintiff counters that he also "seeks congruent relief,
including attorney's fees, permanent injunctions, and any other relief the Court deems proper."
[Response, DE 42 at 14] (citing Abad v. City of Marathon, 472 F. Supp. 2d 1374, 1382 (S.D. Fla.
2007), for the proposition that "counts raised under the Florida Constitution should not be
dismissed if the counts seek other relief in addition to monetary damages."). Defendants
subsequently concede that the state law claims should not be entirely dismissed on the basis of
damages sought, but rather "should be dismissed to the extent they seek [monetary] damages."
[Reply, DE 45 at 8]. The Court agrees. See Depaola v. Town of Davie, 872 So. 2d 377, 380
(Fla. Dist. Ct. App. 2004) (finding trial court improperly dismissed claim because plaintiff
sought money damages for violation of state constitutional right where he also sought injunctive
relief).
Defendants also argue that Plaintiffs state law claims remain subject to dismissal for the
same reasons as their federal counterparts. Accordingly, like their federal counterparts (Counts
28
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 29 of 30
II and IV), Counts III and V are dismissed except to the extent Plaintiff seeks non -monetary
damages for the enforcement of Gulf Stream, Fla. Code §§ 66-446(a)(5)(a), 66-446(a)(5)(d), 66-
448, and 66-1, in violation of Plaintiff's rights under the Florida Constitution. Similarly, Count
VII, which alleges Thrasher's sign sweep violated Plaintiffs right to free speech under the
Florida Constitution, like its federal counterpart in Count VI, is dismissed with prejudice because
Thrasher is entitled to qualified immunity.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants' Motion to Dismiss [DE 35] is
GRANTED IN PART AND DENIED IN PART as follows:
1. Defendants' Motion to Dismiss Counts I, VI, VII, VIII, and X is GRANTED. Counts I,
VI, VII, VIII, and X are DISMISSED WITH PREJUDICE;
2. Defendants' Motion to Dismiss Counts II, IV, and IX is DENIED to the extent Plaintiff
alleges Gulf Stream, Fla. Code §§ 66.446(a)(5)(a), 66-446(a)(5)(d), 66-448, and 66-1 are
unconstitutional content -based restrictions on speech;
3. Defendants' Motion to Dismiss Counts III and V is DENIED to the extent Plaintiff seeks
non -monetary damages for the enforcement of Gulf Stream, Fla. Code §§ 66-
446(a)(5)(d), 66448, and 66-1 in violation of his rights under the Florida Constitution;
and
4. The Parties shall submit a joint proposed amended scheduling order by December 4,
2014, based on a trial date during the two-week period commencing April 6, 2015.
29
Case 9:14-cv-80317-DMM Document 49 Entered on FLSD Docket 11/24/2014 Page 30 of 30
SO ORDERED in Chambers at West Palm
2014.
Copies to: Counsel of Record
Z/
of November,
UNITED STATES DISTRICT JUDGE
30