The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HARRY E. CRISWELL, III and
LAURA B. CRISWELL,
Plaintiffs,
v. Case No: 2:19-cv-305-FtM-29MRM
CITY OF NAPLES, Florida,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #33) filed on January 3, 2020. Plaintiff
filed a Response (Doc. #34) on January 10, 2020.
I.
Plaintiffs own property on Fort Charles Drive in Naples,
Florida. Defendant is the City of Naples (defendant or the City)
and is sued for improper use of a City Ordinances in official
action against plaintiffs. For the reasons set forth below, the
motion is denied.
The Second Amended Complaint alleges the following:
Plaintiffs sometimes leave their vessel in the water moored to the
pier behind their house. The City asserts that the vessel
encroaches into the side yard setbacks of the property, in
violation of Naples Code of Ordinances § 58.121(3) (the Ordinance),
which provides that the side yard setback is 20 feet from the side
property lines and riparian lines extended into the waterway. The
City seeks to require plaintiffs to permanently move the vessel
from the home to enforce the Ordinance.
Plaintiffs assert there are numerous instances throughout the
City where other vessels sit in the side yard setbacks, and have
identified 19 such properties in the Second Amended Complaint (Doc.
#31). These 19 properties are alleged to be comparators “in all
relevant respects” and identified as “prima facie identical” in
all relevant respects, specifically whether a vessel is moored or
docked in the side yard setbacks as extended into the waterway.
Plaintiffs alleges that the City only seeks enforcement of the
Ordinance against their vessel without weighing subjective
criteria, including the size of the vessel, the unique orientation
and contours of the property line and riparian lines, whether the
vessel was moored or supported by a boatlift, and the construction
date of the pier or boatlift.
Plaintiffs assert that enforcement of the Ordinance against
them violates the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution and 42 U.S.C. § 1983 because
there are numerous other similarly situated vessels against which
the City does not seek to enforce the Ordinance. Plaintiffs allege
that they are intentionally not being treated equally as other
similar residents of the City. Additionally, Plaintiffs allege
that the enforcement is based on an actual irrational animus
towards plaintiffs. Plaintiffs allege that there can be no
rational basis for this different treatment based on a facially
neutral ordinance. Plaintiffs argue an ongoing controversy
exists, and seek declaratory and injunctive relief.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires
“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. “Factual allegations that are merely consistent
with a defendant’s liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (citations omitted). Thus, the Court engages in a two-
step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
III.
The Equal Protection Clause of the Fourteenth Amendment of
the U.S. Constitution provides that “[n]o State shall make or
enforce any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. “The purpose of the equal protection clause of the
Fourteenth Amendment is to secure every person within the state’s
jurisdiction against intentional and arbitrary discrimination,
whether occasioned by express terms of a statute or by its improper
execution through duly constituted agents.” Sioux City Bridge Co.
v. Dakota Cty., Neb., 260 U.S. 441, 445 (1923) (quoting Sunday
Lake Iron Co. v. Wakefield Tp., 247 U.S. 350, 352 (1918)).
Plaintiffs allege that the City is violating their equal
protection rights under the Fourteenth Amendment by enforcing the
Ordinance through official decision-making channels in an unequal
manner. Plaintiffs also allege a violation of equal protection
pursuant to 42 U.S.C. § 1983. Under Section 1983, “[e]very person
who, under color of any statute, ordinance” of a State “subjects,
or causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured
in an action at law.” 42 U.S.C. § 1983.
Municipalities “can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where, as here, 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.”
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658,
690 (1978). A municipality cannot be held liable “solely because
it employs a tortfeasor”. Id. at 691 (emphasis in original).
“Instead, to impose § 1983 liability on a municipality, a plaintiff
must show: (1) that his constitutional rights were violated; (2)
that the municipality had a custom or policy that constituted
deliberate indifference to that constitutional right; and (3) that
the policy or custom caused the violation.” McDowell v. Brown,
392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). Beginning with the language of
Section 1983 itself, a person may sue for a deprivation of rights
based on a statute or ordinance or custom. A single act is enough
to establish an unconstitutional policy if (1) the municipality
itself is responsible, i.e. it is “officially sanctioned or
ordered”; (2) by a “final policymaking authority”; (2) with
authority under state law; and (4) the challenged action was taken
pursuant to the official policy. Davis v. City of Apopka, 424 F.
Supp. 3d 1161, 1173 (M.D. Fla. 2019) (citing City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988)).
Defendant argues that plaintiffs have not alleged a municipal
policy or custom that has been violated. Plaintiffs respond that
they “are not alleging vicarious liability or liability stemming
from the employee-employer relationship. Rather, they are alleging
a direct cause of action against the Defendant through final
decision makers, i.e. code enforcement officers [ ].” (Doc. #34,
p. 12.) Plaintiffs allege that they were injured by a deliberate
discriminatory decision attributable to the City itself and not an
agent or employee on behalf of the City. “These are official City
actions and not those of the City’s agents or employees.” (Doc.
#31, ¶ 6.) Plaintiffs have plausibly set forth an equal protection
claim against the City.
Defendant also argues that plaintiffs have failed to
adequately state a claim by failing to identify comparators that
are similarly situated in all relevant respects, and have failed
to show a lack of a rational basis to enforce the Ordinance. The
Court disagrees.
Courts recognize an equal protection claim brought by a “class
of one”, “where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). See also Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1202 (11th Cir. 2007); Grider v. City of Auburn, Ala., 618 F.3d
1240, 1263 (11th Cir. 2010). “Class of one equal protection claims
generally require plaintiffs to identify comparators in the
pleading in order to show intentional, discriminatory treatment
different from others similarly situated.” Eisenberg v. City of
Miami Beach, 1 F. Supp. 3d 1327, 1340 (S.D. Fla. 2014). “To
prevail on this traditional type of equal protection claim,
basically a selective enforcement claim, that the City's Ordinance
was applied to them, and not other developments, Plaintiffs must
show (1) that they were treated differently from other similarly
situated individuals, and (2) that Defendant unequally applied a
facially neutral ordinance for the purpose of discriminating
against Plaintiffs.” Campbell v. Rainbow City, Ala., 434 F.3d
1306, 1314 (11th Cir. 2006) (citing Strickland v. Alderman, 74
F.3d 260, 264 (11th Cir. 1996)).
Under the relevant ordinance,
The side yard setback for all piers, including
floating piers, pilings, vessels moored to
piers, boat lifts, and vessels supported on
boat lifts, constructed after September 15,
1999, the effective date of Ordinance No. 99-
8638, is 20 feet from the side property lines
and riparian lines, extended into the
waterway. The setback shall be measured at a
right angle to the extended property line.
Naples Code of Ordinances § 58.121(3). Defendant argues that the
ordinance also requires discretionary consideration of various
factors, including the size of the relevant vessel, the unique
orientation and contours of the relevant property line and riparian
line, whether a vessel is moored to a pier or supported on a
boatlift, whether it was constructed after September 15, 1999,
whether any variance or deviation was granted to a property owner.
The size of the vessel is not a listed factor in the ordinance.
Plaintiffs have specifically identified 19 properties as
comparators in the Second Amended Complaint, asserting they were
“prima facie identical” in all relevant respects. While Plaintiffs
did not detail all the ways they are identical, at this stage of
the proceedings, the allegation of 19 comparators is plausible and
therefore sufficient to state a claim.
With regard to the rational basis to enforce the ordinance,
plaintiffs allege as follows:
29. The City continues to harbor an irrational
animus towards the Criswells as made evident
by the fact that it seeks only to remove the
Criswells’ Vessel despite the existence of
many other purportedly violative vessels.
30. There can be no rational basis for the
difference in treatment and the facially
neutral ordinance is being applied to achieve
a discriminatory purpose against the
Criswells.
31. There can be no rational basis for
enforcing the Ordinance against only the
Criswells’ Vessel but not enforcing it against
many others.
(Doc. #31, p. 5.) This is sufficient to plausibly show an
allegedly unequal application of a facially neutral ordinance for
the purpose of discriminating against Plaintiffs.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #33) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 27th day of
May, 2020.
ON E
JOHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Parties of record