Opinion

Criswell v. City of Naples

Court
District Court, M.D. Florida
Filed
May 27, 2020
Cited by
0 cases
Authority
More cited than 19.7%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.