# Clewiston Commons LLC v. City of Clewiston

> District Court, M.D. Florida · April 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10115893

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10115893

## How later opinions describe it (automated extraction)

- explaining that under both the Florida Constitution and the United States Constitution, “procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

CLEWISTON COMMONS, LLC,

Plaintiff,

v. Case No: 2:18-cv-339-JLB-NPM

CITY OF CLEWISTON, MALI
GARDNER, AL PERRY, TRAVIS
REESE, DEBBIE MCNEIL and
KATHY COMBASS,

Defendants.
/

ORDER
This matter is before the Court on Plaintiff’s Motion for Summary Judgment
(Doc. 227) and Defendants’ Motion for Summary Judgment (Doc. 228). Plaintiff and
Defendants responded to one another’s summary judgment motions. (Docs. 229,
230). Plaintiff and Defendants filed replies in support of their respective motions.
(Docs. 231, 232). After careful review of the record, Plaintiff’s motion is DENIED
and Defendant’s motion is GRANTED in part and DENIED in part.
BACKGROUND
This case involves a zoning dispute over the designation of a mobile home
park in Clewiston, Florida. (Doc. 111 at ¶¶ 1–7). Plaintiff sues the City of
Clewiston (the “City”), the City Commissioner and later mayor, Mali Gardner (an
elected official), and four City employees—Al Perry (the City Manager), Travis
Reese (the Community Development Director), Kathy Combass (the City Clerk),1
and Debbie McNeil, the City’s code enforcement officer. (Doc. 111 at ¶¶ 1–2;
Doc. 228 at ¶ 1). Yasir Khan indicated that he is the “point of contact for the

ownership group,” which consists of himself, Mohammed Yasin Khan, and Floyd
Salkey. (Doc. 228-2 at 7).
In 2006, Plaintiff purchased real property located at 810-381 East Sagamore
Avenue, Clewiston, FL 33440 (the “Property”). (Doc. 227 at 2; Doc. 229 at 1;
Doc. 228-2 at 15). The Property was zoned as RM-1, “Mobile Home and
Recreational Vehicle Park District,” which permitted mobile homes and recreational
vehicles. (Doc. 228-3 at 70, 72; Doc. 227-5 at 155; Doc. 228-6 at 19).

In 2007, the Property was rezoned to a General Commercial District. (Doc.
227-21 at 2; Doc. 228-5 at 4, 10; Doc. 228-6 at 19; Doc. 228-7 at 4). Mobile homes
and recreational vehicles are not specifically listed as a permitted use in a property
zoned General Commercial District. (See Doc. 228-6 at 20–21). Plaintiff claims that
it originally sought a special exception. But the City recommended rezoning the
Property and represented that Plaintiff could continue the mobile home use. For

example, Wendell Johnson, the City’s previous City Manager, told Plaintiff’s
representative that the Property “could continue as nonconforming until such time
that he effected the development request and redeveloped it as commercial.”
(Doc. 227-1 at 16, 64–65). And Tommy Perry, a former member of a team that

1 The only claim against Kathy Combass, the Sunshine Law claim (Count VII) was
previously dismissed by this Court.
engineered for the City, testified that “I think he started out asking for a special
exception, and the City said you should rezone, and encouraged the rezoning.”
(Doc. 227-2 at 14, 42). But at the hearing regarding the zoning change, which took

place on January 22, 2007 (at which Plaintiff’s representative was present), the City
Attorney stated that “the Code specified what uses are permitted in the Commercial
district and Special Exceptions could be allowed if certain conditions are met;
otherwise, other uses would be prohibited.” (Doc. 228-7 at 3). Plaintiff
acknowledges that its purported agreement with Mr. Johnson (wherein Plaintiff
would be perpetually allowed a non-conforming use until it decided to develop
commercial property) was never approved by the City Commission or presented at a

hearing. (Doc. 228-2 at 58–59; Doc. 228-3 at 34–35).
Plaintiff’s plan to redevelop the Property changed when the real estate
market crashed and Plaintiff determined that the redevelopment was no longer
feasible. (Doc. 227 at 4; Doc. 227-3 at 55; Doc. 228 at 4). Thus, Plaintiff continued
to use the Property as a mobile home park after the change of zoning designation.
(Doc. 227 at 4; Doc. 229 at 2).

Plaintiff states that between 2015 and 2016, individual residents received
Notices of Violations from the City for various code violations on their respective
units. (Doc. 227 at 5). Defendants admit that the City sent notices of code
violations to individual tenants of the Property in 2015 but there is no record
evidence of any specific notices. (Doc. 229 at 2).
In 2016, the City created the Community Improvement Division, which
removed code enforcement from the police department. (Doc. 227-6 at 36). Debra
McNeil testified that “when [they] first started doing Code Enforcement . . . it

started to come to the forefront . . . that there was heavy blight, and there were
areas that they wanted to begin it with Code Enforcement.” (Id. at 80–82). Ms.
McNeil was directed to focus on the “blighted areas,” which included the Property.
(Doc. 228-9 at 81–84; Doc. 227-6 at 99).
In 2016 and 2017, the City received persistent complaints from Anthony
Perez who, among other things, sent Ms. McNeil emails with photographs and
complaints about various issues, many of which were about Clewiston Commons.

(Doc. 227-6 at 109–12, 181; Doc. 227-7 at 1, 5–36). Ms. McNeil testified that she
had spoken with Mali Gardner about the area where Clewiston Commons was
located as well. (Doc. 227-6 at 180).2 Ms. McNeil issued numerous citations at the
Property, most of which were resolved or cancelled. (Doc. 228 at 5; Doc. 228-19 at
1–6). Mr. Khan testified that Plaintiff “spent tens of thousands of dollars” to “clean

2 In an email to Ms. Gardner, Mr. Perez commented that even if RVs are allowed in
an area zoned for mobile homes, “they can be made to remove the structure or not
allowed the electrical connection when they go to rent the structure. This will drive
them out of business which should be the goal.” (Doc. 227-8 at 1). Ms. Gardner
responded that “they are working on those issues to place pressure but . . . it’s been
many years since any of the issues have been addressed” and that certain
individuals were “both committed to cleaning up Clewiston by compliance and to
have a working code enforcement process.” (Id.) Mayor Gardner testified during
her deposition that “recreational vehicles in . . . mobile home parks, they are
disgusting. They have additions on them, they have all kinds of things trying to
make them a home, and they are not a home. That is my opinion. So there is harm
. . . to a community.” (Doc. 227-10 at 74).
up” the code violations. (Doc. 227-3 at 78). More specifically, Mr. Khan testified
that Plaintiff has suffered “loss of income” and “loss of ability to raise [the] rents
because [it] can’t move anybody out.” (Id. at 84).

In 2016, Plaintiff applied for a special exception to operate, repair, and
replace units within the Property. (Doc. 227-3 at 53–54; Doc. 228-20 at 1). Mr.
Khan testified that the City planned to allow Plaintiff to continue operating the
mobile home park but it would not allow Plaintiff to put in new mobile homes if one
fell into disrepair or someone moved. (Id. at 54–55). Mr. Charles Schoech, the
former City attorney, testified that the City’s underlying reason for no longer
permitting replacement of units was that:

There was a lot of discussion in the town regarding the
appearance of the trailers and mobile homes in the part.
And the typical discussion was that it was an eyesore. And
so the City began enforcing the codes more than they had
in the past. And there was a request by an attorney in
town, which came through the mayor, to have stronger
enforcement in this area because of the appearance.

(Doc. 227-11 at 23). Mr. Schoech further testified that “Mr. Reese was instructed
not to issue any more permits for the replacement of mobile homes” and that it was
his “understanding that that request came through the city manager and was
specifically implemented by Mali Gardner.” (Id. at 68).
Plaintiff’s request for a special exception was set for a public hearing in May,
tabled until July, and then tabled again. (Doc. 227-5 at 141–44). Before the August
meeting, Travis Reese prepared a report for the City Commission stating that “[t]he
use of a mobile home park is a legal non-conforming use. The applicant wishes to
continue the use of a mobile home park in this area so as older trailers leave, they
can be replaced. The city cannot permit replacement of mobile homes in the
commercial zoning district.” (Doc. 228-5 at 10). Mr. Reese did not make a

recommendation, instead stating that “[s]taff leaves the decision to board
discretion.” (Id.)
On August 15, 2016, the City Commission held its monthly meeting.
(Doc. 227-14 at 2). Mr. Khan was not present. (See id.) He indicated that he
believed that the hearing was set for September. (Doc. 228-2 at 71). At the hearing,
it was noted that “[t]he City cannot permit replacement of mobile homes with the
commercial zoning in place” and Mali Gardner noted that “at the Planning and

Zoning Board Meeting May 2, 2016, the recommendation was this special exception
be denied.” (Doc. 227-14 at 3). A notice addressed to Zahra Khan indicated that
“[a]t their regular meeting on August 15, 2016, the City Commission considered
your application and denied your request for a special exception.”
(Doc. 228-30 at 1).
Mr. Khan admits that he knew in August 2016 that Plaintiff’s special

exception request was denied. (Doc. 228-2 at 72). He “felt like [Plaintiff was] just
being railroaded at the time” and had a “feeling [Plaintiff was] being pushed
through a process.” (Id. at 72–73). When asked whether he felt that it was not
worth his time to appeal, Mr. Khan stated that Plaintiff was “the little guy” and
that it was a “fox guarding the henhouse situation.” (Id. at 73). Plaintiff did not
request a reconsideration or file an appeal to Florida courts with respect to the
denial of its special exception request. (Id. at 72–73; Doc. 228 at 7; Doc. 230 at 3).
Ms. McNeil testified that in 2017, she discovered that Clewiston Code section

50 provides that “except in zoning use districts RM-1 and RM-2, no person shall
occupy, use or locate a mobile home in any place other than a regularly licensed
mobile home park.” (Doc. 228-9 at 198). It further states that “no existing mobile
home which is located outside of a regularly licensed mobile home park shall be
replaced with another mobile home as such time as the present one is removed or
damaged beyond repair and/or becomes unsafe.” (Id.) Finally, the Clewiston Code
states that “[o]ccupancy of existing mobile home as permitted by subsection one of

this section shall nevertheless be limited to the person in whom legal or equitable
title to the real estate on which the mobile home is located.” (Id.) She states that
she sent an email to the City’s attorney asking him to review the ordinance and
provide his “opinion of its interpretation relative to Clewiston Commons, which is a
non-conforming mobile home park.” (Id. at 202). Ms. McNeil was concerned that
she had missed an obvious violation for Clewiston Commons. (Id. at 207).

Having determined that, in her opinion, the mobile park’s operation itself
was a code violation, in October 2017, Ms. McNeil drafted two notices of violation
(the “Termination Notices”) demanding that Plaintiff cease operating its mobile
home park because it conflicted with the commercial zoning designation.
(Id. at 233; Doc. 228-31). There were now two competing understandings of
Plaintiff’s property within the City: Mr. Reese believed that the Property was a
legal nonconforming use, such that the mobile home park could remain but not
expand via replacement of older trailers; Ms. McNeil believed that the existence of
the mobile home park in a property zoned for commercial use was, by definition, a

code violation. (Compare Doc. 228-5 at 10 with Doc. 228-9 at 198–214).
The Termination Notices issued by Ms. McNeil provided Plaintiff with 180
days from receipt to correct the issues. (Doc. 228-31 at 2). But Plaintiff disputed
the Termination Notices, which triggered a hearing with the Special Magistrate for
Code Enforcement. (Doc. 24-6 at 2). The hearing was scheduled for May 16, 2018.
(Id.) On May 14, 2018, Plaintiff filed the instant case. (See Doc. 1).
In October 2018, the Special Magistrate held the necessary hearing.

(Doc. 228-32). The Special Magistrate concluded that he lacked jurisdiction to rule
on a legal issue such as whether a specific mobile home park is a legal non-
conforming use and ordered Plaintiff to remove all mobile homes and cease the use
of the subject properties as a mobile home park 180 days from the date of the order,
which was October 30, 2018. (Doc. 228-32 at 2–3).
Plaintiff appealed the Special Magistrate’s decision to the Circuit Court in

Hendry County. (See Doc. 228-33). In March 2019, the parties filed a joint stay of
the state court case because the matters at issue in the state court case were the
same as those in this litigation. (Id.) And the City agreed to withhold action on the
Termination Notices pending resolution of this litigation. (Id. at 2).
The Fourth Amended Complaint, which is the operative complaint here, was
filed on September 24, 2019. (Doc. 111). Upon Defendant’s motion to dismiss (Doc.
117), the Court dismissed Count II (the federal due process claim) without prejudice
pending the state court case’s outcome. (Doc. 145 at 7–8). The parties filed cross-
motions for summary judgment in this matter in January 2020. (See Docs. 137,

154, 159, 161). The Court disposed of some of the claims via summary judgment
but found that the remaining claims would not become ripe until after certain
issues were resolved at the state court level. (See Doc. 189). Specifically, the Court
granted summary judgment to the City on Count I (the equal protection claim) only
as to the request for a special exception, and as to the individual Defendants based
on qualified immunity. (Id. at 3–5). The Court also granted summary judgment as
to Count III (Florida state due process) solely as to the building permits and special

exception (Id. at 6–7). Finally, the Court granted summary judgment as to Count
VII. (Id. at 10–11).
Shortly thereafter, the parties filed a joint motion requesting a stay of this
case pending resolution of the state court case. (Doc. 190 at 1). The Court granted
that motion and issued a stay. (Doc. 191).
On May 2, 2022, the Circuit Court of Hendry County rendered its order. (Doc.

198-3 at 3). The Circuit Court found that the City, upon notice to Plaintiff, “had the
right, at any point, to withdraw their permission to replace the trailers” and that
the City was “within their right to inform [Plaintiff] that they would no longer be
permitted to replace decrepit trailers with new trailers.” (Id. at 4–5). The Circuit
Court further stated that no replacement trailers would be allowed because the City
has given notice that they have withdrawn their permission to replace the trailers,
that the non-conforming use “must be allowed to continue until the property ceases
to be used as a trailer park” and that Plaintiff “is not permitted to extend th[e] life
of this nonconforming use by replacing trailers or by taking any other action that

would be in violation of city code.” (Id. at 5–6). Plaintiff indicated that there had
been no further appeal of the Special Magistrate’s order. (Doc. 198 at 3).
Plaintiff sought rehearing and/or clarification of the May 2, 2022 opinion.
(Id.; see also Doc. 198-4 at 2). The Florida Circuit Court clarified, on July 15, 2022,
that its prior ruling “disagree[d] with the Magistrate’s conclusion that replacement
of old mobile homes with new mobile homes does not extend the non-conforming
use.” (Doc. 198 at 3; Doc. 198-4 at 3). In other words, the Circuit Court held that

while the City cannot force the removal of usable mobiles homes from Plaintiff’s
property, replacement of old mobile homes with new mobile homes would extend
the non-conforming use, which is not permissible. (Doc. 198-4 at 3).
Plaintiff then filed a Petition for Writ of Certiorari with the Florida Second
District Court of Appeal on August 11, 2022. (Doc. 198 at 3). The Petition for Writ
of Certiorari was transferred to the newly created Sixth District Court of Appeal in

January 2023. (Id. at 4). On April 20, 2023, the appellate court denied the Petition
for Writ of Certiorari and the mandate was issued on May 11, 2023. (Id.) Plaintiff
thus represented to this Court that there were no further pending appellate matters
requiring resolution and requested a lift of the stay of this matter. (Id.) On May
15, 2023, Plaintiff filed a motion to lift the stay in this matter (Doc. 198), which this
Court granted on June 21, 2023.
On December 11, 2023, Plaintiff and Defendants filed cross-motions for
summary judgment. (Docs. 227, 228). These motions are before the Court now for
adjudication.

LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A material fact is one that “might affect the outcome of
the suit under the governing law.” Id. “[A] mere scintilla of evidence” does not

create a genuine issue of material fact, so a nonmoving party may not simply state
that “the jury might, and legally could, disbelieve the moving party’s evidence.”
Hinson v. Bias, 927 F.3d 1103, 1115–16 (11th Cir. 2019) (citation and internal
quotation marks omitted).
Courts may not make credibility determinations or weigh the evidence when
reviewing the record. Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.

2010) (“On summary judgment . . . [n]either [the Eleventh Circuit] nor the district
court are to undertake credibility determinations or weigh the evidence.”). Instead,
courts view evidence and draw all reasonable inferences in the nonmoving party’s
favor. Rojas v. Florida, 285 F.3d 1339, 1341–42 (11th Cir. 2002). But an “inference
is not reasonable if it is ‘only a guess or a possibility,’ for such an inference is not
based on the evidence but is pure conjecture and speculation.” Id. at 1324.
DISCUSSION
I. Count I: Equal protection under 42 U.S.C. § 1983.
Plaintiff’s equal protection claim is a “class of one” claim because it “allege[]s

not that [Plaintiff] belongs to a protected class, but that [it] is the only entity being
treated differently from all other similarly situated entities.” Chabad Chayil, Inc. v.
School Bd. of Miami-Dade Cnty., 48 F.4th 1222, 1223 (11th Cir. 2022).3 To prevail
on this claim, Plaintiff must show that it “has been intentionally treated differently
from others similarly situated and that there is no rational basis for the difference
in treatment.” Id. (quoting PBT Real Est., LLC v. Town of Palm Beach, 988 F.3d
1274, 1285 (11th Cir. 2021)).

“[D]ifferent treatment of dissimilarly situated persons does not violate the
equal protection clause.” PBT Real Est., LLC, 988 F.3d at 1285 (quoting Campbell
v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006)). And the Eleventh Circuit

3 In its response to Defendants’ motion for summary judgment, Plaintiff changes
course and states that this is not a selective enforcement case and thus a similarly
situated comparator is not necessary. (Doc. 230 at 8–9). But the Fourth Amended
Complaint is clearly a selective enforcement claim, (see Doc. 111 at ¶¶ 81–95).
Indeed, Plaintiff’s own motion for summary judgment states that “[t]his type of
equal protection claim is essentially a selective enforcement claim that, a city’s
ordinance was applied to one person and not other persons similarly situated” (Doc.
227 at 31). Plaintiff will not be permitted to suddenly change course in its response
to Defendants’ summary judgment motion. See White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1200 (11th Cir. 2015) (“Despite the liberal pleading standard
for civil complaints, plaintiffs may not raise new claims at the summary judgment
stage. . . . At the summary judgment stage, the proper procedure for plaintiffs to
assert a new claim is to amend the complaint. . . . A plaintiff may not amend her
complaint through argument in a brief opposing summary judgment”) (quoting
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004) (per
curiam) (internal quotation marks omitted).
applies the similarly situated requirement “with rigor.” Chabad Chayil, Inc., 48
F.4th at 1223 (quoting Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1207 (11th Cir.
2007)). The entities compared must be “prima facie identical in all relevant

respects.” Id. (citing PBT Real Est., LLC, 988 F.3d at 1285).
“Too broad a definition of ‘similarly situated’ could subject nearly all state
regulatory decisions to constitutional review in federal court and deny state
regulators the critical discretion they need to effectively perform their duties.”
Griffin Indus., Inc., 496 F.3d at 1203. “Conversely, too narrow a definition of
‘similarly situated’ could exclude from the zone of equal protection those who are
plainly treated disparately and without a rational basis.” Id. Thus, “[a] plaintiff

must ultimately show that it and any comparators are similarly situated in light of
all the factors that would be relevant to an objectively reasonable governmental
decisionmaker.” Chabad Chayil, Inc., 48 F.4th at 1223 (internal quotation marks
omitted) (quoting Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1275 (11th Cir.
2008)). In evaluating this requirement, courts consider the state action “in light of
the full variety of factors that an objectively reasonable governmental

decisionmaker would have found relevant in making the challenged action.” Burns
v. Town of Palm Beach, 999 F.3d 1317, 1352 (11th Cir. 2021) (quoting Campbell,
434 F.3d at 1314).
The Court previously found that defendants Gardner, Perry, Reese, and
McNeil are entitled to qualified immunity as to this claim. (Doc. 189 at 5). The
Court also rejected Plaintiff’s contention that similarly situated comparators were
granted special exceptions to the zoning law. First, the alleged comparator,
Clewiston Marina, was a zoned high-density residential, while Plaintiff is zoned
commercial. (Id. at 4). Second, even if Plaintiff could meet its burden of alleging a

similarly situated comparator, the City provided legitimate government purposes to
plausibly explain its actions, such as reducing blight and creating a cohesive
neighborhood. (Id.) The Court reserved its decision on all other aspects of this
claim because they were not yet ripe due to the pending state court action.
(Id. at 3–4). As a threshold matter, the Court finds that all issues within this claim
are now ripe here because all appeals of this matter in state court have been
resolved. (Doc. 198 at 3–4).

Plaintiff and the City cross-move for summary judgment as to this claim.
Plaintiff argues that the Court should grant it summary judgment because “the City
has acted intentionally, arbitrarily, and maliciously in attempting to prevent
Plaintiff from the lawful use of the Property and denying Plaintiff equal protection
of the law afforded to all other similarly situated property owners in the City”
(Doc. 227 at 30–39), while Defendant argues that Plaintiff has not identified a valid

comparator and that the City’s actions are supported by a legitimate government
interest (Doc. 228 at 14–19).
The Court begins its analysis by deciding whether Plaintiff has identified any
similarly situated comparators. Plaintiff identifies several properties that it
maintains are similarly situated comparators that “have been identified by the City
as those who have been allowed to continue their non-conforming use and unlike
Plaintiff, have not been issued Notices of Violation to cease operation.” (Doc. 227 at
21). For example, Roland Martin Lake Side RV Park, Roland Martin RV Park, and
Aztec Mobile Home Park are properties zoned either R-3 (multiple-family

residential district) or Industrial but permitted to be used as mobile home and/or
RV park (the “Mobile Home Park Comparators”). (Id. at 20–21). Four other
properties identified by Plaintiff are zoned either Commercial or Residential but
permitted to be used as Single Family Residential or Agricultural (the “Other
Comparators”). (Id. at 21).
Defendants argue that the Mobile Home Park Comparators are not similarly
situated because none of them are zoned Commercial like Plaintiff. (Doc. 229 at

11). The Court agrees. The Mobile Home Park Comparators are located in different
zones from Plaintiff, which serve different zoning interests from Plaintiff’s zone, and
thus are not “similarly situated” to Plaintiff in all relevant respects. See Fla.
Teepee, LLC v. Walton Cnty., Fla., Case No. 3:22cv20588-TKW-ZCB, 2022 WL
19573772, at *2 (N.D. Fla. Dec. 16, 2022) (concluding that “the comparator
properties that were allegedly treated differently than Plaintiffs’ property are in

different zoning categories—and, thus, not similarly situated ‘in all relevant
respects’”); Sephardi v. Town of Surfside, No. 99-1566-CIV, 2003 WL 25728156, at
*1 (S.D. Fla. Jan. 6, 2003) (“The fact that the [properties] are located in different
zones, which serve different zoning interests, prevents them from being considered
to be ‘similarly situated’ for purposes of determining whether [defendant’s]
enforcement of its zoning laws was discriminatory. The Court can envision
circumstances in which the type of zone in which an entity is located could dictate
whether a city would choose to allow a nonconforming use”). Indeed, in the previous
summary judgment order in this matter, the Court found that Clewiston Marina,

Inc. was not a similarly situated comparator, in part because Clewiston Marina was
zoned high-density residential, while Clewiston Commons was zoned commercial.
(Doc. 189 at 4).
The Other Comparators are also not adequately similarly situated to
Plaintiff.4 Three of the Other Comparators are zoned Commercial but permitted for
use as Single Family Residential. (Doc. 227 at 21). While the Property is also zoned
Commercial, the Property and these potential comparators are being used for

different non-conforming purposes; thus, they are not similarly situated
comparators. See Campbell, 434 F.3d at 1314–15 (“In any type of zoning situation,
the use of the proposed development is quite relevant. . . . Because the [plaintiffs]
sought to build a large residential complex, it would be in error for the court to
consider commercial developments that sought tentative approval to be considered
similarly situated.”). The last of the Other Comparators is zoned Residential but

permitted to be used as Agricultural. (Doc. 227 at 21). Plainly, for the same
reasons as the Mobile Home Park Comparators and the rest of the Other
Comparators, that alleged comparator is not similarly situated to Plaintiff.

4 There is a dispute over whether the evidence of Other Comparators is admissible.
(Doc. 229 at 8–10; Doc. 231 at 2–3). Because the Court finds that the Other
Comparators are not similarly situated comparators, it need not address this
dispute.
Plaintiff points to two out-of-circuit cases, seemingly in support of its
argument that the comparators are similarly situated. (Doc. 227 at 33–34).
Although these cases are not mandatory authority for this Court, the Court has

considered them in its analysis and found that they are not persuasive on the issues
in this matter.
In Eternal Investments, LLC v. City of Lee’s Summit, No. 05-0521-CV-W-FJG,
2007 WL 679883 (W.D. Mo. 2007), a court granted summary judgment to a
developer on its equal protection claim where, according to Plaintiff’s summary,
plaintiff “presented evidence that every other developer that applied to rezone
property in the preceding 10 years had been successful and that their properties

had similar characteristics to the plaintiff’s tracts of land.” (Doc. 227 at 33). But in
that case, the plaintiff stated that “every other applicant who sought rezoning from
AG to R-1, got their property rezoned as requested,” except plaintiff. Eternal
Investments, LLC, 2007 WL 679883, at *4 (emphasis added). Here, Plaintiff has
provided no comparator that is both zoned Commercial and is being used as a
mobile home or RV park. Unlike here, the plaintiff in Eternal Investments further

provided details about how certain tracts of land were nearly identical to its tract of
land. Id. No such evidence has been presented here.
In Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir. 2012), the Second
Circuit found that where “the issues compared are discrete and not cumulative or
affected by the character of the project as a whole, multiple comparators are
sufficient so long as the issues being compared are so similar that differential
treatment with regard to them cannot be explained by anything other than
discrimination.” 694 F.3d at 222–23 (emphasis added). In that case, a church’s
application was denied purportedly because of “a recently enacted ‘steep slope’

zoning ordinance, stress on the police and fire departments, retaining walls that
constituted an attractive nuisance, and traffic and parking problems.” Id. at 223.
In other words, the application in that case was denied for discrete issues that did
not spur denials in other applications containing similar discrete issues. Id. The
character of the project as a whole was not at issue. Id. Here, however, the
issuance of the Termination Notices, the denial of a special exception, and the
denial of replacement permits all occurred because Plaintiff was operating a mobile

home and RV park in a property zoned Commercial, which this Court finds is an
issue affected by the character of the project as a whole. Thus, similarly situated
comparators would also have to be operators of mobile homes in commercial zones.
Accordingly, the analysis in Fortress Bible Church is not helpful to Plaintiff here.
Because the “similarly situated” requirement must be enforced with rigor, the
Court finds that neither the Mobile Home Park Comparators nor the Other

Comparators is similarly situated to Plaintiff. See Chabad Chayil, Inc., 48 F.4th at
1223 (“We apply the similarly situated requirement with rigor”) (internal quotation
marks and citations omitted); see also Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st
Cir. 2007) (“The ‘similarly situated’ requirement must be enforced with particular
rigor in the land-use context because zoning decisions ‘will often, perhaps almost
always, treat one landowner differently from another”) (quoting Vill. Of
Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (Breyer, J., concurring); Lindquist v.
City of Pasadena, Tex., 656 F. Supp. 2d 662, 688 (S.D. Tex. 2009) (high showing of
similarity required because “unless carefully circumscribed, the concept of a class-

of-one equal protection claim could effectively provide a federal cause of action for
review of almost every executive and administrative decision made by state actors”)
(quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1210 (10th Cir. 2004)).
Because no reasonable jury could find that a similarly situated comparator
exists in this matter, the Court need not address whether there was a rational basis
for the City’s treatment of Plaintiff. The Court notes, however, that it previously
determined that “[e]ven if Clewiston Commons could meet its burden of alleging a

similarly situated comparator, the City provides legitimate government purposes to
plausibly explain its actions, such as reducing blight and creating a cohesive
neighborhood.” (Doc. 189 at 4 (citing Corn v. City of Lauderdale Lakes, 997 F.2d
1369, 1387 (11th Cir. 1993)). Because no reasonable jury could find that Plaintiff
identified a similarly situated comparator, the Court grants summary judgment to
the City as to the equal protection claim.

II. Count II: The federal due process claim.
Count II was dismissed without prejudice pending the outcome of the state
court case. (Doc. 145 at 7–8). Plaintiff has not pursued reinstatement of this claim.
Accordingly, the Court finds that Plaintiff has abandoned this claim.
III. Count III: State law procedural due process claim.
The Florida Constitution’s due process clause provides, “[n]o person shall be
deprived of life, liberty or property without due process of law.” Fla. Const. art. I,

§ 9. “Procedural due process imposes constraints on governmental decisions that
deprive individuals of liberty or property interests.” Massey v. Charlotte Cnty., 842
So. 2d 142, 146 (Fla. 2d DCA 2003). It “serves as a vehicle to ensure fair treatment
through the proper administration of justice where substantive rights are at issue.”
Dep’t of Law Enforcement v. Real Prop., 588 So. 2d 957, 960 (Fla. 1991). Procedural
due process “requires both fair notice and a real opportunity to be heard.” Keys
Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948

(Fla. 2001). The notice must convey the requisite information to the parties affected
and it must afford the parties an appropriate amount of time to make their
appearance. Id. “The specific parameters of the notice and opportunity to be heard
required by procedural due process are not evaluated by fixed rules of law, but
rather by the requirements of the particular proceeding.” Id. (citing Gilbert v.
Homar, 520 U.S. 924 (1997)). “Due process is flexible and calls for such procedural

protections as the particular situation demands.” Schimenti v. School Bd. of
Hernando Cnty., 73 So. 3d 831, 833 (Fla. 5th DCA 2011). Defendant moves for
summary judgment on this count, but Plaintiff does not. (Doc. 228 at 19–21).
Plaintiff’s state law procedural due process claim consists of several
components, but the Court’s previous order granted summary judgment to the City
as to the entirety of the claim other than as to the Termination Notices. (Doc. 189
at 5–7). Accordingly, the Court now considers whether the City failed to provide
due process because Plaintiff did not have an adequate opportunity to be heard
before the Termination Notices were issued and whether the fact that the

Termination Notices lacked information about Plaintiff’s opportunity to object
constitutes a failure to provide due process.
First, it does not appear that Plaintiff was ever actually deprived of liberty or
property because of the Termination Notices. Plaintiff admits that the City agreed
not to take any action to enforce the Termination Notices while the state court
action was pending. (Doc. 228-33 at ¶ 5; Doc. 228 at ¶ 41; Doc. 230 at ¶ 41). And
the state court ultimately ruled that “the City of Clewiston cannot force the removal

of all usable mobile homes from Clewiston Commons property.”
(Doc. 227-23 at 2). Accordingly, there is no record evidence that any deprivation of
liberty or property occurred. Thus, Plaintiff’s claim must fail as a matter of law.
See Fla. Const. art. I, § 9. See Cleveland Bd. of Educ. v. Loudermill 470 U.S. 532,
542 (1985) (due process requires “that a deprivation of life, liberty, or property be
preceded by notice and opportunity for hearing appropriate to the nature of the

case”) (emphasis added) (quotation marks omitted). Plaintiff insists that it should
have been given an opportunity to challenge the Termination Notices before they
were issued, but even if Plaintiff was deprived of some liberty or property at some
point, there is certainly no evidence in the record that the Termination Notices
themselves deprived Plaintiff of any liberty or property and Plaintiff has provided
no case law or non-conclusory argument supporting otherwise.
Even if the Termination Notices had eventually deprived Plaintiff of liberty
or property, Plaintiff “was afforded, and actually utilized, full judicial procedures to
challenge” the City’s decisions. See City of Pompano Beach v. Yardarm Restaurant,

Inc., 934 So. 2d 861, 866 (Fla. 4th DCA 2002) (citing Boatman v. Town of Oakland,
76 F.3d 341 (11th Cir. 1996) (holding that property owners’ civil rights action
against a town for its refusal to issue them a certificate of occupancy did not fall
under the procedural component of § 1983 because the state provided them all the
process they were due, i.e., the right to repair to the circuit court and seek an order
compelling a final inspection)).5
It is undisputed that Plaintiff had a hearing with the Special Magistrate for

Code Enforcement. (Doc. 24-6 at 2). After this Court granted summary judgment
in part and found that the remainder of the claims were not ripe until after certain
issues were resolved at the state court level (Doc. 189), the parties stayed this
matter and went through the state court process. (See Doc. 190).

5 There are significant similarities between the due process clauses of the United
States and Florida Constitutions, making analyses of claims arising from each
substantially similar to the other. See Persaud Properties FL Investments, LLC v.
Town of Fort Myers Beach, Florida, 658 F. Supp. 3d 1072, 1079 (M.D. Fla. 2023),
appeal dismissed, 23-10881-DD, 2023 WL 6141293 (11th Cir. Aug. 14, 2023);
DuPont Hollywood Ltd. v. City of Hollywood, Fla., Case No: 06-60697-CIV-
MORENO, 2006 WL 8432519, at * 2 (S.D. Fla. Oct. 17, 2006) (noting that the facts,
burdens of proof, and analysis with respect to the due process clauses of the United
States Constitution and the Florida Constitution are substantially similar)
(citation omitted)); cf. Dep’t of Law Enforcement v. Real Prop., 588 So. 2d 957, 960
(Fla. 1991) (explaining that under both the Florida Constitution and the United
States Constitution, “procedural due process serves as a vehicle to ensure fair
treatment through the proper administration of justice where substantive rights are
at issue”).
First, the Circuit Court found that the Special Magistrate improperly
concluded that he could not make a determination of the law as to Clewiston
Commons’ legal nonconforming use. (Doc. 227-20 at 1–2). The Special Magistrate

then spent two days reviewing exhibits and hearing testimony, after which the
Special Magistrate found, in relevant part, that the continued mobile home park
use is permissible as a legal non-conforming use. (Doc. 227-21 at 1–9). The Circuit
Court affirmed as to that part of the Special Magistrate’s order. (Doc. 227-22 at 5).
The Circuit Court then reiterated, in a final order, that Plaintiff’s non-conforming
use “must be allowed to continue until the property ceases to be used as a trailer
park.” (Doc. 227-23 at 1–2). Given this procedural history demonstrating both the

requisite notice and opportunity to be heard components of procedural due process
no reasonable jury could find that Plaintiff was deprived of procedural due process.
Furthermore, Plaintiff provides no case law supporting its theory that the due
process it received took too long. (Doc. 230 at 11).
In sum, the Court finds that no deprivation of property ever occurred.
Moreover, Plaintiff plainly had the opportunity to challenge the Termination

Notices before any potential deprivation could occur and it successfully did so.
Accordingly, the Court grants summary judgment to Defendant on this count.
IV. Count IV: Inverse condemnation/takings claim.
“Inverse condemnation is a cause of action by a property owner to recover the
value of property that has been de facto taken by an agency having the power of
eminent domain where no formal exercise of that power has been undertaken.”
Osceola Cnty. v. Best Diversified, Inc., 936 So. 2d 55, 59–60 (Fla. 5th DCA 2006)
(citations omitted). Plaintiff’s inverse condemnation claim arises under both the
Fifth Amendment of the United States Constitution and under Article X of the

Florida Constitution. (Doc. 111 at ¶ 110).
Under Article X, Section 6(a) of the Florida Constitution, “[n]o private
property shall be taken except for a public purpose and with full compensation
therefor paid to each owner[.]” To plead a sufficient takings claim under the Florida
Constitution, a plaintiff must allege that the government either (1) required him to
submit to a temporary or permanent physical occupation of his land or (2) enacted a
regulation or imposed a condition that deprived him of all economically beneficial

use of his land. Fla. Fish & Wildlife Conservation Comm’n v. Daws, 256 So. 3d 907,
914 (Fla. 1st DCA 2018). The Takings Clause of the Fifth Amendment provides
that property shall not “be taken for public use, without just compensation.” U.S.
Const. amend. V. Courts within the Eleventh Circuit “analyze claims under the
[Fifth Amendment’s] Takings Clause and Article 10, Section 6 of the Florida
Constitution under the same legal standard.” Megladon, Inc. v. Vill. of Pinecrest,

661 F. Supp. 3d 1214, 1239 n.16 (S.D. Fla. 2023) (citation omitted); see also
Chmielewski v. City of St. Pete Beach, 890 F.3d 942, 949 (11th Cir. 2018) (“Because
Florida follows federal takings law, we can look to cases brought under the Fifth
Amendment to inform our analysis.”).
Takings may be categorical or regulatory. Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322–23 (2002). Categorical takings occur
when the government “physically takes possession for an interest in property for
some public purpose” and thus has a “categorical duty to compensate the former
owner.” Id. (citation omitted). Regulatory takings, on the other hand, stem from

government regulation that “goes too far” and thus are recognized as takings.
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537–38 (2005). Regulatory takings
require “essentially ad hoc, factual inquiries . . . designed to allow careful
examination and weighing of all the relevant circumstances.” Tahoe-Sierra Pres.
Council, Inc., 535 U.S. 302, 322 (2002) (quotation marks and citation omitted). The
distinction is between acquisitions of property for public use (a categorical taking)
and regulations prohibiting private uses (a regulatory taking). Id. at 323–24.

Importantly, “[l]and-use regulations are ubiquitous and most of them impact
property values in some tangential way—often in completely unanticipated ways.”
Id. at 324. And “[t]reating them all as per se takings would transform government
regulation into a luxury few governments could afford.” Id.
A regulation which completely deprives an owner of “all economically
beneficial us[e]” of his property, however, will constitute a per se taking under the

Fifth Amendment. Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1019
(1992) (emphasis in original). “[T]he government must pay just compensation for
such ‘total regulatory takings,’ except to the extent that ‘background principles of
nuisance and property law’ independently restrict the owner’s intended use of the
property.” Lingle, 544 U.S. at 538 (citing Lucas, 505 U.S. at 1026–32).
Plaintiff and the City have each moved for summary judgment on this count.
(Doc. 227 at 41–43; Doc. 228 at 21–30). Plaintiff argues that the City’s actions with
respect to the Property, including the City’s denial of Plaintiff’s permits,

enforcement of corrective actions, denial of the Special Exception application and
issuance of the Termination Notices have had and continue to have a detrimental
economic effect on Plaintiff and unreasonably interfere with Plaintiff’s reasonable
use of the Property. (Doc. 227 at 41; Doc. 111 at ¶¶ 110, 115). Defendant agrees
that Plaintiff possesses a cognizable Fifth Amendment property interest in the
continued use of its land as a trailer park but argues that Plaintiff had no
cognizable property interest related to the special exception and building permits

and because the Termination Notices never went into effect. (Doc. 228 at 22–30).
Although Plaintiff summarily states that “each and all [of the City’s actions]
deprive Plaintiff of all or substantially all economic, beneficial use of the Property,”
Plaintiff has not proffered any evidence of deprivation of all economic, beneficial
use of the Property. (See Doc. 227 at 41). For example, Mr. Khan testified that
Plaintiff has “suffered loss of income” and “loss of ability to raise [it]s rents because

[it] can’t move anybody out.” (Doc. 227-3 at 83). But that does not amount to a
deprivation of all economically beneficial use. See Lingle, 544 U.S. at 539 (“In the
Lucas context, . . . the complete elimination of a property’s value is the
determinative factor”); Lucas, 505 U.S. at 1019 n.8 (“[I]n at least some cases the
landowner with 95% loss will get nothing, while the landowner with total loss will
recover in full. . . . Takings law is full of these ‘all-or-nothing’ situations.”). Indeed,
the Supreme Court has found that “mere diminution in the value of property,
however serious, is insufficient to demonstrate a taking.” Concrete Pipe and Prods.
of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 645 (1993).

Because the Court has determined that Plaintiff has not been deprived of all
economically beneficial use of the Property, the Court will engage in an ad hoc,
factual inquiry to determine whether a taking took place. See Tahoe-Sierra Pres.
Council, Inc., 535 U.S. at 322. “In deciding whether a particular governmental
action has effected a taking, [courts] focus[] both on the character of the action and
on the nature and extent of the interference with rights in the parcel as a whole . . .
.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 130–31 (1978). There

is “no magic formula enabl[ing] a court to judge, in every case, whether a given
government interference with property is a taking. In view of the nearly infinite
variety of ways in which government actions or regulations can affect property
interests, the Court has recognized few invariable rules in this area.” Arkansas
Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012).
The Supreme Court has identified several factors that have particular

significance in the Court’s inquiry. See Penn Cent. Transp. Co. v. City of New York,
438 U.S. 104, 124 (1978). “The economic impact of the regulation on the claimant
and, particularly, the extent to which the regulation has interfered with distinct
investment-backed expectations are . . . relevant considerations.” Id. (citation
omitted). “So, too, is the character of the governmental action. A ‘taking’ may more
readily be found when the interference with property can be characterized as a
physical invasion by government . . . than when interference arises from some
public program adjusting the benefits and burdens of economic life to promote the
common good.” Id.

In applying the Penn Central factors, the Eleventh Circuit has advised that,
“[a] reduction in value alone will not constitute a taking.” Dirt, Inc. v. Mobile Cnty.
Comm’n, 739 F.2d 1562, 1566 (11th Cir. 1984). “[A]n otherwise valid exercise of the
police power is not a taking simply because the regulation deprives the owner of the
most beneficial use of his or her property.” Rymer v. Douglas Cnty., 764 F.2d 796,
801 (11th Cir. 1985). The “Penn Central inquiry turns in large part, albeit not
exclusively, upon the magnitude of a regulation’s economic impact and the degree to

which it interferes with legitimate property interests.” Lingle, 544 U.S. at 539–40.
Even if Plaintiff is correct that the City’s actions have made the use of the Property
as an income-producing mobile home park less fruitful or more difficult, there is
simply no evidence in the record that the City’s actions have created a reduction in
value of the Property itself.
Perhaps anticipating this result, Plaintiff states for the first time in its

response to Defendants’ motion for summary judgment that “there are questions of
material fact regarding the impact of the City’s actions on Plaintiff’s use
expectations and therefore, summary judgment cannot be entered in Defendants’
favor.” (Doc. 230 at 15). But discovery in this matter has closed and Plaintiff points
to no evidence whatsoever of the economic impact on the Property other than Mr.
Khan’s testimony that Plaintiff has “suffered loss of income, loss of ability to raise
[the] rents because [they] can’t move anybody out.” (Doc. 227-3 at 83). As such,
Plaintiff has failed to submit competent evidence to show that there has been
economic impact on the Property that would rise to the level of a taking. See

Samuel v. Granite Servs. Int’l, Inc., No. 8:15-CV-2072-T-33TGW, 2016 WL
11493322, at *9 (M.D. Fla. Nov. 23, 2016) (“[I]t is the party opposing summary
judgment, and not the Court, that bears the burden of perusing the record to find
evidence creating genuine issues of material fact”) (citation omitted); Lusco v. Univ.
Realty of Tampa, No. 8:13-cv-420-T-33EAJ, 2014 WL 1152934, at *6 (M.D. Fla. Mar.
21, 2014) (“It is the obligation of the non-moving party . . . not the court, to scour the
record in search of the evidence that would defeat a motion for summary

judgment.”).
Because Plaintiff has pointed to no record evidence of the economic impact on
the Property and has not identified any specific investment-backed expectation that
the City’s actions have stymied, the Court grants summary judgment to the City on
this count.6

6 The City’s initial motion argues that Plaintiff’s inverse condemnation count fails
because Plaintiff does not have a cognizable interest in the building permits and the
special exception. (Doc. 228 at 24–28). Whether or not true, these arguments miss
the point because Plaintiff is clearly complaining about an alleged loss of a
particular use of the Property, rather than its loss of permissions that would allow
it to keep the Property. (Doc. 111 at ¶¶ 109–20). In its reply, however, rather than
further opining on these arguments, Defendant argues that “Plaintiff has still
adduced no evidence to establish any fiscal impact on its property.” (Doc. 232 at 5).
V. Count V: Declaratory relief.
As a threshold matter, although the Fourth Amended Complaint indicates
that this count is brought under Florida state law, “[d]eclaratory judgment acts are

procedural in nature and, thus under the Erie doctrine, this Court must apply
federal procedural law.” Krauser v. BioHorizons, Inc., 903 F. Supp. 2d 1337, 1346
n.6 (S.D. Fla. 2012) (citations omitted); see also Manuel v. Convergys Corp., 430 F.3d
1132, 1138 n.3 (11th Cir. 2005) (“There is little doubt, and the parties do not argue
otherwise, that the district court had to apply the Declaratory Judgment Act, 28
U.S.C. § 2201 et seq., rather than the state declaratory judgment act, in this
action”); Goodbys Creek, LLC v. Arch Ins. Co., Case No. 3:07-cv-947-J-34HTS, 2009

WL 10671130, at *3 (M.D. Fla. Aug. 11, 2009) (“[T]he Court’s discretion with respect
to declaratory relief is specifically derived from the federal Declaratory Judgment
Act, which the Eleventh Circuit has held to be procedural in nature. . . .
Accordingly, the Court determines that although [the claim] seeks declaratory relief
pursuant to both the Florida and federal Declaratory Judgment Acts, the federal
Declaratory Judgment Act governs any procedural matters.”).

The federal Declaratory Judgment Act authorizes a federal court, “in a case of
actual controversy within its jurisdiction . . . [to] declare the rights and other legal
relations of any interest party seeking such declaration[.]” 28 U.S.C. § 2201. The
Declaratory Judgment Act requires that there must be an “actual controversy”
before a court considers granting declaratory relief. Med Immune Inc. v. Genentech,
Inc., 549 U.S. 118, 126 (2007). “Basically, the question in each case is whether the
facts alleged, under all circumstances, show that there is a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.” Id. at 127. “Ordinarily, a

controversy is not sufficiently immediate or real where the parties’ dispute . . . has
been rendered moot . . . .” Mt. Hawley Ins. Co. v. Tactic Security Enforcement, Inc.,
252 F. Supp. 3d 1307, 1309 (M.D. Fla. 2017) (citing Texas v. United States, 523 U.S.
296, 300 (1998)).
Here, Plaintiff’s request for a declaratory judgment indicates five specific
declarations that Plaintiff wishes the Court to make. (Doc. 111 at ¶¶ 121–39). All
five of the requested declarations were denied on the merits for the reasons

explained in this order, where the Court granted the Defendants’ motions for
summary judgment as to each of them. That is, there is nothing left for the Court to
declare because the declarations sought are either moot or the underlying claim
underpinning the requested declarations has been adjudicated. Even more,
Plaintiff fails to point the Court to any legal support to justify such declarations.
In all events, for completeness, Plaintiff seeks an order declaring the use of

the Property as a mobile home park is a continued, legal non-conforming use. (Id.
at 32). This issue is moot because the state court has already determined that the
mobile home park is a legal non-conforming use. (Doc. 227-21 at 6; Doc. 227-22 at
2). See Mt. Hawley Ins. Co., 252 F. Supp. 3d at 1309 (citing Texas, 523 U.S. at 300).
Second, Plaintiff seeks an order declaring the Corrective Actions inconsistent
with the City’s zoning regulation powers and the City’s Code of Ordinances
unconstitutional. (Doc. 111 at 32). Plaintiff does not provide support for this
request. (Doc. 227 at 39–41); see also §§ I, III, IV.
Third, Plaintiff requests that the Court declare that the City’s denial of

Clewiston Commons’ Special Exception Application is inconsistent with the legal
non-conforming use allowed in the City and in the State of Florida. (Doc. 111 at 32).
Again, Plaintiff does not provide support for this request. (See § I).
Fourth, Plaintiff seeks an order declaring the Termination Notices “void ab
initio” as they fail to include times of any hearings before the Special Magistrate if
the violations were not corrected and did not provide a procedure or mechanism
through with Clewiston Commons could dispute or contest the violations before a

Special Magistrate and/or Circuit Court.” (Doc. 111 at 32); see Mt. Hawley Ins. Co.,
252 F. Supp. 3d at 1309 (citing Texas, 523 U.S. at 300). The issue of the
Termination Notices is moot because the Circuit Court essentially found that they
cannot be effectuated. (See Doc. 227-23 at 1–2 (“Plaintiff’s non-conforming use of
the Property “must be allowed to continue until the [P]roperty ceases to be used as a
trailer park.”)).

Finally, Plaintiff requests an award of all attorney’s fees, costs, and expenses
incurred by Plaintiff in the prosecution of this action. But Plaintiff has not provided
any basis on which the Court should grant it attorneys’ fees.
Thus, Plaintiff’s motion for summary judgment is denied as to this count.
And the Court dismisses Count V as a matter of law. First, the Court has granted
summary judgment to Defendants on the claims underpinning the declarations
sought by Plaintiff here. Alternatively, it is not this Court’s responsibility to mine
the record to find evidence that could support Plaintiff’s declaratory claim. See
Samuel, 2016 WL 11493322, at *9 (“[I]t is the party opposing summary judgment,

and not the Court, that bears the burden of perusing the record to find evidence
creating genuine issues of material fact”) (citation omitted); Lusco, 2014 WL
1152934, at *6 (“It is the obligation of the non-moving party . . . not the court, to
scour the record in search of the evidence that would defeat a motion for summary
judgment.”). But that’s what the Plaintiff has left the Court to do here.
VI. Count VI: Tortious interference.
Under Florida law, the elements of tortious interference with a business

relationship are: (1) the existence of a business relationship that affords the
plaintiff existing or prospective legal rights; (2) the defendant’s knowledge of the
business relationship; (3) the defendant’s intentional and unjustified interference
with the relationship; and (4) damage to the plaintiff. See Int’l Sales & Servs., Inc.
v. Austral Insulated Prods., Inc., 262 F.3d 1152, 1154 (11th Cir. 2001) (citing Ethan
Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994)). “Causation

requires a plaintiff to prove that the defendant manifested a specific intent to
interfere with the business relationship. No liability will attach unless it is
established that the defendant intended to procure a breach.” Mortgage Now, Inc.
v. Guaranteed Home Mortg. Co., Inc., 545 Fed. App’x 809, 811 (11th Cir. 2013)
(quoting Fiberglass Coatings, Inc. v. Interstate Chem., Inc., 16 So. 3d 836, 838 (Fla.
2d DCA 2009)).
Plaintiff moves for summary judgment, claiming that the City and the
individual defendants tortiously interfered with Plaintiff’s business relationships,
including with the tenants of the mobile home park, as well as with “various

contractors, consultants, and vendors that Clewiston Commons did business with
for the use and management of the [P]roperty.” (Doc. 227 at 44). Defendants admit
that the first element of tortious interference is not at issue but argue that Plaintiff
cannot prove the remaining elements. (Doc. 228 at 30–33; Doc. 229 at 18).
The Court denies both motions for summary judgment on this claim. As an
initial matter, Defendants’ argument that all of their actions were within their
police power is conclusory. Moreover, while a reasonable jury could find that

Defendants’ actions were within their police power, the Court finds that a
reasonable jury could also find that at least some of their actions were not.
Defendants admit that the first element of tortious interference is not at
issue. (Doc. 229 at 18). With respect to the remaining elements, there is sufficient
record evidence that Defendants7 knew about the existing business relationships
and wished to interfere with Plaintiff’s leases (see e.g., Doc. 227-8 at 1) such that a

reasonable jury could find that they interfered without justification, at least with
respect to the Termination Notices. A reasonable jury could infer this intent
because, as the state court found, Plaintiff’s use of the Property was a legal non-

7 The Court refers to “Defendants” because Count VI was brought against
Defendants City, Gardner, Perry, Reese, and McNeil. Defendants did not argue
that the claim should, in the alternative, be dismissed as to only certain of
Defendants; thus the claim remains against all of them.
conforming use that “must be allowed to continue until the [P]roperty ceases to be
used as a trailer park.” (See Doc. 228-23 at 8; Doc. 227-22).
The Court notes that whether to grant Defendant’s motion for summary

judgment on this count was a close call for two reasons, each of which present
serious issues with Plaintiff’s tortious interference claim.
First, despite the many allegations of general ill will in the fact section of
Plaintiff’s argument, Plaintiff failed to point to any record evidence to demonstrate
any specific business relationships that Defendants knew of and knowingly
interfered with. See Abusaid v. Hillsborough Cnty. Bd. of Cnty. Com’rs, 637 F.
Supp. 2d 1002, 1027 (M.D. Fla. 2007) (“Florida law does not recognize an action for

interfere with a business’s relationship to past customers or the community at
large.”). Second, although the record contains some general, broad stroke evidence
of damages (Doc. 227-3 at 83–84), the record is scant with evidence as to damages.
Plaintiff will have to show that the damages are specifically connected to any
interference that was unjustified as opposed to interference that was justified.
Ultimately, the Court finds that a reasonable jury could find that Defendants knew

about and unjustifiably interfered with Plaintiff’s business relationships,
particularly with respect to Plaintiff’s tenants and that Plaintiff suffered damages
as a result. (Doc. 228 at 30–32).
CONCLUSION
For the reasons set forth above, it is ORDERED:
1. Plaintiff’s Motion for Summary Judgment (Doc. 227) is DENIED.

2. Defendants’ Motion for Summary Judgment (Doc. 228) is GRANTED in
part and DENIED in part.
3. The only remaining count in this matter is Count VI, the tortious interference
with business relationships claim. Should the parties wish to file renewed
motions for summary judgment on this count, they may file a request for
leave to do so.
4. Independently, this Court appreciates the complexity of this case and the

frustration of the parties. The Court is mindful that the parties have each
incurred litigation costs and that an appeal of this Court’s order may further
increase those litigation costs. To attempt to defray additional costs, the
Court will offer the parties a settlement conference to be conducted by a
United States Magistrate Judge at no additional costs to them. The Court
asks that, should the parties request such, that they do so after meaningfully

conferring with each other that a settlement is reasonable given the parties’
positions. Should the parties wish to request a settlement conference
conducted by a United States Magistrate Judge, they shall file a joint notice
stating same no later than May 3, 2024. Otherwise, the Court will notice a
status hearing to discuss scheduling trial.
5. The Clerk of Court is DIRECTED to terminate Defendant Kathy Combass
because there are no claims remaining against her.
ORDERED at Fort Myers, Florida on April 238, 2024.
A . a - om,
PEA ChutleneL
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115893. Public record. Not legal advice.