Congregation 3401 Prarie Bais Yeshaya Dkerestir, Inc. v. City of Miami Beach

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-21213-CIV-ALTONAGA/Torres

CONGREGATION 3401 PRAIRIE

BAIS YESHAYA D’KERESTIR,

INC.,

Plaintiff,

v.

CITY OF MIAMI BEACH,

Defendant.

________________________________/

ORDER

THIS CAUSE came before the Court upon the parties’ cross motions for summary

judgment. On March 20, 2023, Plaintiff Congregation 3401 Prairie Bais Yeshaya D’Kerestir, Inc.

filed a Motion for Summary Judgment [ECF No. 127], along with its supporting Statement of

Material Facts (“Plaintiff’s SOF”) [ECF No. 129]. The same day, Defendant City of Miami Beach

(“Defendant” or the “City”) filed a Motion for Summary Judgment [ECF No. 134] and supporting

Statement of Material Facts (“Defendant’s SOF”) [ECF No. 133]. On April 3, 2023, the parties

filed their Responses to the Motions and Statements of Material Facts [ECF Nos. 150–53], to

which they also filed Replies [ECF Nos. 159 & 161]. After thorough review of the parties’ written

submissions, the record, and applicable law, the Motions are granted in part and denied in part.

I. BACKGROUND

Plaintiff’s Amended Complaint [ECF No. 9] asserts two claims against Defendant

requesting damages and injunctive relief under 28 U.S.C. section 1983 for alleged violations of

the First and Fourteenth Amendments. (See Am. Compl. ¶¶ 92–113; see also Oct. 6, 2022 Order

[ECF No. 48] (allowing Counts I and II of the Amended Complaint to remain)). In addition,

Defendant asserts a counterclaim seeking a declaratory judgment that Plaintiff is operating a

religious institution in violation of the City Code. (See Am. Answer [ECF No. 68] 30–32; see also

Mar. 7, 2023 Order [ECF No. 118] (dismissing Defendant’s second counterclaim)).1

Plaintiff, a non-profit corporation organized for religious purposes, owns a single-family

home (the “Property”) in a neighborhood of Miami Beach designated as an “RS-4 single family

residential district[.]” (Am. Compl. ¶¶ 16, 20–21 (alteration added); see Am. Answer, Ex. 3,

Articles of Incorporation [ECF No. 68-3]). The Property has long been associated with the

Orthodox Jewish Kerestir community, which honors Rabbi Yeshaya Steiner. (See Pl.’s SOF,

Ex. 1, Brechner Decl. [ECF No. 129-1] ¶ 4); Grosz v. City of Miami Beach, 721 F.2d 729, 731

(11th Cir. 1983). Plaintiff’s officers and directors are part of this community. (See Pl.’s SOF ¶

3). According to Plaintiff, it uses the Property for daily “minyan,” an Orthodox Jewish prayer

service. (See Pl.’s SOF ¶¶ 4–8; Am. Compl. ¶¶ 41, 97).

The City Code prohibits the operation of religious institutions in the RS-4 residential

district but does not restrict private prayer in the home. See Miami Beach, FL, Code § 114-1

(providing definition of “religious institution”); id. §§ 142-102–142-104 (listing permitted uses in

RS-4 district); id. § 114-4(3) (prohibiting any uses not explicitly permitted). Specifically, the City

Code defines the term “religious institution” as follows:

Religious institution means a use where an establishment, organization or

association conducts religious prayer or activity that is open to members and/or the

general public, and may be accompanied by accessory uses customarily associated

with religious institutions such as, but not limited to, education classes, youth

centers, day care, offices, and rooms for licensed catering of life cycle or other

gatherings or celebrations (e.g., weddings, confirmations, and coming-of-age

events). A group privately assembling for worship, prayer or religious service in a

private home or dwelling in which at least one member of the group resides, is not

a religious institution, even if life cycle rituals are included in the service, including

1 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers

of all court filings. Citations to deposition testimony rely on the pagination and line numbering in the

original document.

weddings, confirmations, and coming-of-age (such as bar or bat-mitzvah)

observances and meals accompany the service.

Id. § 114-1.

Previous owners of the Property illegally used the residence as a religious institution —

including as “a school, a dormitory, and a retail gift shop” — and were subject to code enforcement

activities by the City. (Am. Compl. ¶ 35; see also Pl.’s SOF ¶ 9; Def.’s SOF ¶¶ 6–15). Aware of

these previous violations, Plaintiff claims it met with City officials before purchasing the Property

to discuss converting the Property to residential use. (See Am. Compl. ¶ 36; Brechner Decl. ¶¶

12–13; but see Def.’s Resp. to Pl.’s SOF ¶ 14 (explaining no discovery was produced with regard

to these alleged meetings)).

Following Plaintiff’s purchase of the Property, the City conducted a variety of code

inspections and other enforcement proceedings. (See generally Pl.’s SOF, Ex. 12, Code Violations

[ECF No. 129-12]). Notably, code enforcement officials visited the Property over 60 times in

order to enforce the City’s COVID-19 “Safer at Home” policy. (See id. 4–8). Defendant also

installed a video camera to monitor the Property and issued various building code and landscape

violations. (See generally id.; see Pl.’s SOF, Ex. 15, Def.’s Resps. and Objs. to Pl.’s First Set of

Interrogs. [ECF No. 129-15] 8; Def.’s SOF ¶¶ 64–66).

On April 12, 2021, the City’s Code Compliance Department issued Plaintiff a Notice of

Code Violation (“NOV”) for “using a building or a part thereof for a use not permitted in the

district in which the building is located.” (Pl.’s SOF, Ex. 17, NOV [ECF No. 129-17] 2). While

the NOV did not specify the nature of the violation (see generally id.), an accompanying letter

from the City’s Planning Director, Thomas R. Mooney, stated that “Religious Institutions are

prohibited in the RS-4 district” (Pl.’s SOF, Ex. 19, Letter from Mooney [ECF No. 129-19] 2).

The City’s Special Magistrate conducted a hearing on the NOV and issued an order on

April 6, 2022 finding by “clear and convincing evidence” that “[t]he number of persons attending

the assemblies or gatherings observed at the Property, as well as their frequency are not a

compatible accessory use of a residential property[.]” (Pl.’s SOF, Ex. 25, Order on NOV [ECF

No. 129-25] 3 (alterations added)). Following Plaintiff’s filing of the instant suit, the City

submitted a petition for rehearing arguing the Special Magistrate’s interpretation of the City Code

was “erroneous[,]” and the Special Magistrate vacated the order. (Pl.’s SOF, Ex. 26, Pet. for Reh’g

[ECF No. 129-26] 2; see Pl.’s SOF, Ex. 27, Order on Reh’g [ECF No. 129-27] 2).

According to Plaintiff, City officials orchestrated the various code enforcement

proceedings to “unlawfully limit how and when [Plaintiff] could privately gather in its home to

worship[.]” (Pl.’s Mot. 1 (alterations added; emphasis in original)). Plaintiff proffers evidence

and expert testimony to support its position that it is not operating a synagogue on the Property,

but merely engaging in private prayer with guests consisting of individuals who reside at the

Property. (See generally Pl.’s SOF, Ex. 2, Chernov Rebuttal Report [ECF No. 129-2]; see also

Brechner Decl. ¶¶ 8–10; Pl.’s SOF, Ex. 4, Reich Dep. [ECF No. 129-4] 134:8–135:9; Pl.’s SOF,

Ex. 5, Goodfriend Dep. [ECF No. 129-5] 103:22–105:9). Plaintiff also points to numerous e-mails

between City officials discussing and directing code enforcement activity toward the Property; as

well as testimony that Defendant proceeded with the NOV without inspecting the Property,

speaking to Plaintiff, or speaking to Plaintiff’s “invited guests[.]” (Pl.’s SOF ¶ 34 (alteration

added; citing id., Ex. 8, Mooney Dep. [ECF No. 129-8] 24:16–25); see Pl.’s SOF, Ex. 18, Negron

Dep. [ECF No. 18] 42:11–55:12; see, e.g., Pl.’s SOF, Ex. 13, Composite M [ECF No. 129-13]).

According to Defendant, Plaintiff is affiliated with the Property’s previous owners and

continues to use the Property as a religious institution. (See Def.’s SOF ¶¶ 8–11, 16–19 (explaining

the overlap in officers of a previous entity that leased the Property for religious institutional use

and citing testimony that these officers fundraised to “prevent the shul’s conversion into a

residential property” (quotation marks and citations omitted))). Defendant offers its own expert

witness to support its position that Plaintiff is operating a synagogue and submits testimony and

other evidence that religious services are open to many of Plaintiff’s members — if not the general

public — in contravention of the City Code. (See Pl.’s SOF, Ex. 3, Hoffman Expert Report [ECF

No. 129-3]; see, e.g., Def.’s SOF, Ex. 1, Mooney Decl. [ECF No. 133-1] ¶ 32; Reich Dep. 113:16–

23). Defendant also points to testimony and neighbor complaints in support of its argument that

all its code enforcement activity was mostly unobtrusive, legitimate, and not motivated by animus

toward Plaintiff. (See Def.’s SOF ¶¶ 46–66 (citing Mooney Decl.; Brechner Dep. 256:5–257:15);

see, e.g., Mooney Decl. 47, 264, 839–40 (attaching neighbor complaints)).

As stated, the parties now move for summary judgment on all remaining counts of the

Amended Complaint and Defendant’s counterclaim on the basis that the material facts are

undisputed. (See generally Pl.’s Mot; Def.’s Mot.).

II. LEGAL STANDARD

Summary judgment may be rendered if the pleadings, discovery and disclosure materials

on file, and any affidavits show there is no genuine dispute of any material fact and the movant is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact is “material”

if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if the evidence could lead a

reasonable jury to find for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). The Court draws all reasonable inferences in

favor of the party opposing summary judgment. See Chapman v. AI Transp., 229 F.3d 1012, 1023

(11th Cir. 2000).

If the moving party bears the burden of proof on the relevant issue at trial, it can meet its

summary judgment burden only “by presenting affirmative evidence showing the absence of a

genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not

controverted at trial.” Emery v. Talladega Coll., 169 F. Supp. 3d 1271, 1280–81 (N.D. Ala. 2016)

(citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). With that showing

made, the moving party “is entitled to summary judgment unless the non-moving party, in

response, comes forward with significant, probative evidence demonstrating the existence of a

triable issue of fact.” Fitzpatrick, 2 F.3d at 1115 (alterations adopted; quoting United States v.

Four Parcels of Real Prop., 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)).

At summary judgement, courts may consider only evidence reducible to an admissible form

at trial. See Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005) (citation omitted).

“Summary judgment may be inappropriate even where the parties agree on the basic facts, but

disagree about the inferences that should be drawn from these facts.” Whelan v. Royal Caribbean

Cruises Ltd., No. 1:12-cv-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citation

omitted). Indeed, “[i]f reasonable minds might differ on the inferences arising from undisputed

facts, then the Court should deny summary judgment” and proceed to trial. Id. (alteration added;

citations omitted).

III. DISCUSSION

Defendant argues Plaintiff is clearly using the Property as a religious institution in violation

of the City Code, which forecloses Plaintiff’s claims under 28 U.S.C. section 1983 and compels

summary judgment in favor of Defendant with respect to Plaintiff’s claims and Defendant’s

counterclaim. (See generally Def.’s Mot.). Defendant adds that even assuming actionable

conduct, “there is no Monell liability [against the City] as a matter of law[,]” and summary

judgment is appropriate on that basis alone. (Id. 21 (alterations added; citing Monell v. Dep’t of

Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978) (establishing framework for attributing

liability to local governments under 28 U.S.C. section 1983))). Plaintiff contends that the

undisputed facts show it has met all the elements of its retaliation claim under the First Amendment

and Monell liability is proper. (See generally Pl.’s Mot.). Notwithstanding the Court’s

determination of those issues, Plaintiff requests at least partial summary judgment on specific

elements of Monell liability and seven of Defendant’s affirmative defenses. (See id. 21 & 21 n.10).

The Court grants partial summary judgment in favor of Defendant with respect to

Plaintiff’s Fourteenth Amendment claim and partial summary judgment in favor of Plaintiff with

respect to an element of Monell liability and two of Defendant’s affirmative defenses. But given

the genuine dispute over questions of material fact on all other issues, the Court denies summary

judgment on any other issues and claims.

A. Defendant’s Counterclaim

The Court first considers Defendant’s request for summary judgment on its counterclaim,

which seeks a declaration that Plaintiff is using the Property as a religious institution in violation

of the City Code. (See Def.’s Mot. 4–9; Am. Answer 32). Defendant argues that from a plain

interpretation of the City Code, Plaintiff “has been using and continues to use the Property as a

religious institution in violation of the zoning laws[.]” (Def.’s Mot. 3).

The City Code’s definition of a religious institution has four distinctive elements: a “[(1)]

use where [(2)] an establishment, organization or association [(3)] conducts religious prayer or

activity [(4)] that is open to members and/or the general public[.]” Miami Beach, FL, Code § 114-1

(alterations added). These elements are followed by an exception: “[a] group privately assembling

for worship, prayer or religious service in a private home or dwelling in which at least one member

of the group resides, is not a religious institution[.]” Id. (alterations added).

Municipal ordinances, like all statutes, are subject to traditional rules of statutory

construction. See Artistic Ent., Inc. v. City of Warner Robins, 331 F.3d 1196, 1206 n.14 (11th Cir.

2003) (citations omitted). “A fundamental canon of statutory construction is that, unless otherwise

defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”

Perrin v. United States, 444 U.S. 37, 42 (1979) (citation omitted); see also Miami Beach, FL, Code

§ 114-2 (“Words and terms not defined in section 114-1 shall be interpreted in accord with their

normal dictionary meaning and customary usage.”). Nevertheless, “the words of a statute must be

read in their context and with a view to their place in the overall statutory scheme.” U.S. v. Crape,

603 F.3d 1237, 1243 (11th Cir. 2010) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803,

809 (1989)). And courts should generally “avoid statutory interpretations that produce

unreasonable or absurd results.” Silebi De Donado v. Swacina, 486 F. Supp. 2d 1360, 1364 (S.D.

Fla. 2007) (citing U.S. v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940)).

Under Defendant’s interpretation of the ordinance, Plaintiff is “by definition” a religious

institution. (Def.’s Mot. 4). Defendant points out that the common meaning of “establishment” is

a “business organization or place of business,” and an “organization” or “association” refers to “a

group of people working for a common purpose.” (Id. 4–5).2 According to Defendant, Plaintiff

is an “establishment, organization or association” because it is a corporation organized for the

2 See also Establishment, Merriam-Webster (last visited Apr. 28, 2023), https://www.merriam-

webster.com/dictionary/establishment (“a place of business or residence with its furnishings and staff; a

public or private institution”); Organization, Merriam-Webster (last visited Apr. 28, 2023),

https://www.merriam-webster.com/dictionary/organization (“association, society; an administrative and

functional structure (such as a business or a political party)”); Association, Merriam-Webster (last visited

Apr. 28, 2023), https://www.merriam-webster.com/dictionary/association (“an organization of persons

having a common interest”).

principal purpose of “synagogue communal house of worship[,]” and because Plaintiff consists of

“a group of people . . . who join together at the Property for the purpose of conducting prayer and

other religious activity.” (Id. 5 (alterations added)). Defendant argues that because Plaintiff meets

these elements, Plaintiff cannot avail itself of the private prayer exception, which is “reserved for

. . . a group privately assembling in a private home in which prayer activity is not conducted by an

establishment, organization, or association.” (Id. 8 (alteration added)). Further, Defendant states

that Plaintiff is using the Property as a religious institution because the record “amply

demonstrates” that Plaintiff conducts “religious prayer or activity” on the Property and this activity

“is either open to members of the Kerestir congregation or group if not the public as a whole.”

(Id. 5–6).

“Courts must generally defer to a municipality’s own interpretation of an ordinance, but

only if its interpretation is based on a permissible construction.” Miami Metro Media, LLC v. City

of Miami Gardens, No. 09-20201-Civ, 2010 WL 2634432, at *4 (S.D. Fla. June 30, 2010) (citing

Southlake Prop. Assocs., Ltd. v. City of Morrow, Ga., 112 F.3d 1114, 1119 (11th Cir. 1997)).

Defendant’s interpretation here is not “permissible,” and so the Court need not defer to it.

First, Defendant’s textual analysis is incomplete. The private prayer provision states that

“[a] group” may fall under the exception so long as it is engaged in private prayer and a member

of the group lives in the home. Miami Beach, FL, Code § 114-1 (alteration added). The word

“group” means “a number of individuals assembled together or having some unifying

relationship[,]” Group, Merriam-Webster (last visited Apr. 28, 2023), https://www.merriam-

webster.com/dictionary/group (alteration added), which is decidedly broader than a “business

organization or place of business” or “a group of people working for a common purpose” (Def.’s

Mot. 4–5). Following the plain meaning of these words, the term “group” includes

“establishment[s], organization[s] or association[s]” — each of which is a more specific type of

group — and such groups may fall under the exception to the Code so long as they meet the

exception’s other requirements. Miami Beach, FL, Code § 114-1. Moreover, because the words

“establishment, organization or association” have a more specific meaning than “group,” such an

interpretation does not result in surplusage that renders those three words meaningless, as

Defendant suggests. (See Def.’s Mot. 8).3

Second, Defendant’s interpretation produces absurd results. Following Defendant’s logic,

any group of people organized for a common purpose that conducts religious activity with

members of the group is acting as a religious institution and cannot avail itself of the private prayer

exception. (See id. 4–8; Def.’s Resp. 6–7). Under this interpretation, for example, a book club —

which is a group of people organized for the common purpose of reading and discussing books4

and therefore an “establishment, organization or association” — would be prohibited from

beginning a meeting in a residential home of one of its members with a prayer.

Such a broad prohibition on religious activity is likely unconstitutional. See generally

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (explaining that a law

whose object is to restrict religious activity is invalid unless justified by a compelling purpose and

narrowly tailored to advance that interest); cf. Tandon v. Newsom, 141 S. Ct. 1294, 1296–98 (2021)

(granting preliminary injunction against enforcement of COVID-based capacity restrictions on at-

home religious exercise). Indeed, even the City appears to acknowledge the Code cannot be read

3 The Court does not address Plaintiff’s statutory argument that a religious institution must be one of a

public character open to the public (see Pl.’s Mot. 6–9; Pl.’s Resp. 2–3), because Plaintiff bases its claims

on the theory that it has engaged in private prayer under the exception (see Am. Compl. ¶¶ 17, 39–41, 84).

It does not assert that it is not an “establishment, organization or association” under the City Code.

4 See Book Club, Merriam-Webster (last visited Apr. 28, 2023), https://www.merriam-

webster.com/dictionary/book%20club (“a group of people who meet regularly to discuss books they are

reading”).

so broadly; the City’s Planning Director, in his deposition, declined to say that the City Code

outright prohibits book clubs. (See Mooney Dep. 37:24–39:18 (stating that he would need to

consider “information pertaining to the club or organization” to decide, based on his

understanding, whether a particular book club was a “formal organization” under the Code)).

Defendant’s interpretation is impermissible. An “establishment, organization or

association” could indeed avail itself of the private prayer exception, and resolution of Defendant’s

counterclaim depends on whether Plaintiff has in fact done so. Accordingly, the plain text of the

City’s zoning ordinance does not support the grant of summary judgment in favor of Defendant

on its counterclaim.

B. Plaintiff’s Section 1983 Claims

Section 1983 “provides judicial remedies to a claimant who can prove that a person acting

under color of state law committed an act that deprived the claimant of some right, privilege, or

immunity protected by the Constitution or laws of the United States.” Hale v. Tallapoosa Cty., 50

F.3d 1579, 1582 (11th Cir. 1995) (citing 28 U.S.C. § 1983; footnote call number omitted). There

is no dispute that Defendant’s actions were undertaken under color of state law. (See generally

Def.’s Mot; Pl.’s Mot.). The two issues are whether Defendant violated Plaintiff’s constitutional

rights and whether it is liable for the acts of its employees as a matter of law. (See generally Def.’s

Mot; Pl.’s Mot.).

The Court addresses the parties’ arguments with respect to Plaintiff’s First Amendment

claims only. Plaintiff also asserts section 1983 claims under the Fourteenth Amendment in its

Amended Complaint (see Am. Compl. ¶¶ 102, 106–07 (stating claims for violation of substantive

due process and equal protection)) but abandons these claims in response to Defendant’s Motion

(see Def.’s Mot. 10–13; Pl.’s Resp. 10 n.9 (stating Plaintiff “is not pursuing a substantive due

process or a [sic] equal protection claim”)). The Court therefore grants summary judgment in

favor of Defendant with respect to Plaintiff’s Fourteenth Amendment claims. See Wallace v. Se.

Transfer & Storage Co., Inc., No. 1:19-cv-1117, 2021 WL 1061725, at *3 n.5 (N.D. Ga. Mar. 18,

2021) (“A party has an obligation to respond to an argument raised in a motion for summary

judgment, and issues not briefed are deemed abandoned.” (collecting cases)).

1. First Amendment

To establish a First Amendment retaliation claim, a plaintiff must show (1) it engaged in

constitutionally protected activity, (2) the defendant took adverse action that would deter a person

of ordinary firmness from the exercise of First Amendment rights, and (3) there is a causal

connection between the defendant’s adverse action and the plaintiff’s conduct. See Bennett v.

Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).

Private religious speech, such as that at issue in this case, is protected under the First

Amendment. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995)

(“Our precedent establishes that private religious speech, far from being a First Amendment

orphan, is as fully protected under the Free Speech Clause as secular private expression.” (citations

omitted)). But the “[g]overnment may regulate place and manner of religious expression as long

as there is no content classification and so long as the regulation is reasonable.” Grosz, 721 F.2d

at 740 (alteration added; citation omitted). Because Plaintiff does not contest the validity of the

City Code regulating the operation of religious institutions in the RS-4 residential district (see Oct.

6, 2022 Order 23–29 (dismissing Count III of the Amended Complaint); see also Am. Compl. ¶¶

17, 39–41, 84 (alleging it has engaged in private prayer in compliance with the City Code)),

whether Plaintiff can succeed on its First Amendment retaliation claim turns on whether it can

establish that it has engaged in protected speech in compliance with the City Code.

Defendant argues that from both a plain interpretation of the City Code and a review of the

facts, Plaintiff “is running a religious institution in violation of the City’s zoning laws” and

therefore not engaging in protected activity under the first prong of a First Amendment retaliation

claim. (Def.’s Mot. 9). Defendant also asserts that because its code enforcement activity was

“legitimate[,]” Plaintiff cannot establish the second and third elements. (Id. 10 (alteration added);

see id. 10–16). Plaintiff insists that the undisputed facts show it meets all three elements of its

claim. (See Pl.’s Mot. 5–15; Pl.’s Resp. 11–18).

As discussed, the Court disagrees with Defendant that the text of the City Code precludes

Plaintiff’s claim as a matter of law. Moreover, there are clearly genuine disputes of material fact

over whether Plaintiff has in fact complied with the City Code, whether Defendant’s conduct

constitutes adverse action to deter Plaintiff from engaging in protected speech, and whether there

is a causal connection between Defendant’s conduct and Plaintiff’s exercise of its First

Amendment rights. See Bennett, 423 F.3d at 1250 (listing the elements of a First Amendment

claim).

First, the parties dispute whether the facts — based on the case’s extensive record — show

Plaintiff is operating a synagogue at the Property or merely engaging in private prayer. (Compare

Hoffman Expert Report 9–10 (explaining that “Orthodox/Hasidic synagogues have certain

characteristics which . . . appear to be shared by the [P]roperty” (alterations added)) with Chernov

Rebuttal Report (outlining factors that suggest Plaintiff is not operating a synagogue)). They also

dispute whether religious activity on the Property is open to the “members and/or the general

public” of a religious institution or just friends and family of individuals residing on the Property.

Miami Beach, FL, Code § 114-1; (Compare Brechner Decl. ¶¶ 8–10 and Reich Dep. 134:8–135:9

and Goodfriend Dep. 103:22–105:9 with Mooney Decl. ¶ 32 and Reich Dep. 113:16–23).

Second, because the parties dispute whether a violation occurred at all, they necessarily

dispute whether the extent and nature of Defendant’s code enforcement procedures would deter a

person of ordinary firmness from the exercise of his or her First Amendment rights. (Compare

Pl.’s Mot. 13–15 with Def.’s Resp. 9–10). And third, both parties offer divergent factual accounts

of the motivation for the City’s code enforcement. (Compare Def.’s Mot. 15–21 with Pl.’s Resp.

13–18); see also Holley v. Seminole Cty. Sch. Dist., 755 F.2d 1492, 1505 (11th Cir. 1985)

(observing that “issues of motivation are generally improper for disposition on summary judgment

because without a searching inquiry into . . . motives, those intent on punishing the exercise of

constitutional rights could easily mask their behavior behind a complex web of post hoc

rationalizations” (alteration in original; quotation marks and citation omitted)). For example,

Defendant claims that its enforcement was legitimate and based on an objective lack of compliance

with the City Code. (See Def.’s SOF ¶¶ 46–66). By contrast, Plaintiff argues the City’s

enforcement was motivated by discriminatory intent, pointing to the lack of enforcement against

a nearby yoga studio. (See Pl.’s SOF 12 n.7; Pl.’s Reply 11 (noting that Defendant did not pursue

enforcement action against the yoga studio until Barry Brechner complained)).

Because resolution of Plaintiff’s First Amendment claim requires factfinding and

credibility determinations that must be left to a jury, summary judgment in favor of either party is

inappropriate. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is

not the court’s role to weigh conflicting evidence or to make credibility determinations[.]”

(alteration added; citations omitted)).

2. Monell Liability

Defendant argues that even if Plaintiff establishes a violation of its First Amendment rights,

the City cannot be held liable under Monell as a matter of law. (See Def.’s Mot. 21–24). Plaintiff

disagrees, arguing that the undisputed facts show Monell liability exists. (See Pl.’s Resp. 18–21).

A municipality may be liable under section 1983 when execution of its “policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury” at issue. Monell, 436 U.S. at 694. Relevant here, a policy or

custom may be established by “the existence of a widespread practice that, although not authorized

by written law or express municipal policy, is so permanent and well settled as to constitute a

‘custom or usage’ with the force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)

(quotation marks and citation omitted). Alternatively, a municipality may be liable “for a single

illegal act committed by one of its officers . . . . when the challenged act may fairly be said to

represent official policy, such as when that municipal officer possesses final policymaking

authority over the relevant subject matter.” Scala v. City of Winter Park, 116 F.3d 1396, 1397

(11th Cir. 1997) (alteration added).

Plaintiff first asserts the existence of a widespread policy or custom of harassment toward

Plaintiff. (See Pl.’s Mot. 16–18). Defendant asserts that “Plaintiff cannot establish that the City

has a widespread practice or custom of religious discrimination . . . [because] there is no record

evidence of any such purported unconstitutional discrimination against anyone else.” (Def.’s Mot.

22 (alterations added; citations omitted)). Defendant is incorrect. “[R]epeated, constitutional

failures with respect to one individual as well as a culture that permitted and condoned violations

of policies may be sufficient to withstand summary judgment on a Monell claim.” Lozman v. City

of Riviera Beach, 39 F. Supp. 3d 1392, 1408 (S.D. Fla. 2014) (alteration added; quotation marks

and citations omitted).

Nonetheless, there is a genuine dispute of material fact over whether Plaintiff can establish

such repeated, constitutional failures along with a culture that condoned them. (Compare Pl.’s

Mot. 15–18; Pl.’s Resp. 18–21 with Def.’s Mot. 16–23; Def.’s Resp. 11–13). On the one hand,

Plaintiff implicates the actions of no fewer than 15 officials, pointing to emails and evidence that

Plaintiff believes show a coordinated effort to target the Property through any means necessary.

(See Pl.’s Resp. 19–20; Pl.’s SOF ¶¶ 16–62). On the other hand, Defendant maintains that its code

enforcement actions were “isolated, legitimate enforcement actions arising from neighbor-driven

complaints” and thus do not constitute a policy adverse to Plaintiff. (Def.’s Resp. 18 (alteration

added); see also Def.’s SOF ¶¶ 46–66). As discussed, the extent and nature of Defendant’s code

enforcement requires fact and credibility determinations conducted by the trier of fact — the jury.

Alternatively, Plaintiff insists that regardless of whether the undisputed facts show a

widespread policy or custom, the City is still liable for the acts of its final policymakers. (See Pl.’s

Mot. 18–21). Defendant disagrees, arguing Plaintiff has failed to identify any final policymakers.

(See Def.’s Mot. 23–24; Def.’s Resp. 19–21; Def.’s Reply 11).

Whether an official possesses “final policymaking authority is a question of state law.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Final policymakers must be “responsible

for establishing final policy with respect to the subject matter in question” and must have taken “a

deliberate choice to follow a course of action . . . from among various alternatives[.]” Id.

(alterations added). Further, the Eleventh Circuit has “interpreted Monell’s policy or custom

requirement to preclude [section] 1983 municipal liability for a subordinate official’s decisions

when the final policymaker delegates decisionmaking discretion to the subordinate, but retains the

power to review the exercise of that discretion[.]” Scala, 116 F.3d at 1399 (alterations added;

citation omitted). Therefore, “a municipal official does not have final policymaking authority over

a particular subject matter when that official’s decisions are subject to meaningful administrative

review.” Id. at 1401 (citations omitted).

According to Plaintiff, at least six individuals directed the alleged harassment in their

capacity as final policymakers: Planning Director Thomas Mooney, Assistant City Manager Eric

Carpenter, Code Compliance Director Hernan Cardeno, Chief Deputy City Attorney Alek

Boksner, Deputy Assistant City Attorney Steven Rothstein, and the City’s Special Magistrate.

(See Pl.’s Mot. 18; Pl.’s Resp. 19). Plaintiff does not provide sufficient information for the Court

to determine the scope of authority of the first five actors; rather, it merely insists that the officials

“were acting in their final policymaking capacities”. (Pl.’s Mot. 18); see also Maschmeier v. Scott,

269 F. App’x 941, 944 n.4 (11th Cir. 2008) (“The final policymaker element must be proven as

part of the plaintiff’s case; it is not an affirmative defense to municipal liability under [section]

1983.” (alteration added; citation omitted)). Plaintiff says nothing, for example, about what

particular subject matter these actors purportedly have final authority over or whether their

decisions are subject to administrative review. (See Pl.’s Mot. 18; Pl.’s Resp. 19).

Defendant correctly points out that Plaintiff has not met its burden at the

summary-judgment stage to show these five officials have “authority or responsibility to establish

City policy” as final policymakers. (Def.’s Resp. 19–20 (emphasis in original)). But Defendant

also provides no information suggesting the five officials are not final policymakers while also

requesting summary judgment in its favor on the issue. (See Def.’s Mot. 24 (stating simply that

“[n]one of the [] actors involved in the Code enforcement actions . . . possess[] final authority so

as to establish municipal policy” (alterations added)); Def.’s Reply 11). The Court cannot grant

summary judgment based on “mere allegations” or conclusory statements by counsel; rather, the

party seeking summary judgment on an issue must advance “significant probative evidence” in

support of its position. Anderson, 477 U.S. at 248–49 (collecting cases); see also Bowden v. Wal-

Mart Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000) (noting “the opinions, allegations,

and conclusory statements of counsel do not substitute for evidence” (citation omitted)). Neither

party has met that burden here, and summary judgment as to whether the first five officials

identified by Plaintiff are final policymakers is not appropriate.

That leaves the sixth official identified by Plaintiff: the City’s Special Magistrate. Plaintiff

argues that the Special Magistrate is a final policymaker because, under the City’s authority to

establish administrative boards, he is “hired and paid for . . . by the City as its final authority or

ultimate repository in those matters which the City chooses, but is not required, to put before

him[.]” (Pl.’s Mot. 19 (alterations added)). Moreover, he issues “final administrative order[s]”

that, while reviewable in state court on a limited basis, are not subject to meaningful administrative

review by other City officials. (Id. 20 (alteration added; quotation marks and citations omitted)).

The Court already decided at the motion-to-dismiss stage that Plaintiff sufficiently alleged

the Special Magistrate was a plausible final policymaker. (See Oct. 6, 2023 Order 20–21).

Undeterred, Defendant renews its prior arguments that the Special Magistrate cannot be a final

policymaker because he performs a quasi-judicial function, and his decisions are subject to review

by the state court. (See Def.’s Mot. 23–24). Defendant’s renewed arguments do not preclude entry

of summary judgment on this issue.

First, the Court is not persuaded that an official who performs a quasi-judicial function

cannot be a final policymaker. Defendant begins by citing Boston v. Lafayette County for this

proposition (see id. 24); in that case, the court found a county’s Special Master was not a final

policymaker based on the Fifth Circuit’s “judicial function doctrine[,]” which states that “[w]hen

performing a judicial function by interpreting a state statute — which limits his discretion and is

not merely a standardless grant of authority — a judge acts to implement state policy rather than

create policy for the local government of which he is a part[,]” 743 F. Supp. 462, 470 (N.D. Miss.

1990) (alterations added; emphasis in original; citing Familias Unidas v. Briscoe, 619 F.2d 391,

404 (5th Cir. 1980); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir. 1985); other citations

omitted).

The doctrine in Boston, however, is primarily focused on distinguishing which duties of a

local judicial official can be attributed to the local government as opposed to the state government.

See Familias Unidas, 619 F.2d at 404; Carbalan, 760 F.2d at 665. This distinction matters because

state governments are immune from suit under section 1983; Monell liability does not attach when

the judicial official interprets a state statute and therefore speaks for the state government. See

Familias Unidas, 619 F.2d at 405. That is not the situation here, where the Special Magistrate

interprets and sets conditions in accordance with a local ordinance rather than a state statute. (See

generally Order on NOV (interpreting City Code)).

Defendant then cites Parker v. Town of Palm Beach, where the court found that because

the code enforcement board at issue was an adjudicatory body, it could not be considered a final

policymaker. (See Def.’s Resp. 21 (citing Parker v. Town of Palm Beach, No. 17-cv-80176, 2017

WL 11537901, at *3 (S.D. Fla. Aug. 16, 2017))). But the court in Parker cited no authority —

and the Court could find none — for this proposition. See 2017 WL 11537901, at *3. And its

conclusion is inconsistent with the suggestion in Praprotnik that a civil service commission, which

decided appeals of the city’s adverse appointing decisions and is thus presumably an adjudicatory

body, was the final policymaker. See 485 U.S. at 127. Therefore, the Court finds the reasoning in

Parker unpersuasive.

Second, Defendant’s insistence that the availability of state court review precludes finding

that the Special Magistrate is a final policymaker is irreconcilable with Monell. The Supreme

Court in Monell confirmed that Congress intended for municipalities and local governments to be

liable under section 1983 and set out a framework to determine which actions could be properly

attributed to such parties. See 436 U.S. at 690 (explaining that a local government can be sued if

it “executes a policy statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.” (emphasis added)). That is, the point is to determine what

acts the City is responsible for. See id.; see also Praprotnik, 485 U.S. at 124–27 (explaining

considerations relevant to determining what official or body “has the responsibility for making law

or setting policy in any given area of [a] local government’s business.” (alteration added; footnote

call number omitted)). Review by the state, which is a different government entity, is irrelevant

to that analysis. See Holloman ex. rel. Holloman v. Harland, 370 F.3d 1252, 1292 (11th Cir. 2004)

(“A member or employee of a governing body is a final policy maker only if his decisions have

legal effect without further action by the governing body . . . and if the governing body lacks the

power to reverse the member or employee’s decision[.]” (alterations added; citations omitted)).

In sum, the Special Magistrate has authority and discretion to interpret and apply conditions

for compliance with a local ordinance and his actions are not subject to meaningful administrative

review by other City officials. (See Pl.’s Mot. 19–21 (citing Fla. Stat. §§ 162.02–03 (authorizing

the creation of administrative boards); Miami Beach, FL, Code § 30-73 (defining powers of the

Special Magistrate, including “[i]ssu[ing] orders having the force of law commanding whatever

steps are necessary to bring a violation into compliance” (alterations added)))); see also Miami

Beach, FL, Code § 30-77 (authorizing circuit court appeals of Special Magistrate’s final

administrative orders). Plaintiff has thus met its burden to demonstrate that the Special Magistrate

is a final policymaker whose actions may subject the City to liability under section 1983 and the

Court grants summary judgment in favor of Plaintiff on that narrow issue. See Maschmeier, 269

F. App’x at 944 n.4; Pembaur, 475 U.S. at 483. But whether the Special Magistrate’s order finding

that Plaintiff’s use of the Property was not a “compatible accessory use of a residential property”

constituted a violation of Plaintiff’s First Amendment rights is a question of fact most

appropriately submitted to the jury. (Order on NOV 3); see Mize, 93 F.3d at 742.

C. Defendant’s Affirmative Defenses

Plaintiff requests partial summary judgment with respect to Defendant’s affirmative

defenses.5 (See Pl.’s Mot. 21 n.10); see Tingley Sys. v. Healthlink, Inc., 509 F. Supp. 2d 1209,

1218 (M.D. Fla. 2007) (“Partial summary judgment may properly be granted on affirmative

defenses.” (citation omitted)).

Plaintiff challenges Defendant’s Fourth and Fifth Affirmative Defenses raising

prosecutorial and judicial immunity. (See Pl.’s Mot. 22; Am. Answer 12). Defendant responds to

this issue only in passing. (See Def.’s Resp. 10 n.7 (“[T]here can be no adverse action based on

the prosecution or decision on the violation because those actions are subject to prosecutorial and

judicial immunity.” (alteration added; citation omitted)). In any case, because Plaintiff is suing

the City and implicates its employees only in their official rather than individual capacities,

5 The Court previously rejected Defendant’s First Affirmative Defense, asserting Plaintiff’s claims are

unripe or moot, and its Eighth Affirmative Defense, stating Plaintiff’s claim for injunctive relief is barred

under principles of separation of powers. (See Oct. 6, 2022 Order 10–16 (rejecting Defendant’s ripeness

and mootness challenges and explaining that federal courts have the power to grant injunctive relief from

state regulation when such regulation conflicts with federal statutes or the Constitution)). The Court sees

no reason to address these defenses once more.

summary judgment in favor of Plaintiff is appropriate as to these defenses. Cf. Kentucky v.

Graham, 473 U.S. 159, 167 (1985) (“The only immunities that can be claimed in an official-

capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as

the Eleventh Amendment.”).

Lastly, Defendant’s Second Affirmative Defense, raising the doctrine of unclean hands; its

Third Affirmative Defense, claiming the City cannot be liable under a theory of respondeat

superior; and its Sixth Affirmative Defense, denying any underlying constitutional violation, all

implicate issues already discussed: whether Plaintiff’s conduct complies with the City Code,

whether Monell liability is proper, and whether Plaintiff has met all the elements of its First

Amendment claim. (See Am. Answer 12–13). Consequently, summary judgment is inappropriate.

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Plaintiff Congregation 3401 Prairie Bais Yeshaya

D’Kerestir, Inc.’s Motion for Summary Judgment [ECF No. 127] is GRANTED in part and

DENIED in part. The Court finds that the City’s Special Magistrate is a final policymaker and

grants summary judgment in favor of Plaintiff with respect to Defendant’s Fourth and Fifth

Affirmative Defenses. Defendant City of Miami Beach’s Motion for Summary Judgment [ECF

No. 134] is GRANTED in part and DENIED in part. The Court grants summary judgment in

favor of Defendant with respect to Plaintiff’s Fourteenth Amendment claim. Summary judgment

is denied as to all other issues.

CASE NO. 22-21213-CIV-ALTONAGA/Torres

DONE AND ORDERED in Miami, Florida, this 10th day of May, 2023.

(occtn Ih. Bthuape.

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

cc: counsel of record

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