Safety Harbor Powersports, LLC v. City of Safety Harbor, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SAFETY HARBOR POWERSPORTS, LLC,

Plaintiff,

v. Case No. 8:23-cv-2399-VMC-UAM

CITY OF SAFETY HARBOR, FLORIDA,

PAUL BUSHEE, and MATT SPOOR,

Defendants.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendants City of Safety Harbor, Florida, Paul Bushee, and

Matt Spoor’s Motion to Dismiss (Doc. # 13), filed on October

30, 2023. Plaintiff Safety Harbor Powersports, LLC, filed a

response to the Motion on November 27, 2023. (Doc. # 23). For

the reasons set forth below, the Motion is granted.

I. Background

A. Plaintiff Safety Harbor Powersports, LLC

Plaintiff Safety Harbor Powersports, LLC “specializes in

the repair and maintenance of motorcycles, golf carts and

related motor vehicles.” (Doc. # 1-1 at ¶ 8). Plaintiff leases

a property for this business, encompassing both Suite A and

Suite B at 915 Harbor Lake Drive, Safety Harbor, Florida.

(Id.). “On or about March 4, 2019, the City Commission

approved a conditional use permit (‘CUP’) agreement” that

allows Plaintiff to sell motorcycles at Suite B and requires

that all motorcycles for sale be stored indoors at all times.

(Id. at ¶ 9). Plaintiff asserts that the CUP has “vague and

ambiguous wording” and that Defendants have failed to

recognize this fact. (Id. at ¶ 21).

B. Code Violations

After the CUP was issued, Plaintiff’s primary owner and

a Hillsborough County Sheriff’s Deputy, Adam Bergman, reached

out to Defendant Paul Bushee, a Community Compliance Officer

who “performs code enforcement duties” for the City of Safety

Harbor, to inform him that Precision Motorsports, a

neighboring business, was violating City codes. (Id. at ¶¶ 4,

10). Specifically, Bergman asserted that “Precision

Motorsports was failing to adhere to applicable parking

guidelines by allowing overflow parking in the streets,”

allowing employees and customers to park on Plaintiff’s

property, and displaying prohibited business signage. (Id. at

¶ 11). “Bushee and the City notified Precision Motorsports of

its code violations but failed to bring the business within

compliance of same[,] even after Bergman proactively insisted

that Bushee do so as violations continued.” (Id. at ¶ 13).

Additionally, once Bergman made these allegations, the

owner of Precision Motorsports, a prior business partner of

Bergman’s, “began making hollow and unsubstantiated

allegations to Bushee regarding Plaintiff.” (Id. at ¶ 12).

Around September 5, 2019, “Plaintiff received a Notice of

Violation from Bushee and the City’s Code Enforcement

division giving Plaintiff one day to get into compliance with

alleged violations of its CUP and the City’s land development

code ordinances violations.” (Id. at ¶ 14). These violations

were purportedly for “storing motorcycles that were for sale

outside and for using unpermitted signage in front of its

business.” (Id.). In response, Plaintiff removed the signage

and ensured that it did not display any vehicles for sale

outside the building. (Id. at ¶ 15).

C. Hearing About Code and CUP Violations

Plaintiff was subsequently informed that it “would have

to go before the City’s Code Enforcement Board (‘CEB’) for a

hearing on October 16, 2019,” based on allegations that it

was still violating the CUP and City Code. (Id. at ¶ 16). The

City, through Bushee, contended that Plaintiff was storing

vehicles for sale outside the building, was using Suite A for

sales in violation of City code, and that the prohibited

signage was still present. (Id. at ¶¶ 17-19). Plaintiff avers

that “[a]ny vehicles that were outside [the building] were

not for sale but were moved there so that Plaintiff had room

in Suite A to perform its repair work” and that all other

allegations were false. (Id.). At the hearing, Bushee

allegedly introduced outdated pictures of Plaintiff’s

property that falsely demonstrated that Plaintiff was not in

compliance with the code and his CUP. (Id. at ¶ 20).

The CEB determined that Plaintiff was not in compliance

with the City code. (Id. at ¶ 22). Plaintiff was fined $100

per day, starting on October 19, 2019, for displaying vehicles

outside. (Id.). However, the CEB did not share a “defined

plan for Plaintiff to be in compliance,” particularly given

Plaintiff’s understanding that it was already in compliance.

(Id.).

D. Precision Motorsports Hearing

Precision Motorsports was also scheduled for a hearing

before the CEB on October 16, 2019. (Id. ¶ 24). This date was

approximately five months after the company was put on notice

that it was in violation of the code. (Id.). During that time,

the code violations “were never addressed or rectified.”

(Id.).

The hearing on Precision Motorsports’s code violations

was cancelled six days before the scheduled date. (Id.). The

City asserted that “the hearing and case were cancelled

because the property Precision Motorsports was renting was

being sold and this was hindering the closing process.” (Id.

at ¶ 25). Plaintiff counters that this cannot be a valid

reason for cancelling the hearing because the rationale “is

in direct contravention of [a] Florida statute which states

that in the event that a sale happens prior to a hearing, the

new owner has the right to request a rescheduled hearing or

more time to fix any violations relating to the property.”

(Id.).

E. Post-Hearing Interactions

“[O]n or about October 18, 2019, Bushee, at Bergman’s

request, came to the Plaintiff’s business to discuss the

placement of vehicles outside during business hours due to

the vagueness and inaccurate facts and context that had been

inserted into the dispute.” (Id. at ¶ 27). During the meeting,

Bergman highlighted that a “large quantity of vehicles . . .

were in for repair,” and that this required Plaintiff to

temporarily move the vehicles outside to free up workspace

for the repair work. (Id. at ¶ 28). Bergman sought to clarify

how he could stage the vehicles outside so that they would

not violate the code or the CUP by appearing on display. (Id.

at ¶ 29). Bushee informed Bergman that the vehicles could

remain temporarily staged in the way they were outside Suite

B. (Id.). Bergman requested that Bushee provide this solution

in writing to avoid further confusion. (Id. at ¶ 30). During

the meeting, Bergman and Bushee also disagreed about

Plaintiff’s authority over the parking lots and exterior

grounds of the property and whether the southeast corner of

the parking lot was a legal traffic throughway. (Id. at ¶

31).

Later during the meeting, Bushee noticed a customer’s

vehicle stored within the south end of the building. (Id. at

¶ 32). He asked whether the vehicle was for sale. (Id.).

Bergman responded that, while “given the right price most

things are for sale,” the vehicle was not placed at that

location for sale. (Id.). Bushee then contended that the

vehicle was for sale because it did not appear to be in for

repairs and had an expired tag. (Id.). He requested that

Bergman provide him with information about the owner and the

repair work being done on the vehicle. (Id.). Bergman refused

to provide this information, as he believed that Bushee did

not have authority to request this information and because

the information is protected under Chapter 119 of the Florida

Statutes. (Id. at ¶ 33). Based on Bergman’s refusal, Bushee

implied that Plaintiff would be subject to additional fines

for violating City code by displaying a vehicle for sale

outside. (Id.).

Later, around October 23, 2019, Bushee provided

Plaintiff with some materials about the code limitations on

the parking area. (Id. at ¶ 34). However, he still did not

provide the requested written statement about allowing cars

to be parked outside on the property. (Id.).

After this date, Plaintiff firmly believed that “Bushee

and certain City officials, including City Manager Spoor,

[were] engaging in a conspiracy to target, harass, intimidate

and discriminate against Plaintiff [through] selective

enforcement of City codes.” (Id. at ¶ 35).

In April 2021, “other neighboring businesses, without

any type of CUP or exception to the applicable code[,] have,

without any opposition from the City, been allowed to sell

and rent new golf carts/vehicles from the premises in

contravention of City code.” (Id. at ¶ 36). Bergman has raised

this fact to Bushee multiple times. (Id.). Bushee has

responded that the businesses had been notified and brought

into compliance; however, Bergman provided additional

information that the businesses were not actually in

compliance. (Id.).

Plaintiff asserts that the City has since increased its

campaign against it. (Id. at ¶ 37). “On a number of occasions

Bushee and other City officials, including the City Manager

[] Spoor, have been seen spying on Plaintiff and its customers

in an effort, as stated above, to ‘catch’ Plaintiff in a code

violation - even when no complaint of a code violation has

occurred.” (Id.). For example, Bergman sent Bushee an email

around June 9, 2021, informing him that he had seen Bushee

“surreptitiously taking photos of golf carts on the

property’s parking lot” and seeking to inform Bushee that

these carts were being repaired and had been placed in that

location at the recommendation of the Sheriff’s office. (Id.

at ¶ 38). Bushee responded by claiming that Plaintiff was

violating the same ordinances as before by parking golf carts

outside and threatening to refer Plaintiff to the CEB as a

repeat offender. (Id. at ¶ 39).

“After over a year of trying to seek a resolution with

the City over alleged code violations Plaintiff was able to

obtain documentation of Bushee admitting that the Property

was not subject to the code of ordinances that he was trying

to enforce and that reflect lies that he has told in front of

the CEB and otherwise.” (Id. at ¶ 40).

F. Procedural History

Plaintiff filed suit against Defendants in state court

on September 4, 2023. (Doc. # 1-1). Defendants removed the

case to this Court on October 23, 2024. (Doc. # 1).

Plaintiff’s complaint alleges six claims. (Doc. # 1-1).

Count I alleges that the City violated its rights to equal

protection of the law guaranteed by the Fourteenth Amendment.

(Id. at ¶¶ 47-50). Count II alleges that the City also

violated Plaintiff’s procedural due process rights. (Id. at

¶¶ 51-56). Count III alleges that the City was negligent

because it breached its duty “to ensure that its code

enforcement[] efforts and policies were performed in an

unbiased and professional manner.” (Id. at ¶¶ 57-60). Count

IV alleges civil conspiracy by Defendants Bushee and Spoor.

(Id. at ¶¶ 61-64). Count V requests a permanent injunction

against all Defendants. (Id. at ¶¶ 65-73). Count VI alleges

tortious interference by the City and Bushee. (Id. at ¶¶ 74-

79).

On October 30, 2023, the City, Bushee, and Spoor moved

to dismiss the complaint. (Doc. # 13). Plaintiff responded on

November 27, 2023. (Doc. # 23). The Motion is now ripe for

review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint

and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, the Court favors the plaintiff

with all reasonable inferences from the allegations in the

complaint. Stephens v. Dep’t of Health & Human Servs., 901

F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its

consideration to well-pleaded factual allegations, documents

central to or referenced in the complaint, and matters

judicially noticed. La Grasta v. First Union Sec., Inc., 358

F.3d 840, 845 (11th Cir. 2004).

III. Analysis

A. Count I: Equal Protection Clause

Defendants argue that the Court should dismiss Count I

of the complaint for violation of the Equal Protection Clause

of the Fourteenth Amendment by the City. (Doc. # 13 at 5-8).

Plaintiff alleges that the City violated the Equal

Protection Clause of the Fourteenth Amendment by, “acting

under the color of state law, engag[ing] in an intentional

and overt pattern of selectively enforcing codes of

ordinances against Plaintiff such that it was treated

differently from other similarly situated businesses and/or

entities who were not subjected to the enforcement of code

violations for the same alleged offenses.” (Doc. # 1-1 at ¶

48). In doing so, the City allegedly “unequally applied

facially neutral ordinances against Plaintiff for the purpose

of intentionally discriminating against Plaintiff.” (Id. at

¶ 49).

While Plaintiff does not provide much detail in the count

itself, the factual background clarifies that Plaintiff

particularly believes that it was treated differently than

its competitor, Precision Motorsports. According to the

complaint, Precision Motorsports was allegedly violating City

codes by “failing to adhere to applicable parking guidelines

by allowing overflow parking in the streets,” allowing

employees and customers to park on Plaintiff’s property, and

displaying prohibited business signage. (Id. at ¶ 10-11).

Plaintiff also highlights that its owner shared evidence of

code violations by other businesses with Bushee and that none

of these businesses were ever cited for the violations because

Bushee asserted that they had come into compliance. (Id. at

¶ 36). Plaintiff does not identify these other businesses by

name.

The Equal Protection Clause of the Fourteenth Amendment

provides that “[n]o State shall . . . deny to any person

within its jurisdiction the equal protection of laws.” U.S.

Const. amend. XIV, § 1. This clause establishes that “[t]he

sovereign may not draw distinctions between individuals based

solely on differences that are irrelevant to a legitimate

governmental objective.” Lehr v. Robertson, 463 U.S. 248, 265

(1983) (citing Reed v. Reed, 404 U.S. 71, 76 (1971)).

“[A] ‘class of one’ claim involves a plaintiff who

‘alleges that she has been intentionally treated differently

from others similarly situated and that there is no rational

basis for the difference in treatment.’” Griffin Indus., Inc.

v. Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007) (quoting Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).

Accordingly, “[t]o prove a ‘class of one’ claim, the plaintiff

must show (1) that he was treated differently from other

similarly situated individuals, and (2) that the defendant

unequally applied a facially neutral ordinance for the

purpose of discriminating against him.” Leib v. Hillsborough

Cnty. Public Transp. Comm’n, 558 F.3d 1301, 1307 (11th Cir.

2009) (citing Young Apartments, Inc. v. Town of Jupiter, 529

F.3d 1027, 1045 (11th Cir. 2008)). Defendants assert that

Plaintiff has not sufficiently pled either prong of this test.

(Doc. # 13 at 6).

“With respect to the first prong, [the Eleventh Circuit

has] frequently noted that the ‘similarly situated’

requirement must be rigorously applied in the context of

‘class of one’ claims.” Leib, 558 F.3d at 1307. “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.

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.”

Griffin Indus., Inc., 496 F.3d at 1203.

“To be ‘similarly situated,’ the comparators must be

prima facie identical in all relevant respects.” Grider v.

City of Auburn, 618 F.3d 1240, 1264 (11th Cir. 2010) (quoting

Griffin Indus., Inc., 496 F.3d at 1204) (internal quotation

marks omitted). “Governmental decisionmaking challenged under

a ‘class of one’ equal protection theory must be evaluated in

light of the full variety of factors that an objectively

reasonable governmental decisionmaker would have found

relevant in making the challenged decision.” Griffin Indus.,

Inc., 496 F.3d at 1203. “Accordingly, when dissimilar

governmental treatment is not the product of a one-

dimensional decision . . . the ‘similarly situated’

requirement will be more difficult to establish.” Id. at 1203-

04.

Here, the Court agrees with Defendants that Plaintiff

has not sufficiently pled a similarly situated comparator. As

an initial matter, courts within the Eleventh Circuit have

generally required plaintiffs to identify a similarly

situated comparator with some degree of specificity when

asserting a class-of-one claim. See, e.g., Zuniga v. City of

Groveland, No. 5:23-cv-351-PRL, 2023 WL 5573962, at *5 (M.D.

Fla. Aug. 29, 2023) (concluding that “Plaintiffs’ speculative

and vague allegations that they were treated differently from

other unspecified parties fails to state an equal protection

claim”); Leib, 558 F.3d at 1307 (“Given the complaint’s

complete lack of factual detail regarding the ‘similarly

situated’ requirement, Leib’s ‘class of one’ claim was

properly dismissed.”). Accordingly, the unidentified

businesses mentioned in Plaintiff’s allegations (Doc. # 1-1

at ¶ 36) cannot qualify as similarly situated comparators.

The only comparator identified by name in the complaint

is Precision Motorsports. While Plaintiff describes several

similarities between itself and Precision Motorsports,

including that Precision Motorsports’s rental property is

close to Plaintiff’s and that Precision Motorsports was

similarly notified of code violations (Id. at ¶¶ 8, 10, 13-

14, 16, 24), Plaintiff’s complaint does not include

sufficient information to plausibly state that Precision

Motorsports is a similarly situated comparator. Importantly,

as Defendants highlight, Plaintiff does not allege that

Precision Motorsports faced the same code violations as

Plaintiff. (Doc. # 13 at 6); see Palm Beach Polo, Inc. v.

Vill. of Wellington, No. 19-80435-CIV-DIMITROULEAS, 2021 WL

2499008, at *6 (S.D. Fla. May 14, 2021) (“In the context of

a claim of unequal code enforcement, one of the relevant

aspects most certainly would be the code that was being

enforced.”); Griffin Indus., Inc., 496 F.3d at 1205 (“A ‘class

of one’ plaintiff might fail to state a claim by omitting key

factual details in alleging that it is ‘similarly situated’

to another.”). Plaintiff states that Precision Motorsports

did not adhere to parking guidelines and restrictions on

business signage. (Doc. # 1-1 at ¶ 11). These violations

appear similar to the conduct for which Plaintiff was cited

– parking violations and improper signage. (Id. at ¶ 14).

However, Plaintiff must include additional information to

show that the code violations with which Precision

Motorsports was charged were similar to those with which

Plaintiff was charged in order to plausibly state that

Precision Motorsports is a similarly situated comparator.

Defendants also assert that the impending sale of the

property that Precision Motorsports was renting makes

enforcement of the business’s code violations materially

different. (Doc. # 13 at 7). At this stage, the Court is not

convinced. Plaintiff asserts that a Florida Statute allows a

new owner of a property to reschedule a hearing on code

violations and that, therefore, the property sale cannot be

a valid reason for cancelling the hearing on Precision

Motorsports’s code violations. (Doc. # 1-1 at ¶ 25; Doc. # 23

at 6-7). If the businesses were charged with similar code

violations and the sale of the property falls outside the

range of factors that City could consider when deciding

whether to enforce the code against violators, Precision

Motorsports could qualify as a similarly situated comparator.

See Griffin Indus., Inc., 496 F.3d at 1203 (“Governmental

decisionmaking challenged under a ‘class of one’ equal

protection theory must be evaluated in light of the full

variety of factors that an objectively reasonable

governmental decisionmaker would have found relevant in

making the challenged decision.”).

In short, Plaintiff has not plausibly alleged that

Precision Motorsports is similarly situated. Accordingly, the

Court dismisses Count I.

B. Count II: Procedural Due Process

Defendants next seek to dismiss Count II — for violation

of Plaintiff’s procedural due process rights by the City —

for failure to plead unavailability of state remedies to cure

any procedural due process violation that occurred. (Doc. #

13 at 8-10). Furthermore, Defendants assert that Plaintiff

cannot plead this fact because such state remedies exist and

Plaintiff participated in them. (Id.).

“[A Section] 1983 claim alleging a denial of procedural

due process requires proof of three elements: (1) a

deprivation of a constitutionally-protected liberty or

property interest; (2) state action; and (3)

constitutionally-inadequate process.” Grayden v. Rhodes, 345

F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine,

24 F.3d 175, 177 (11th Cir. 1994)), abrogated on other grounds

by Pearson v. Callahan, 555 U.S. 223 (2009). Due process

generally requires notice and a chance to be heard. Cryder,

24 F.3d at 177 (citing Mathews v. Eldridge, 424 U.S. 319, 333

(1976)). However, “due process is a flexible concept that

varies with the particular situation.” Id.

Additionally, “procedural due process violations do not

even exist unless no adequate state remedies are available.”

Cotton v. Jackson, 216 F.3d 1328, 1331 n.2 (11th Cir. 2000);

see McKinney v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994)

(“[E]ven if McKinney suffered a procedural deprivation at the

hands of a biased Board at his termination hearing, he has

not suffered a violation of his procedural due process rights

unless and until the State of Florida refuses to make

available a means to remedy the deprivation.”). “A plaintiff

must allege the unavailability of state remedies in the

complaint.” Conley v. City of Dunedin, No. 8:08-cv-1793-SCB-

MAP, 2009 WL 812061, at *4 (M.D. Fla. Mar. 25, 2009). Even

so, the central issue “is not whether Plaintiff[] actually

availed [itself] of Florida’s . . . remedies, but whether

Florida would offer such remedies if it were asked.” Id. at

*5.

In the complaint, Plaintiff states that it received

notice of a violation and subsequently attended a hearing

before the CEB. (Doc. # 1-1 at ¶¶ 14, 16-22). However,

Plaintiff does not mention any process for appealing the CEB’s

determination. In its response to Defendants’ motion to

dismiss, Plaintiff asserts that “there is no appellate remedy

in the code enforcement realm for subjecting Plaintiff to a

disparate code enforcement process that resulted from

improper motives.” (Doc. # 23 at 8).

In contrast, Defendants highlight that “[t]he state of

Florida allows aggrieved parties to appeal ‘final

administrative orders of an enforcement board to the circuit

court.’” Conley v. City of Dunedin, 2009 WL 812061, at *5

(quoting Fla. Stat. § 162.11). Because this appeal process

considers both the record underlying the initial decision and

the constitutionality of the proceedings, Florida “provides

a remedy for deprivations of procedural due process resulting

from a code enforcement order.” Id.

Accordingly, it appears that Plaintiff could have

appealed the decision of the CEB to the Florida circuit court

and raised the argument that the City’s alleged improper

motives rendered the CEB decision unconstitutional. “Because

[Plaintiff’s] complaint fails to allege that this available

remedy [existed and] was inadequate, [it] fail[s] to properly

state a federal procedural due process claim” under Section

1983. Id. Accordingly, Count II is dismissed.

C. Count III: Negligence

Defendants also seek to dismiss Count III for negligence

by the City, asserting that the City’s enforcement of its

code is a discretionary function that does not carry a duty

of care. (Doc. # 13 at 10-12).

To state a claim for negligence, a plaintiff must plead

four elements: “(1) a duty to the plaintiff; (2) the

defendant’s breach of that duty; (3) injury to the plaintiff

arising from the defendant’s breach; and (4) damage caused by

the injury to the plaintiff as a result of the defendant’s

breach of duty.” Delgado v. Laundromax, Inc., 65 So. 3d 1087,

1089 (Fla. 3d DCA 2011) (citing Westchester Exxon v. Valdes,

524 So. 2d 452, 454 (Fla. 3d DCA 1988)).

However, the analysis changes when the defendant is a

government entity. Under the Florida Constitution and Florida

Statute Section 768.28(1), “[t]he State of Florida has waived

sovereign immunity from liability in tort actions ‘for any

act for which a private person under similar circumstances

would be held liable.’” Pollock v. Fla. Dept. of Highway

Patrol, 882 So. 2d 928, 932 (Fla. 2004) (quoting Henderson v.

Bowden, 737 So. 2d 532, 534-35 (Fla. 1999)); Fla. Const. art.

X, § 13; Fla. Stat. § 768.28(1). This waiver of sovereign

immunity also applies to subdivisions of the State of Florida.

See Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468

So. 2d 912, 919-21 (Fla. 1985) (including cities in its

analysis of state sovereign immunity). “Thus, ‘[t]here can be

no governmental liability unless a common law or statutory

duty of care existed that would have been applicable to an

individual under similar circumstances.’” Pollock, 882 So. 2d

at 932 (quoting Henderson, 737 So. 2d at 535).

To clarify governmental tort liability, the Florida

Supreme Court has divided “governmental functions and

activities” into four categories: “(I) legislative,

permitting, licensing, and executive officer functions; (II)

enforcement of laws and the protection of the public safety;

(III) capital improvements and property control operations;

and (IV) providing professional, educational, and general

services for the health and welfare of the citizens.” Trianon

Park Condo. Ass’n, Inc., 468 So. 2d at 919. Category II, for

enforcement of laws and the protection of the public safety,

encompasses “[h]ow a governmental entity, through its

officials and employees, exercises its discretionary power to

enforce compliance with the laws duty enacted by a

governmental body.” Id. No duty of care exists as to these

functions and activities. Id.

Additionally, “[s]tatutes and regulations enacted under

the police power to protect the public and enhance the public

safety do not create duties owed by the government to citizens

as individuals without the specific legislative intent to do

so.” Id. at 922.

Florida courts have stated that a city cannot “be held

liable for an injury to an individual upon an allegation that

the city failed properly to enforce a city ordinance.” Shoner

v. Concord Fla., Inc., 307 So. 2d 505, 505 (Fla. 3d DCA 1975).

While limited caselaw is available regarding whether a

plaintiff can bring a negligence claim against a governmental

entity for violations of the city land development code,

courts within the Eleventh Circuit have determined that no

duty of care exists as to enforcement of other types of city

codes. See, e.g., Dan Van Tran v. City of Miami, No. 05-

21206-CIV-JORDAN, 2006 WL 8447801, at *7 (S.D. Fla. July 27,

2006) (finding no duty of care related to the city’s

enforcement of its building code provisions). Additionally,

Plaintiff does not allege that the provision of the City code

under which it was cited created a duty owed by the

government.

Plaintiff asserts that this case is distinguishable from

other cases declining to impose a duty of care for enforcement

of city codes because “the code enforcement officer chose to

actively target Plaintiff for nefarious reasons and went

beyond his normal and anticipated duties.” (Doc. # 23 at 10).

Plaintiff asserts that Bushee placed Plaintiff in a “zone of

risk” and thus assumed a special tort duty as a law

enforcement officer. (Id. at 11); see Smith v. Campbell, 295

F. App’x 314, 317 (11th Cir. 2008) (“Florida courts have

established that when government officials undertake some

risky behavior, they owe a duty to those individuals who could

potentially be harmed by this behavior (those within the

‘foreseeable zone of risk’) to take reasonable precautions

just as an ordinary non-government citizen would owe.”).

The Court is unconvinced. Even assuming that Bushee

could create a zone of risk by causing or otherwise

incentivizing code violations on Plaintiff’s property,

Plaintiff has not alleged that Bushee did so. Instead,

Plaintiff asserts that the City failed to ensure that

Plaintiff was treated in an unbiased and professional manner.

(Doc. # 1-1 at ¶ 59). This does not suffice.

Accordingly, Count III is dismissed.

D. Count IV: Civil Conspiracy

Defendants also argue that Count IV for civil conspiracy

by Defendants Bushee and Spoor should be dismissed. (Doc. #

13 at 12-14). Plaintiff asserts that “Bushee and Spoor, along

with other City officials, . . . conspire[d], arrange[d] and

act[ed] in concert to subject the Plaintiff to a pattern of

selective enforcement of various City codes.” (Doc. # 1-1 at

¶ 62).

As an initial matter, Plaintiff’s complaint is unclear

whether it asserts civil conspiracy under Section 1983 or

under Florida law.

If alleging a claim under Section 1983, Plaintiff’s

claim must fail due to the intracorporate conspiracy

doctrine. “Under the intracorporate conspiracy doctrine, a

corporation’s employees cannot conspire among themselves when

acting in the scope of their employment, as their actions are

attributed to the corporation itself . . . .” Detris v. Coats,

523 F. App’x 612, 615 (11th Cir. 2013) (citation omitted).

“The doctrine applies to public entities such as the City and

its personnel.” Denney v. City of Albany, 247 F.3d 1172, 1190

(11th Cir. 2001). In the complaint, Plaintiff asserts that

Bushee and Spoor conspired with other City officials. (Doc.

# 1-1 at ¶ 62). Plaintiff does not assert that any individuals

outside the City government were involved. Additionally, it

appears that Bushee and Spoor were acting in the scope of

their employment. “The scope-of-employment inquiry is whether

the employee . . . was performing a function that, but for

the alleged constitutional infirmity, was within the ambit of

the officer’s scope of authority (i.e., job-related duties)

and in furtherance of the employer’s business.” Grider, 618

F.3d at 1261. Plaintiff’s claim focuses entirely on Bushee

and Spoor’s enforcement of the City code. (Doc. # 1-1 at ¶

62). Accordingly, but for any constitutional infirmity, their

actions fall within Defendants’ roles as Community Compliance

Officer and City Manager, respectively. (Id. at ¶¶ 4-5).

Plaintiff’s claim, as pled, also does not state a claim

under Florida law. “To state a claim for civil conspiracy

under Florida law, a plaintiff must allege: ‘(a) an agreement

between two or more parties, (b) to do an unlawful act or to

do a lawful act by unlawful means, (c) the doing of some overt

act in pursuance of the conspiracy, and (d) damage to

plaintiff as a result of the acts done under the conspiracy.’”

Corbett v. Transp. Sec. Admin., 968 F. Supp. 2d 1171, 1190

(S.D. Fla. 2012) (quoting United Techs. Corp. v. Mazer, 556

F.3d 1260, 1271 (11th Cir. 2009)), aff’d, 568 F. App’x 690

(11th Cir. 2014). “[O]rdinarily[,] there can be no

independent tort for conspiracy. However, if the plaintiff

can show some peculiar power of coercion possessed by the

conspirators by virtue of their combination, which power an

individual would not possess, then conspiracy itself becomes

an independent tort.” Churruca v. Miami Jai-Alai, Inc., 353

So. 2d 547, 550 (Fla. 1977). “The essential elements of this

tort are a malicious motive and coercion through numbers or

economic influence.” Id.

Plaintiff asserts that Bushee and Spoor committed the

underlying tort of negligence (Count III) and that they showed

a peculiar power of coercion such that civil conspiracy should

qualify as an independent tort committed by these defendants.

(Doc. # 23 at 12). As discussed above, Plaintiff has not

sufficiently alleged its negligence claim.

Further, Plaintiff has not plausibly alleged that Bushee

and Spoor held a peculiar power of coercion. “The typical

case for the ‘peculiar power’ exception . . . is the case of

a group boycott to ‘blacklist’ someone from a given industry.”

Hvide v. Hold Fin. Ltd., No. 20-22266-CIV-CANNON/Otazo-Reyes,

2021 WL 8154846, at *10 (S.D. Fla. Sept. 13, 2021). “Outside

of this and related or similar fields, instances of conspiracy

which is in itself an independent tort are rare and should be

added to with caution.” Id. (quoting Liappas v. Augoustis, 47

So. 2d 582, 583 (Fla. 1950)). “More generally, courts have

described the exception as a narrow exception that applies

only if the ‘conduct complained of would not be actionable if

done by one person, but by reason of force of numbers or other

exceptional circumstances, the defendants possess some

peculiar power of coercion.’” Id. (quoting Kee v. Nat’l Rsrv.

Life Ins. Co., 918 F.2d 1538, 1542 (11th Cir. 1990)).

Plaintiff asserts that this peculiar power of coercion

existed because the City officials worked together to spy on

Plaintiff to catch him in a code violation, even when no

complaint had occurred. (Doc. # 23 at 12). However, even if

there was an agreement between Bushee and Spoor to try to

catch Plaintiff committing code violations, Plaintiff does

not plausibly allege that Defendants could not have achieved

the same results acting alone. See Santillana v. Fla. State

Court Sys., No. 6:09-cv-2095-PCF-KRS, 2010 WL 271433, at *14

(M.D. Fla. Jan. 15, 2010) (“Santillana also fails to state a

claim of civil conspiracy under the ‘force of numbers’

exception because the Court cannot conclude from the alleged

facts that she could not have been terminated by one of the

alleged conspirators acting alone.”). Count IV is dismissed.

E. Count V: Permanent Injunction

Defendants argue that Plaintiff’s standalone request for

a permanent injunction should also be dismissed. (Doc. # 13

at 14-15). “[A]n injunction is not a cause of action but a

remedy.” Pierson v. Orlando Reg’l Healthcare Sys., Inc., 619

F. Supp. 2d 1260, 1288 (M.D. Fla. Apr. 28, 2009). Plaintiff

concedes that it cannot seek injunctive relief as an

independent cause of action. (Doc. # 23 at 13). Therefore,

the Court dismisses Count V. If warranted, Plaintiff may seek

injunctive relief as a remedy for other counts alleged in the

amended complaint.

F. Count VI: Tortious Interference

Finally, Defendants argue that Plaintiff’s claim for

tortious interference against Defendants Bushee and the City

must be dismissed. (Doc. # 13 at 15-17). Plaintiff asserts

that these Defendants interfered with Plaintiff’s business

relationship with the owners of two boats for which Plaintiff

was set to complete repair work. (Doc. # 1-1 at ¶¶ 76-77).

The City and Bushee allegedly interfered with these

relationships by issuing a violation against Plaintiff that

required it to have the boats removed by the owners. (Id. at

¶ 77). No formal complaint existed to prompt the issuance of

the violation and Plaintiff never performed the repair work

on the boats. (Id. at ¶¶ 78-79).

To plead tortious interference with a business

relationship under Florida law, a plaintiff must allege “(1)

the existence of a business relationship[;] . . . (2)

knowledge of the relationship on the part of the defendant;

(3) an intentional and unjustified interference with the

relationship by the defendant; and (4) damage to the plaintiff

as a result of the breach of the relationship.” Whetstone

Indus. Inc. v. Yowie Grp. Ltd., No. 3:17-cv-HES-PDB, 2019 WL

13177819, at *2 (M.D. Fla. Aug. 15, 2019) (quoting Ethan

Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814

(Fla. 1994)).

Importantly, “[a]n officer, employee, or agent of the

state [of Florida] or of any of its subdivisions may not be

held personally liable in tort or named as a party defendant

in any action for any injury or damage suffered as a result

of any act, event, or omission of action in the scope of her

or his employment or function, unless such officer, employee,

or agent acted in bad faith or with malicious purpose or in

a manner exhibiting wanton and willful disregard of human

rights, safety, or property.” Fla. Stat. § 768.28(9)(a).

Defendants assert that Plaintiff insufficiently alleges

knowledge of and intentional and unjustified interference

with the business relationships at issue in the claim. (Doc.

# 13 at 15-17). Additionally, Defendants argue that Plaintiff

has not pled “even conclusory allegations that Bushee acted

outside the course and scope of his employment or in bad

faith,” and thus the claim must be dismissed as to Bushee.

(Id. at 17).

The Court agrees that Plaintiff has not sufficiently

pled the elements of tortious interference. Even assuming

that Defendants were aware of the business relationships

given the location of the boats on Plaintiff’s property,

Plaintiff has not plausibly alleged that Defendants

interfered with the relationships in an unjustified way. As

Defendants highlight, Plaintiff’s only allegation within the

count that Bushee’s actions were unjustified is that no formal

complaint existed at the time of the actions. (Id.). Based on

this information, it is not clear to the Court whether a

formal complaint is a necessary precondition for Bushee to

issue a violation and, thus, whether Bushee’s actions were

unjustified. Bushee is a Community Compliance Office for the

City. (Doc. # 1-1 at 4). As such, the violation that underlies

this claim appears within the scope of Bushee’s authority.

Additional information is necessary for Plaintiff to

plausibly allege that Bushee’s actions were unjustified.

The lack of information supporting whether Bushee’s

actions were unjustified also ties into Plaintiff’s failure

to sufficiently allege whether Bushee may be held personally

liable for any tortious interference. Pursuant to Florida

law, Bushee can only be held personally liable in tort “as a

result of any act, event, or omission of action in the scope

of . . . his employment or function” if he “acted in bad faith

or with malicious purpose or in a manner exhibiting wanton

and willful disregard of human rights, safety, or property.”

Fla. Stat. § 768.28(9)(a). Throughout the complaint,

Plaintiff includes several allegations that Bushee

specifically targeted Plaintiff. However, Plaintiff does not

include any allegations that, when issuing this violation,

Bushee acted outside the scope of his employment, in bad

faith, or in another way that would subject him to personal

liability. As such, Plaintiff has not made allegations that

plausibly state a claim against Bushee.

Therefore, Count VI is dismissed.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendants City of Safety Harbor, Florida, Paul Bushee,

and Matt Spoor’s Motion to Dismiss (Doc. # 13), is

GRANTED.

(2) The complaint is DISMISSED with leave to amend.

(3) Plaintiff Safety Harbor Powersports, LLC may file an

amended complaint within 14 days from the date of this

Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

12th day of July, 2024.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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