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

> District Court, M.D. Florida · July 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10642369

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642369. Public record. Not legal advice.