Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JESSE LEE,

Plaintiff,

v. Case No. 8:23-cv-2996-VMC-AEP

CITY OF GULFPORT and

JAMES O’REILLY,

Defendants.

/

ORDER

This matter is before the Court on consideration of

Plaintiff Jesse Lee’s Amended/Corrected Motion for Partial

Summary Judgment (Doc. # 108), Defendant James O’Reilly’s

Motion for Summary Judgment (Doc. # 88), and Defendant City

of Gulfport’s Motion for Summary Judgment (Doc. # 89) and

Motion to Strike Exhibits to, and New Arguments in,

Plaintiff’s Reply to City’s Response to His Motion for Partial

Summary Judgment (Doc. # 109). For the reasons that follow,

Defendants’ Motions for Summary Judgment are granted, and Mr.

Lee’s Motion is denied. Gulfport’s Motion to Strike is granted

to the extent the Court strikes Mr. Lee’s new argument

regarding the substantive due process challenge to Gulfport’s

trespass policy. Counts II, IX, and XII are dismissed for

lack of standing. Summary judgment is granted in favor of

Defendants on Counts I, III, IV, V, VI, and VII. The only

remaining counts are Counts X and XI, which seek declaratory

and injunctive relief.

I. Background:

A. The Parties

Mr. Lee moved to Gulfport in October 2018. (Doc. # 89 at

2 ¶ 2). Shortly thereafter, he decided he wanted to operate

an ice cream cart. (Doc. # 89-2 at 26:5-20). Accordingly, Mr.

Lee purchased “a cooler that attaches to a two-wheeled stand,

as well as an umbrella, for his ice-cream business.” (Doc. #

89 at 2 ¶ 4; Doc. # 89-2 at 32:11-33:16, 198-99). Mr. Lee

intended to sell pre-packaged ice cream from his cart. (Doc.

# 89-2 at 189:12-15).

In early 2019, Mr. Lee had two meetings with Mr.

O’Reilly, the City Manager of Gulfport, regarding Gulfport’s

mobile vending laws and was told of Gulfport’s then-policy

prohibiting mobile vending. (Doc. # 88-6 at 1 ¶ 2; Doc. # 89-

2 at 49:4-51:24; Doc. # 89-6). Although Mr. Lee did not obtain

a permit from the Gulfport Merchants Association to sell ice

cream in Gulfport, he nevertheless operated his cart

throughout 2020 based upon his belief that regulation of the

cart was preempted by state law. (Doc. # 89-2 at 72:21-73:14;

Doc. # 89-8 at 6 ¶ 16). Ultimately, Code Enforcement gave Mr.

Lee two tickets for selling products in the Waterfront

Redevelopment District without a permit in violation of

Gulfport Code § 22-6.12(b). (Doc. # 89-8 at 6 ¶ 16; Doc. #

66-1 at 9:19-10:2, 16:19-17:4). After a bench trial in the

County Court for the Sixth Judicial Circuit, the court

rejected Mr. Lee’s assertion that Gulfport’s regulation of

his ice cream cart was preempted by state law as the cart was

not a “mobile food dispensing vehicle” within the meaning of

Florida Statute § 509.102. (Doc. # 66-1 at 99:10-21, 103:5-

13). Accordingly, the court found Mr. Lee guilty of the

charges. (Id. at 103:5-6).

B. The Trespass Warnings

On September 4, 2020, Mr. Lee went to the Building

Department,1 which is part of the Gulfport City Hall “campus,”

to request a permit for a yard sale. (Doc. # 89-2 at 91:23-

92:10; Doc. # 89-16 at 18:25-19:5). Although there was a sign

on the door stating that the building was closed due to COVID-

19 precautions, Mr. Lee knocked on the door to try to speak

with someone about the permit. (Doc. # 89-2 at 91:23-93:16).

An employee opened the door to speak with Mr. Lee, who became

upset when the employee refused to accept his paperwork

immediately. (Doc. # 89-2 at 94:1-95:15; Doc. # 92-2 at 5-

6). As the employee attempted to shut the door, Mr. Lee

1 The Building Department is also known as the Community

Development Building. (Doc. # 88-6 at 1-2 ¶ 3; Doc. # 89-16

at 16:6-21).

repeatedly pressed “the handicap button on the outside of the

door so that the door couldn’t be shut or be locked.” (Doc.

# 92-2 at 5-6; Doc. # 89-2 at 147:11-148:6). Another employee

then called the police, who arrived at the scene to find Mr.

Lee causing a disturbance and refusing to leave the premises.

(Doc. # 92-2 at 3, 5-6). At the direction of Mr. O’Reilly,

the police gave Mr. Lee a written trespass warning and

informed him that if he returned to City Hall, other than to

attend City Council meetings, he would be placed under arrest.

(Doc. 87-1 at 3; Doc. # 88-6 at 5 ¶ 11; Doc. # 92-2 at 3).

Mr. Lee was still allowed to conduct business in-person at

City Hall if he was accompanied by a police escort. (Doc. #

88-6 at 4-5 ¶ 14).

On July 22, 2021, Mr. Lee was arrested for battery on a

law enforcement officer after he threw a CD that hit Gulfport

Police Commander Stone in the back of his leg in the City

Hall lobby. (Doc. # 89-2 at 131:2-20, 135:6-15; Doc. # 89-16

at 71:3-7). Mr. Lee claims that did not intend to hit

Commander Stone and that he was merely “throwing the disc

past the door line because [he] could not go through the City

Hall doors to resolve [his] own problem.” (Doc. # 89-2 at

131:2-17). Nevertheless, Mr. Lee pleaded guilty to the

charge. (Doc. # 89-2 at 131:23-8).

On September 14, 2021, Mr. Lee returned to the Building

Department to ask why he had received a call from someone

from the Department earlier that morning. (Doc. # 89-2 at

138:2-12, 144:16-22, 151:15-23). Mr. Lee refused to leave the

premises until he received an answer. (Doc. # 88-6 at 9 ¶

27). While waiting, Mr. Lee recorded Gulfport employees and

posted the video to his Facebook page. (Doc. # 88-6 at 9 ¶

27; Doc. # 89-2 at 144:20-25, 148:13-151:6). Although it was

the position of Mr. O’Reilly and the Gulfport Police

Department that Mr. Lee’s prior written trespass warning

applied to the entire City Hall complex, Mr. O’Reilly directed

police officers to give Mr. Lee a second written trespass

warning that specifically stated that Mr. Lee was not to enter

the Building Department. (Doc. # 87-1 at 4; Doc. # 88-6 at 9

¶ 27; Doc. # 89-16 at 17:18-20:17).

The written trespass warnings issued to Mr. Lee did not

have an expiration date or state that they could be appealed

to the City Manager’s office. (Doc. # 87-1 at 3-4; Doc. # 92

at 18 ¶ 18; Doc. # 93 at 17 ¶ 18; Doc. # 108 at 6 ¶ 18).

C. The Arrest at the Gulfport Casino

On April 27, 2023, Gulfport held a private event for the

city’s volunteers at the Gulfport Casino. (Doc. # 89-2 at

168:21-169:3; Doc. # 89-16 at 27:8-13). Prior to the event,

Police Chief Robert Vincent sent an email to Mr. Lee stating

that he had heard that Mr. Lee was planning on showing up at

the event to cause a disturbance. (Doc. # 89-16 at 27:11-

28:8). Accordingly, Chief Vincent stated that this was a

private event, that Mr. Lee was not welcome on the property,

and that if he came onto the property and refused to leave,

he would be arrested for trespassing. (Doc. # 28-4; Doc. #

89-16 at 28:15-21). Mr. Lee admits that he received this email

but claims that he did not read it until the next day. (Doc.

# 89-2 at 171:23-172:16).

According to Mr. Lee, he was unaware that there was a

private event at the Casino at the time he arrived. (Doc. #

89-2 at 174:23-175:3). Rather, Mr. Lee states that he came to

the Casino because he saw City Councilmember Ian O’Hara drive

by and that he approached the Casino to try to make an

appointment with Mr. O’Hara. (Doc. # 89-2 at 174:19-175:5).

The entrance to the Casino is slightly elevated and is

accessible by a ramp and by a set of stairs. (Video referred

to as Video 5 in Doc. # 97 (hereinafter “Video”); Doc. # 89-

2 at 200). Mr. Lee attempted to enter the event but was

stopped at the door. (Doc. # 89-16 at 35:11-14). Chief Vincent

told Mr. Lee to leave the property several times. (Doc. # 89-

16 at 31:23-32:5). Mr. Lee left the elevated area and stood

about six feet from the ramp as he filmed Chief Vincent and

repeatedly asked why he was not allowed to remain on the

premises. (Video; Doc. # 89-2 at 173:20-175:8, 180:13-24).

Chief Vincent told Mr. Lee to leave the area in which he was

standing as he was trespassing, but Mr. Lee refused as he did

not think the area in which he was standing was part of the

Casino. (Doc. # 89-2 at 167:7-170:5, 180:13-181:21). As Mr.

Lee refused to leave the property, which Chief Vincent

considered to be part of the Casino premises, Mr. Lee was

arrested for trespass. (Doc. # 89-2 at 171:13-15, 180:13-

181:10; Doc. # 89-16 at 32:11-33:8). The trespassing charge

ultimately was dropped. (Doc. # 89-16 at 35:18-36:9).

D. Procedural History

Mr. Lee initiated this civil rights action against

Defendants on December 29, 2023. (Doc. # 1). The operative

complaint is the amended complaint, in which Mr. Lee, a Latino

man, claims that Mr. O’Reilly directed the police to issue

two trespass warnings against him, which “permanently banned”

him from Gulfport City Hall and the Building Department,

without explaining why or how to challenge the warnings. (Doc.

# 28 at ¶¶ 7, 13, 48, 66-67, 77-78; Doc. # 28-2; Doc. # 28-

3). The amended complaint separately alleges that Gulfport

and Mr. O’Reilly retaliated against Mr. Lee by having him

arrested for trespass while “standing on public property”

outside of a private event at the Gulfport Casino. (Doc. # 28

at ¶¶ 89-90, 150).

The amended complaint asserts the following twelve

claims against Defendants: an equal protection claim under 42

U.S.C. § 1983 (Count I); that Gulfport’s mobile food vendor

ordinance is unconstitutionally vague (Count II); substantive

due process claims for each trespass ban under Section 1983

(Counts III and IV); a First Amendment retaliation claim for

the arrest at the Casino under Section 1983 (Count V);

procedural due process claims for each trespass ban under

Section 1983 (Counts VI and VII); that the trespass policy is

void for vagueness (Count VIII); declaratory relief for the

mobile food vendor ordinance (Count IX); declaratory relief

for the trespass policy (Count X); injunctive relief for the

trespass bans (Count XI); and injunctive relief for the mobile

food vending preclusion (Count XII).

The Court granted in part and denied in part Gulfport’s

motion to dismiss the amended complaint and denied Mr.

O’Reilly’s motion to dismiss the amended complaint. (Doc. #

67). The Court dismissed with prejudice Count VIII, which

challenged Gulfport’s trespass policy as void for vagueness,

and Count X to the extent it sought related declaratory

relief. (Id. at 13-15). Thus, only Counts I, II, III, IV, V,

VI, VII, IX, X, XI, and XII remain. Defendants filed their

answers and affirmative defenses on February 18, 2025. (Doc.

## 77, 78).

Mr. Lee moves for summary judgment on his claims arising

from the alleged substantive and procedural due process

violations, Counts III, IV, VI, and VII. (Doc. # 108).

Defendants move for summary judgment on Counts III, IV, V,

VI, and VII. (Doc. ## 88, 89). Gulfport additionally moves

for summary judgment on Counts I, II, IX, and XII. (Doc. #

89). Each party responded and replied. (Doc. ## 92, 93, 94,

95, 98, 99, 100, 101). Additionally, Gulfport moves to strike

parts of Mr. Lee’s response to its Motion for Summary Judgment

(Doc. # 109). Mr. Lee responded. (Doc. # 110). The Motions

are ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at

324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true, and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed . . . .” (quotation omitted)).

III. Analysis

A. Count I

Count I is a race-based equal protection claim arising

from Gulfport’s actions in preventing Mr. Lee from operating

an ice cream cart. (Doc. # 28 at ¶¶ 102-09). “Proof of

racially discriminatory intent or purpose is required to show

a violation of the Equal Protection Clause.”

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 265 (1977); Hernandez v. New York, 500 U.S. 352,

353 (1991).

Gulfport argues that it is entitled to summary judgment

on Count I as there is no evidence that Gulfport intentionally

discriminated against Mr. Lee based upon his race. (Doc. # 89

at 14). In response, Mr. Lee apparently abandons his claim of

racial discrimination, asserting that his counsel has since

“realized that GULFPORT’s primary purpose in regulating

mobile food vendors . . . is economic protectionism designed

to benefit . . . brick and mortar establishments.” (Doc. # 95

at 7). Accordingly, Mr. Lee does not oppose a grant of summary

judgment to Gulfport on Count I. (Id.).

Based on Mr. Lee’s concession and the applicable law,

Gulfport is granted summary judgment on Count I.

See Parks v. City of Warner Robins, Ga., 43 F.3d 609, 616

(11th Cir. 1995) (affirming grant of summary judgment for the

defendant city on equal protection claim where there was no

evidence of discriminatory intent).

B. Counts II, IX, and XII

Count II of the amended complaint alleges that

Gulfport’s ordinance regulating “mobile food-dispensing

vehicles,” City of Gulfport Code of Ordinances § 13-84, is

unconstitutionally vague. (Doc. # 28 at ¶¶ 110-20). Count IX

seeks a declaration that Code § 13-84(2) is facially

unconstitutional and unconstitutional as applied to Mr. Lee.

(Id. at ¶¶ 192-95). Count XII seeks an injunction preventing

Gulfport from further enforcement of Code § 13-84(2). (Id. at

¶¶ 220-23).

Gulfport argues that it is entitled to summary judgment

on Counts II, IX, and XII because Mr. Lee lacks standing to

challenge Code § 13-84(2) as “he does not own, and has never

owned, a ‘mobile food-dispensing vehicle,’ i.e. a food

truck.” (Doc. # 89 at 18). In response to Gulfport’s statement

of material facts, Mr. Lee admits that he “does not own a

mobile food dispensing vehicle,” and, therefore, Gulfport’s

regulation of his ice cream cart is not preempted by Florida

Statute § 509.102, which limits the ability of local

governments to regulate such vehicles. (Doc. # 95 at 5 ¶ 20;

Doc. # 89 at 7 ¶ 20). Nevertheless, Mr. Lee argues that he

has standing to challenge Code § 13-84(2) because “the Code

does not adopt or incorporate the state’s definition of

‘mobile food dispensing vehicle.’” (Doc. # 95 at 7). The Court

agrees with Gulfport.

When an “attack on standing occurs via a motion for

summary judgment, the plaintiffs can no longer rest on their

allegations, but must set forth by affidavit or other evidence

specific facts which for the purpose of summary judgment will

be taken as true.” Region 8 Forest Serv. Timber Purchasers

Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993)

(internal quotation marks omitted). “To demonstrate his

standing to bring a vagueness challenge (or any other

challenge, for that matter), [the plaintiff] must show that:

(1) he has suffered, or imminently will suffer, an injury-

in-fact; (2) the injury is fairly traceable to the operation

of the rules; and (3) a favorable judgment is likely to

redress the injury.” Harrell v. The Fla. Bar, 608 F.3d 1241,

1253 (11th Cir. 2010). “An injury in fact requires the

plaintiff to show that he personally has suffered some actual

or threatened injury.” Granite State Outdoor Advert., Inc. v.

City of Clearwater, Fla., 351 F.3d 1112, 1116 (11th Cir. 2003)

(emphasis in original) (internal quotation marks omitted).

“While this requirement is hard to define precisely, we know

that the plaintiff must at least claim to personally suffer

some harm.” Id. (emphasis in original).

Where an ordinance does not expressly define a term, a

court interprets the term “using the normal tools of statutory

interpretation.” United States v. Vineyard, 945 F.3d 1164,

1171 (11th Cir. 2019) (internal quotation marks omitted).

“The starting point for statutory interpretation is the

language of the statute.” United States v. Dawson, 64 F.4th

1227, 1236 (11th Cir. 2023). “If the language of the statute

is clear and unambiguous, [courts] will go no further and

will employ that plain meaning.” Id. “The plain meaning of a

statutory term, however, does not turn solely on dictionary

definitions of its component words in isolation.” Id. at 1237.

“Rather, [t]he plainness or ambiguity of statutory language

is determined [not only] by reference to the language itself,

[but as well by] the specific context in which that language

is used, and the broader context of the statute as a

whole.” Yates v. United States, 574 U.S. 528, 537 (2015)

(internal quotation marks omitted); Dawson, 64 F.4th at 1237.

Here, Mr. Lee is correct that the Code does not expressly

define the term “mobile food-dispensing vehicle” or

incorporate the state’s definition of the term. However, it

is undisputed that Gulfport enacted Code § 13-84 in August

2020 in response to the Florida legislature’s passage of

Florida House Bill 1193 on June 30, 2020. That Bill preempted

local laws that ban or make certain regulations regarding

mobile food-dispensing vehicles and created Florida Statute

§ 509.102. 2020 Florida House Bill No. 1193; Fla. Stat. §

509.102 (2020); (Doc. # 66-1 at 93:19–94:7; Doc. # 89-8 at 7

¶¶ 20-21; Doc. # 89-11).

Florida Statute § 509.102(2)(a) defines a “mobile food

dispensing vehicle” as “any vehicle that is a public food

service establishment and that is self-propelled or otherwise

movable from place to place and includes self-contained

utilities, including, but not limited to, gas, water,

electricity, or liquid waste disposal.” Fla. Stat. §

509.102(1)(a). A “public food service establishment” is “any

building, vehicle, place, or structure, or any room or

division in a building, vehicle, place, or structure where

food is prepared, served, or sold for immediate consumption

on or in the vicinity of the premises; called for or taken

out by customers; or prepared prior to being delivered to

another location for consumption.” Fla. Stat. §

509.013(5)(a). However, any “place of business issued a

permit or inspected by the Department of Agriculture and

Consumer Services under s. 500.12” is not a public food

service establishment. Fla. Stat. § 509.013(5)(b)(6). Nether

is any “place of business where the food available for

consumption is limited to ice, beverages with or without

garnishment, popcorn, or prepackaged items sold without

additions or preparation.” Fla. Stat. § 509.013(5)(b)(7).

Here, although Mr. Lee admits that he does not own a

mobile food-dispensing vehicle within the meaning of Florida

Statute § 509.102 (Doc. # 95 at 4 ¶ 20), he offers no argument

as to why his ice cream cart should nevertheless be deemed a

mobile food-dispensing vehicle within the meaning of Code §

13-84. At most, he emphasizes that the cart “has been designed

specifically for selling frozen confections.” (Id. at 8). The

only support Mr. Lee offers for this point is a citation to

Code § 13-84(1), entitled “Vehicle requirements,” which

states that “[a] mobile food-dispensing vehicle shall not be

used for vending a product unless the vehicle has been

designed and constructed specifically for such purpose.”

Contrary to Mr. Lee’s contention, it does not follow that all

vehicles designed and constructed specifically to dispense

food are “mobile food-dispensing vehicles” subject to

regulation by Code § 13-84. Accordingly, the Court finds Mr.

Lee’s argument unpersuasive.

Considering the broader context of Code § 13-84, which

was enacted shortly after and in direct response to the

Florida legislature’s enactment of Florida Statute § 509.102,

and in the absence of any evidence to the contrary, the Court

finds that the plain meaning of “mobile food-dispensing

vehicle” as used in Code § 13-84 is the same as set forth in

Florida Statute § 509.102. See Dawson, 64 F.4th at 1236-37

(considering and comparing the language of a neighboring

statute in interpreting the meaning of an undefined statutory

term).

As Mr. Lee admittedly does not own a mobile food-

dispensing vehicle, he has not shown an injury in fact

regarding the alleged vagueness of Code § 13-84, and thus

lacks standing to challenge the ordinance. See Harrell, 608

F.3d at 1257 (“As for the remaining four rules, however,

Harrell has not shown an injury-in-fact, and he therefore

lacks standing to challenge them.”); Granite State, 351 F.3d

at 1117 (“Granite State does not have standing to challenge

Article 4 of the Code because it has suffered no injury with

regard to the City’s permitting and appeals process.”).

Accordingly, Counts II, IX, and XII are dismissed for

lack of standing.

C. Counts III and IV

Counts III and IV allege that Gulfport’s trespass

policy, facially and as applied to Mr. Lee, violates the

substantive due process clause of the Fourteenth Amendment.

(Doc. # 28 at ¶¶ 121-40).

Mr. Lee argues that he is entitled to summary judgment

on his substantive due process claims because “[p]ermanently

or indefinitely banning a citizen from city properties under

threat of arrest via a trespass warning, without revealing

the basis of the trespass or providing an opportunity for

review by a neutral decision maker, is arbitrary or conscience

shocking in a constitutional sense.” (Doc. # 108 at 16)

(internal quotation marks omitted). In response and in

support of their own Motions, Gulfport and Mr. O’Reilly argue

that they are entitled to summary judgment on Counts III and

IV because Mr. Lee “has no constitutionally protected liberty

interest in using Gulfport’s City Hall in the manner in which

he has continuously, when allowed access, used it over time”

and, in any event, that issuing trespass warnings to someone

disturbing a nonpublic forum does not shock the conscience.

(Doc. # 92 at 10-12; Doc. # 93 at 9-11; Doc. # 88 at 13-18;

Doc. # 89 at 19). Mr. O’Reilly also argues that he is entitled

to qualified immunity on Counts III and IV. (Doc. # 88 at 10-

12; Doc. # 93 at 2-4). Gulfport further argues that it cannot

be held liable because Mr. Lee has not presented any argument

or evidence that he was injured because of a municipal custom

or policy. (Doc. # 89 at 19-20; Doc. # 92 at 11-12). The Court

agrees that Defendants are entitled to summary judgment on

Counts III and IV.

“The test in this Circuit as to whether there has been

a violation of [substantive] due process in the context of

section 1983 has two prongs.” Executive 100, Inc. v. Martin

Cnty., 922 F.2d 1536, 1541 (11th Cir. 1991). The Court must

determine (1) that “there has been a deprivation of a

constitutionally protected interest,” and (2) that “the

deprivation was the result of an abuse of governmental power

sufficient to raise an ordinary tort to the stature of a

constitutional violation.” Id.

While the right is “neither fundamental . . . nor

limitless,” the Eleventh Circuit has “recognized a

‘constitutionally protected liberty interest,’ for purposes

of due process, ‘to be in parks or on other city lands . . .

that are open to the public generally.’” Peery v. City of

Miami, 977 F.3d 1061, 1071 (11th Cir. 2020) (quoting Catron

v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir.

2011)). “This right likely extends to City Hall.” Sheets v.

City of Punta Gorda, Fla., 415 F. Supp. 3d 1115, 1127 (M.D.

Fla. 2019). However, “a person may forfeit this liberty right

by trespass or other violation of law.” Catron, 658 F.3d at

1266; see Church v. City of Huntsville, 30 F.3d 1332, 1345

(11th Cir. 1994) (“The Constitution does not confer the right

to trespass on public lands.”).

1. Mr. Lee Was Not Deprived of a Constitutionally

Protected Liberty Interest

Here, the Court assumes that Mr. Lee had a liberty

interest in accessing the Gulfport City Hall complex,

including the Building Department, under the conditions in

which these buildings are typically open to members of the

public. Sheets, 415 F. Supp. 3d at 1127; Catron, 658 F.3d at

1267 n.5 (recognizing that “a resident of St. Petersburg has

some federal right to use St. Petersburg parks under the

ordinary conditions in which these parks are made available

to the general public.”).

However, Mr. Lee forfeited any liberty interest he had

in accessing the City Hall complex, other than for attending

City Council meetings, when he refused to leave the premises

as required by the applicable Florida trespass law, Florida

Statute § 810.08, after causing the previously described

disruptions. Catron, 658 F.3d at 1266; In re Watkins, No. 23-

11718, 2024 WL 1174182, at *1, *5 (11th Cir. Mar. 19, 2024)

(affirming district court’s denial of Watkins’s motion for

leave to file a complaint asserting, inter alia, a due process

claim arising from his suspension from a public library, and

noting that because Watkins “arguably violated the law by

disturbing the peaceful environment of the library,” he “may

have forfeited his liberty interest and no procedural-due-

process violation took place”); Patrick v. McGuire, No. 8:24-

cv-999-MSS-NHA, 2024 WL 4803217, at *8 (M.D. Fla. Nov. 15,

2024) (holding that plaintiff “forfeited her right to access

the [Pasco County Tax Collector’s] Office when she failed to

comply with the Office’s policy and the requests that she

either comply with the policy or leave”); Sheets, 415 F. Supp.

3d at 1128 (“Put simply, neither Sheets nor any other person

has an absolute right to visit City Hall. So when the City

limits the use of City Hall based on a violation of the

Ordinance, it is not violating liberty interests.”).

Accordingly, there was no substantive due process violation,

and Defendants are entitled to summary judgment on that basis.

2. Even If Mr. Lee Did Not Forfeit His Liberty

Interest, Defendants’ Actions Did Not Violate

Mr. Lee’s Due Process Rights

The Supreme Court has “distinguished between

substantive-due-process violations that the government

commits in its legislative versus its executive capacities.”

Littlejohn v. Sch. Bd. of Leon Cnty., Fla., 132 F.4th 1232,

1240 (11th Cir. 2025) (citing Cnty. of Sacramento v. Lewis,

523 U.S. 833, 846 (1998)). “If legislative action implicates

a fundamental right, that action must survive strict

scrutiny.” Id. at 1239. “If it involves a right that is not

fundamental, we subject that action to rational-basis

review.” Id. at 1243.

“When executive action is involved, only the most

egregious official conduct can be said to be arbitrary in the

constitutional sense.” Id. at 1240 (internal quotation marks

omitted). “And to satisfy that standard, . . . the cognizable

level of executive abuse of power is that which shocks the

conscience.” Id. (internal quotation marks omitted).

“[C]onduct intended to injure in some way unjustifiable by

any government interest is the sort of official action most

likely to rise to the conscience-shocking level.” Sacramento,

523 U.S. at 849. Only “the most egregious conduct meets this

standard.” Littlejohn, 132 F.4th at 1243 (internal quotation

marks omitted).

“Executive acts characteristically apply to a limited

number of persons and typically arise from the ministerial or

administrative activities of members of the executive

branch.” Id. at 1242 (internal quotation marks omitted).

“Legislative acts, on the other hand, generally apply to a

larger segment of — if not all of — society; laws and broad-

ranging executive regulations are the most common examples.”

Id. (internal quotation marks omitted).

In Mr. Lee’s Motion, he asserts that “O’REILLY’s

unilateral decision to direct the GULFPORT police to issue

permanent trespass warnings to LEE is indisputably an

executive rather than a legislative decision.” (Doc. # 108 at

15). In response and in support of their own Motions for

Summary Judgment, Gulfport and Mr. O’Reilly agree and argue

that, even if Defendants deprived Mr. Lee of a

constitutionally protected liberty interest, it cannot be

said that “issuing a trespass warning to someone who violates

a law, by way of attempting to enter a restricted area, or is

disruptive of official public business, is either

unreasonable or ‘egregious’ conduct, or conscience-shocking.”

(Doc. # 88 at 16-18; Doc. # 89 at 19; Doc. # 92 at 9-10; Doc.

# 93 at 9-10). However, in reply, Mr. Lee argues that “the

‘shocks the conscience’ standard does not apply in

determining whether generally applicable government policies

like GULFPORT’s trespass policy violate substantive due

process” and that Defendants’ actions are subject to rational

basis review. (Doc. # 98 at 5) (quoting Littlejohn, 132 F.4th

at 1242). As Gulfport argues in its Motion to Strike (Doc. #

109 at 5-6), Mr. Lee improperly raised this argument for the

first time in his reply. WBY, Inc. v. DeKalb Cnty., Georgia,

695 F. App’x 486, 492 (11th Cir. 2017). Accordingly, the Court

grants Gulfport’s Motion to Strike to the extent of striking

this new argument. In any event, Mr. Lee has not demonstrated

a substantive due process violation under either test.

i. Mr. Lee’s As-Applied Challenge to the

Trespass Policy Does Not Shock the

Conscience

“Because the role of the executive is to apply, or to

enforce, statutes, any as-applied challenge necessarily

implicates executive, rather than legislative, action.”

Hillcrest Prop., LLP v. Pasco Cnty., 915 F.3d 1292, 1302 (11th

Cir. 2019) (emphasis in original). Accordingly, Mr. Lee’s as-

applied challenge to Gulfport’s trespass policy is a

challenge to executive action. Littlejohn, 132 F.4th at 1242;

Hillcrest, 915 F.3d at 1302. The Court must determine whether

Defendants’ actions in applying the trespass policy to Mr.

Lee shocked the conscience. Littlejohn, 132 F.4th at 1243.

Defendants’ actions did not rise to that level.

Here, Mr. Lee was issued a trespass warning on September

4, 2020, because he refused to leave the premises of the

Building Department, which was not open to the public due to

COVID-19 precautions. Despite this, Mr. Lee hit the handicap

access button to keep the door to the building open multiple

times. As a result, at Mr. O’Reilly’s direction, the police

responded to the scene, gave Mr. Lee a written trespass

warning, and told him he would be placed under arrest if he

returned to City Hall, other than to attend City Council

meetings. (Doc. # 87-1 at 3; Doc. # 88-6 at 5 ¶ 11; Doc. #

92-2 at 3). Mr. Lee was informed when he was issued the

trespass warning “that he was not being limited from attending

meetings of the Gulfport City Council or otherwise doing

business with the City Hall, but that it would have to be

over the phone, over email, or over the website.” (Doc. # 88-

6 at 5 ¶ 13).

Mr. O’Reilly directed that the police issue another

trespass warning to Mr. Lee as a result of the September 14,

2021 incident. During that incident, Mr. Lee was “verbally

abusive to City employees and again disturbing the work

environment of City Hall, and would not leave until an answer

was provided to him for an alleged phone call he had received

from City Hall, while claiming that he was doing a so-called

‘First Amendment audit’ and filming City employees.” (Doc. #

88-6 at 9 ¶ 26).

The written trespass warning from the 2020 incident says

“Expiration: Indefinite.” (Doc. # 87-1 at 3). The written

trespass warning from the 2021 incident says “Expiration:

Never.” (Id. at 4). However, Mr. O’Reilly explained that, at

the time, Gulfport had a policy of “‘indefinitely’

trespassing individuals,” but that the individual could

appeal the issuance, duration, or scope of a trespass warning

to him as City Manager. (Doc. # 88-6 at 5 ¶ 12). If Mr.

O’Reily refused to change his determination, the individual

could appeal that decision to the City Council. (Doc. # 88-7

at 21:22-23:7; Doc. # 89-16 at 55:16-56:12). There is no

evidence that Mr. Lee received written notice of his right to

appeal. (Doc. # 88-7 at 41:19-21, 48:12-15). Mr. Lee testified

that the reason he did not appeal his trespass warnings was

because he believes the “person violating [his] rights should

not be the one who has the authority to make those decisions.”

(Doc. # 89-2 at 166:1-12).

Here, Defendants’ actions in issuing trespass warnings

indefinitely banning Mr. Lee from accessing the City Hall

campus due to his failure to leave the premises when directed

do not amount to conscience-shocking conduct. Although it

would have been better if the written trespass warnings

explicitly stated the reasons for which the warnings were

issued or the method by which Mr. Lee could appeal the

warnings, this omission does not render the trespass warnings

egregious. See Littlejohn, 132 F.4th at 1243-44 (noting that

“[o]nly the most egregious conduct meets this standard”

(internal quotation marks omitted)).

ii. Mr. Lee’s Facial Challenge to the

Trespass Policy Is Unsuccessful as the

Policy Survives Rational Basis Review

To the extent Mr. Lee challenges Gulfport’s trespass

policy on its face (Doc. # 28 at ¶¶ 122, 132), he is

challenging a legislative act. See Kentner v. City of Sanibel,

750 F.3d 1274, 1280 (11th Cir. 2014) (“Because plaintiffs are

challenging the Ordinance on its face rather than contesting

a specific zoning or permit decision made under the auspices

of the Ordinance, we conclude that they are challenging a

legislative act.”). “Substantive due process challenges that

do not implicate fundamental rights are reviewed under the

‘rational basis’ standard.” Id. As the Eleventh Circuit has

recognized, an individual’s liberty interest “to be in parks

or on other city lands . . . that are open to the public

generally” is not a fundamental right. Peery, 977 F.3d at

1071 (internal quotation marks omitted). Therefore, Gulfport

must prevail if the trespass policy “is rationally related to

the achievement of some legitimate government purpose.”

Bannum, Inc. v. City of Fort Lauderdale, Fla., 157 F.3d 819,

822 (11th Cir. 1998). “This standard is highly deferential

and [courts] hold legislative acts unconstitutional under a

rational basis standard in only the most exceptional of

circumstances.” Kentner, 750 F.3d at 1281 (internal quotation

marks omitted).

Mr. Lee challenges Gulfport’s policy in which

“supervisors of individual city facilities [were] empowered

to issue trespass warnings whenever they have reason to

believe an individual has caused or is likely to cause a

disruption of services or put the safety of staff or the

public at risk.” (Doc. # 88-7 at 42:8-21).

First, the Court must identify “a legitimate government

purpose — a goal — which the enacting government body could

have been pursuing.” Bannum, 157 F.3d at 822 (internal

quotation marks omitted) (emphasis in original). As a

government, “no less than a private owner of property, has

power to preserve the property under its control for the use

to which it is lawfully dedicated,” the government has a

legitimate interest “in limiting the use of its property to

its intended purpose.” Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 800 (1985) (citation omitted); U.S.

Postal Serv. v. Council of Greenburgh Civic Associations, 453

U.S. 114, 129-30 (1981) (“[T]he State . . . has power to

preserve the property under its control for the use to which

it is lawfully dedicated.” (internal quotation marks

omitted)). Public safety is also a legitimate governmental

interest. Bannum, 157 F.3d at 823.

Next, the Court must determine whether a rational basis

exists for the municipality to believe that the policy “would

further the hypothesized purpose.” Bannum, 157 F.3d at 822

(internal quotation marks omitted). Here, the second prong of

the rational basis test is satisfied. The trespass policy,

which permits supervisors of city facilities to issue

trespass warnings if they have reason to believe an individual

has caused or is likely to cause a disruption of services or

put the safety of staff or the public at risk, is sufficiently

related to the legitimate governmental interests of public

safety and limiting the use of its property to its intended

purpose. Therefore, Mr. Lee’s facial challenge to the

trespass policy is meritless because the policy survives

rational basis review. See Kentner, 750 F.3d at 1281; Bannum,

157 F.3d at 824.

3. Qualified Immunity

As there was no constitutional violation, Mr. O’Reilly

is entitled to qualified immunity on Counts III and IV. See

Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996)

(“Without a constitutional violation, there can be no

violation of a clearly established constitutional right.”

(internal quotation marks omitted)).

4. Municipal Liability

As the trespass policy itself is not unconstitutional

and as Mr. O’Reilly did not unconstitutionally apply the

policy to Mr. Lee, Gulfport cannot be held liable under

Section 1983. City of Canton, Ohio v. Harris, 489 U.S. 378,

387 (1989).

Therefore, Defendants are granted summary judgment on

Counts III and IV.

Further, in Gulfport’s Motion to Strike, it argues that

this Court should strike Exhibit A to Mr. Lee’s reply in

support of summary judgment, which is a compilation of

trespass warnings issued to other individuals on city-owned

properties that Gulfport produced in response to Mr. Lee’s

first request to produce, as well as any argument that these

trespass warnings are evidence of a municipal custom or

policy. (Doc. # 109 at 2, 4-5). As the evidence and argument

is offered solely in rebuttal to Gulfport’s contention that

Mr. Lee failed to provide evidence of a municipal custom or

policy, which the Court need not address, the Court denies

the Motion as moot to the extent it seeks to strike Exhibit

A to Mr. Lee’s reply and argument related to the trespass

warnings in that Exhibit.

D. Counts VI and VII

Counts VI and VII allege that indefinitely banning Mr.

Lee from City Hall and the Building Department pursuant to

Gulfport’s trespass policy violated the procedural due

process clause of the Fourteenth Amendment. (Doc. # 28 at ¶¶

153-78).

“A Section 1983 procedural due process claim requires a

plaintiff to prove three elements: (1) a deprivation of a

constitutionally-protected liberty or property interest; (2)

state action; and (3) constitutionally-inadequate process.”

Catron, 658 F.3d at 1266 (internal quotation marks omitted).

As previously explained, Defendants did not deprive Mr. Lee

of a constitutionally protected liberty interest in issuing

the trespass warnings. Mr. Lee had already forfeited any

liberty interest he had in accessing the City Hall complex,

other than for attending City Council meetings, when he caused

disruptions and refused to leave the premises as required by

the applicable Florida trespass law, Florida Statute §

810.08. Catron, 658 F.3d at 1266; In re Watkins, 2024 WL

1174182, at *5; Patrick, 2024 WL 4803217, at *8; Sheets, 415

F. Supp. 3d at 1128.

As there was no constitutional violation, Mr. O’Reilly

is entitled to qualified immunity on Counts VI and VII,

Cottrell, 85 F.3d at 1490, and Gulfport cannot be held liable

under 42 U.S.C. § 1983. City of Canton, 489 U.S. at 387.

Accordingly, Defendants are granted summary judgment on

Counts VI and VII.

E. Count V

In Count V, the Section 1983 First Amendment retaliation

claim against Mr. O’Reilly and Gulfport, Mr. Lee alleges that

Defendants “had a premeditated plan to arrest” Mr. Lee at the

Casino and that his arrest for violation of Florida Statue §

810.09 “was not based upon any legitimate concern for safety

or property but rather [Mr. Lee’s] lengthy history of

criticizing [Gulfport].” (Doc. # 28 at ¶¶ 93, 143, 147).

Mr. O’Reilly and Gulfport argue that they are entitled

to summary judgment on Count V because there is no genuine

dispute as to whether Chief Vincent had probable cause to

arrest Mr. Lee for trespass after he refused to leave the

premises after receiving a verbal trespass warning. (Doc. #

88 at 18-20; Doc. # 89 at 20). Gulfport argues that it is

entitled to summary judgment for the additional reason that

there is “no evidence of a [Monell v. Department of Social

Services, 436 U.S. 658 (1978)] custom or policy as to the

allegations in Count Five.” (Doc. # 89 at 20-21). In response,

Mr. Lee argues that there are genuine issues of fact regarding

the circumstances of his arrest that preclude a finding that

Defendants are not entitled to judgment as a matter of law.

(Doc. # 94 at 8-9; Doc. # 95 at 11-13). Mr. Lee further

asserts that it is not “necessary to prove the existence of

a ‘policy or custom’ to prevail in a retaliatory arrest

claim.” (Doc. # 95 at 13-14).

The Court agrees with Defendants that there is no genuine

dispute of material fact as to whether there was probable

cause for Mr. Lee’s arrest. Therefore, the Court will not

reach Gulfport’s additional argument regarding the lack of

evidence of a municipal policy or custom.

“To bring a First Amendment claim for retaliation, a

plaintiff generally must show: (1) he ‘engaged in

constitutionally protected speech,’ (2) ‘the defendant’s

retaliatory conduct adversely affected that protected

speech,’ and (3) ‘a causal connection exists between the

defendant’s retaliatory conduct and the adverse effect on the

plaintiff’s speech.’” Jennings v. Smith, No. 23-14171, 2024

WL 4315127, at *4 (11th Cir. Sept. 27, 2024) (quoting

DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1289 (11th

Cir. 2019)). Moreover, “[t]he plaintiff pressing a

retaliatory arrest claim must plead and prove the absence of

probable cause for the arrest.” Nieves v. Bartlett, 587 U.S.

391, 402 (2019).

“Probable cause to arrest exists if the facts and

circumstances within the officer’s knowledge, of which he has

reasonably trustworthy information, would cause a prudent

person to believe, under the circumstances shown, that the

suspect has committed, is committing, or is about to commit

an offense.” Carter v. Butts Cnty., Ga., 821 F.3d 1310, 1319

(11th Cir. 2016) (internal quotation marks omitted). “This

probable cause standard is practical and non-technical,

applied in a specific factual context and evaluated using the

totality of the circumstances.” Skop v. City of Atlanta, 485

F.3d 1130, 1137 (11th Cir. 2007).

“Florida state law criminalizes trespass on property

other than a structure or conveyance — such as a public park

— where a person, ‘without being authorized, licensed, or

invited,’ ‘willfully enters upon or remains’ on the property

‘[a]s to which notice against entering or remaining is given

. . . by actual communication to the offender.’” Watkins v.

Shields, 861 F. App’x 812, 816 (11th Cir. 2021) (quoting Fla.

Stat. § 810.09(1)(a)); Watkins v. Broward Sheriff Off., 824

F. App’x 865, 868 (11th Cir. 2020).

Here, it is undisputed that, prior to the volunteer

luncheon, Chief Vincent heard that Mr. Lee and another

individual were planning to show up at the event to cause a

disturbance. (Doc. # 89-16 at 27:24-28:8). Accordingly, Chief

Vincent sent Mr. Lee an email warning him that he was not

welcome at the private event and explaining that he would be

arrested for trespass if he were to come and refuse to leave.

(Doc. # 28-4; Doc. # 89-16 at 28:15-21). Mr. Lee attempted to

enter the event but was stopped at the door. (Doc. # 89-16 at

35:11-14). Although Chief Vincent told Mr. Lee to leave the

property several times, Mr. Lee remained standing about six

feet from the ramp leading up to the entrance. (Doc. # 89-16

at 31:23-32:5; Video; Doc. # 89-2 at 173:20-174:8, 180:13-

181:10). Mr. Lee was arrested for trespass after he refused

to leave the property, which Chief Vincent considered to be

part of the Casino premises. (Doc. # 89-2 at 171:13-15,

180:13-181:10; Doc. # 89-16 at 32:11-33:8).

As it is undisputed that Mr. Lee was not invited to the

event at the Casino and refused to leave the area next to the

access ramp despite Chief Vincent’s instructions, the only

element of trespass seriously at issue is whether Chief

Vincent had probable cause to believe that Mr. Lee was not

authorized to remain where he was standing at the time of his

arrest. Mr. Lee points out that, when questioned whether the

area in which Mr. Lee was standing at the time of his arrest

was considered part of the Casino, Chief Vincent testified,

“It depends on who you ask.” (Doc. # 89-16 at 32:15-18).

However, Chief Vincent continued his testimony by stating

that he considered it part of the Casino. (Id. at 32:18-19).

Chief Vincent further testified that he asked Mr. O’Reilly,

who worked at the Casino when he was the Parks and Recreation

Director, and a criminal court judge, both of whom believed

the area was part of the Casino premises. (Id. at 32:20-

33:5).

Mr. Lee has not identified any evidence that

demonstrates there is a genuine issue as to whether the facts

and circumstances within Chief Vincent’s “knowledge, of which

he has reasonably trustworthy information, would cause a

prudent person to believe, under the circumstances shown,”

that Mr. Lee had violated Florida Statute § 810.09(1)(a)(1)

by refusing to leave the area by the ramp after being asked

to leave. Carter, 821 F.3d at 1319. Indeed, Mr. Lee has not

offered any evidence that the area in which he was standing

was not Casino property other than his conclusory testimony

that it was “not part of the casino.” (Doc. # 89-2 at 179:1-

5, 180:21-24).

Mr. Lee also notes that there is a discrepancy between

the testimony of Chief Vincent and Mr. O’Reilly regarding

whether Mr. O’Reilly told Chief Vincent that Mr. Lee was not

welcome at the Casino on April 27, 2023. (Doc. # 94 at 8-9;

Doc. # 88-7 at 24:12-25:21 32:8-14; Doc. # 89-16 at 27:11-

21, 33:9-11). However, this discrepancy is not material as it

remains undisputed that Mr. Lee was not welcome at the Casino

because he was not invited to the private event. Allen, 121

F.3d at 646; (Doc. # 28-4; Doc. # 94 at 4 ¶ 38; Doc. # 88-7

at 26:14-18; Doc. # 89-16 at 34:25-35:8).

Considering the undisputed evidence that Mr. Lee was not

welcome at the private event at the Casino and refused to

obey Chief Vincent’s command that he leave what Chief Vincent

believed to be part of the Casino premises, the Court agrees

with Defendants that there is no genuine issue of material

fact that Chief Vincent had probable cause to arrest Mr. Lee

for violation of Florida Statute § 810.09. See Watkins v.

Broward Sheriff Off., 824 F. App’x at 868 (finding that

defendant police officer had probable cause to believe that

plaintiff “was actively committing the offense of trespass on

property other than a structure or conveyance when she

arrested him, regardless of whether the signs that she viewed

as ‘no trespassing’ signs actually met the statutory notice

requirements,” because the officer “had been informed that

the property manager had complained to the police that

[plaintiff] refused to leave the property after being asked

to do so, and she knew that he remained on the property when

she arrived”); Joyce v. Crowder, 509 F. App’x 969, 970 (11th

Cir. 2013) (holding that the arresting officers had probable

cause to arrest plaintiffs as (1) the officers were told by

a sergeant that plaintiffs were on the west side of the fence

on private property and (2) the officers reasonably assumed

that plaintiffs had to have crossed the fence, thus

constituting probable cause that plaintiffs had the notice

required by Florida law for violation of

its trespassing statute”); Harvey v. City of Stuart, 296 F.

App’x 824, 828 (11th Cir. 2008) (finding that defendants had

probable cause to arrest plaintiff who was “standing at a

location where they knew he did not live and where ‘No

Trespassing’ signs were posted”). The Court grants summary

judgment on Count V in favor of Defendants.

F. Counts X and XI

No party moved for summary judgment on Counts X and XI,

which seek declaratory and injunctive relief regarding

Gulfport’s trespass policy. Accordingly, these counts remain

pending.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff Jesse Lee’s Amended/Corrected Motion for

Partial Summary Judgment (Doc. # 108) is DENIED.

(2) Defendant James O’Reilly’s Motion for Summary Judgment

(Doc. # 88) is GRANTED. Summary judgment in favor of Mr.

O'Reilly is granted on Counts III, IV, V, VI, and VII.

(3) Defendant City of Gulfport’s Motion for Summary Judgment

(Doc. # 89) is GRANTED. Summary judgment in favor of

Gulfport is granted on Counts I, III, IV, V, VI, and

VII.

(4) Defendant City of Gulfport’s Motion to Strike Exhibits

to, and New Arguments in, Plaintiff’s Reply to City’s

Response to His Motion for Partial Summary Judgment

(Doc. # 109) is GRANTED in part and DENIED in part as

set forth herein.

(5) Counts II, IX, and XII are dismissed for lack of

standing.

DONE and ORDERED in Chambers in Tampa, Florida, this

13th day of November, 2025.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

39