I, of course, felt obligated to return a little gift of my own to the City... The money spent for the Citys new attorneys didnt bear much fruit. They were pretty much slammed for their attempt at an end run into Federal Court. Bottom line: City sent home packing. Case goes back to Circuit Court. Taxpayer money wasted again. Solution: Allow good and decent people to feed hungry children, single working mothers, and the poor where they can best be served: wherever we find them, whenever we find them. Period. Go back to your Orange Bowl prayer breakfast Mr. Mayor and leave us alone. You are way out of your element. While you are at it, follow the example set by Pope Francis and build public restrooms in public places for ALL of the citizens. Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 14-62738-CIV-LENARD/GOODMAN REVEREND CANON MARK SIMS, on his own behalf and on behalf of the HOMELESS PERSONS in Fort Lauderdale, Florida, Plaintiffs, v. CITY OF FORT LAUDERDALE, FLORIDA, Defendant. ___________________________________/ ORDER GRANTING MOTION TO ABSTAIN PURSUANT TO RAILROAD COMISSION OF TEXAS v. PULLMAN CO., AND TO REMAND (D.E. 4) THIS CAUSE is before the Court on Plaintiff, Reverend Canon Mark Sims’s Motion to Abstain Pursuant to Railroad Commission of Texas v. Pullman Co., and to Remand (“Motion,” D.E. 4), filed December 4, 2014. Pursuant to the Court’s Order expediting the briefing schedule, (see D.E. 6), Defendant, the City of Ft. Lauderdale (“the City”) filed a Response on December 10, 2014 (D.E. 7), to which Plaintiff filed a Reply on December 14, 2014, (D.E. 9). Upon review of the Motion, Response, Reply, and the record, the Court finds as follows.  Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 2 of 10 I. Background Plaintiff is an Episcopal Priest whose ministry is in Broward County, Florida. (Compl., D.E. 1-1 at 4 ¶ 1.) Plaintiff holds a sincere religious belief that requires him to share food with the homeless. (Id. ¶ 3.) On October 22, 2014, the City enacted Ordinance C-14-42 (“the Ordinance”), which places restrictions on, inter alia, Outdoor Food Distribution Centers (OFDC). (Id. ¶¶ 4-5.) The Ordinance became effective November 1, 2014. (Id. ¶ 4.) On November 2, 2014, Plaintiff was cited and charged by the Ft. Lauderdale Police with violating the Ordinance while distributing food to the homeless in the City of Ft. Lauderdale.1 The 1 violating, the Complaint quotes in its entirety Section 1(C)(2)(c), which provides: Although it is unclear which provision(s) of the Ordinance Plaintiff was cited for c. Outdoor Food Distribution Center (OFDC). Shall be subject to the following: i. If a dining area is provided, it shall meet all state, county and city requirements for food service establishments or similar uses. ii. Shall not be closer than 500 feet from another Food Distribution Center or Outdoor Food Distribution Center. iii. Shall not be any closer than 500 feet from a residential property as defined in Sec. 47-35 of the ULDR. iv. Shall provide restroom facilities, portable toilets or other similar facilities for persons preparing and serving food as well as for the persons being served food. v. Shall provide equipment and procedures for the lawful disposal of waste and wastewater at the location. vi. Shall provide equipment and procedures at the location for hand washing. vii. Shall provide written consent from the property owner to conduct that activity on the property. viii. Shall have one person, who will be present at the location at all times that food is being prepared and served, who has received Food Service Manager Certification under Section 509.039 Florida Statutes. ix. Shall have adequate storage of food at a temperature of: a. 41° F or below or 2 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 3 of 10 charge carries a $500 fine and/or 60 days incarceration. (Id. ¶ 5.) Reverend Sims desires to continue feeding the homeless in the City of Ft. Lauderdale, but alleges that the Ordinance and its enforcement has had a chilling effect upon the continuing exercise of his firmly held religious and expressive beliefs. (Id. ¶ 6.) Plaintiff originally filed this case in the Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida as Case Number CACE 14-022297, seeking declaratory and injunctive relief. (See Notice of Removal, D.E. 1 at 1.) Specifically, the Complaint seeks a declaration that the Ordinance violates the Florida Religious Freedom Restoration Act (“FRFRA”), Fla. Stat. § 761.03 (Count I), as well as the First, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 3, 4, and 5 of the Florida Constitution (Count II). (Compl. ¶¶ 9-18.) It further seeks a preliminary and permanent injunction prohibiting enforcement of the Ordinance. (Id. ¶ 18.) b. 135° or above. x. Shall provide transportation of food in a clean conveyance. xi. Shall provide service of food within four (4) hours of preparation. xii. Where non-prepackaged food is served, a convenient hand washing facility for persons preparing and serving the food; which hand washing facility must at a minimum include: a. A five (5) gallon container with a spigot that provides free-flowing water and a catch bucket to collect wastewater from hand washing. b. Soap and individual paper towels. xiii. Any wastewater generated at a location (including, but not limited to wastewater from hand washing, utensil washing, sinks, and steam tables) must be placed in a container approved by the director until properly disposed of into a sanitary sewer system or in a manner that is consistent with federal, state, and local regulations and requirements relating to liquid waste disposal. 3 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 4 of 10 On December 3, 2014, the City removed the case to this Court pursuant to 28 U.S.C. §§ 1441(1), 1443, and 1331 based on the federal constitutional claims. (See Notice of Removal ¶ 3.) The Notice of Removal states that the Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. (Id. ¶ 4.) On December 4, 2014, Plaintiff filed the instant Motion to Abstain and Remand pursuant to the Pullman Abstention Doctrine, so named for the U.S. Supreme Court’s decision in Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). (D.E. 4.)2 On December 5, 2014, a hearing was held before the state court in a related matter, Abbott v. City of Fort Lauderdale, Case Number 99-03583(05) (17th Cir. Ct.). Abbott, a case originally filed in 1999, involved a challenge to a park rule3 by a plaintiff who conducted a feeding program for the homeless on Fort Lauderdale Beach. See Abbott v. City of Ft. Lauderdale, 783 So. 2d 1213, 1214 (Fla. Dist. Ct. App. 2001). When the City informed him that his program violated Park Rule 2.2, he sought an injunction and declaratory relief in the trial court to prevent the City from enforcing the rule against him. In her final order, the trial judge denied Abbott’s claims that the rule violated his right to equal protection, his due process of law rights, and his First Amendment freedoms. The trial judge agreed with Abbott that the rule violated his rights under the Florida Religious Freedom Restoration Act of 1998 (the Act), and ordered the City to provide an alternative site on public property where Abbott could conduct his feeding program. 2 3 Plaintiff styled the Motion as an “Emergency” motion but did not follow the Local Rules for filing such a motion. (See Order Regarding “Emergency” Motion to Abstain, D.E. 6.) The Court is nevertheless treating the Motion on an expedited basis. (See id.) The rule at issue, Park Rule 2.2, provides, in relevant part: “Parks shall be used for recreation and relaxation, ornament, light and air for the general public. Parks shall not be used for business or social service purposes unless authorized pursuant to a written agreement with the City.” See Abbott v. City of Ft. Lauderdale, 783 So. 2d 1213, 1214 n.1 (Fla. Dist. Ct. App. 2001). 4 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 5 of 10 Id. Thereafter, the City selected an alternative location for Abbott to conduct his feeding program, but Abbott challenged the location and filed a motion for injunctive relief. Id. at 1215. On appeal, the court of appeals concluded that the trial judge was authorized to determine whether the selected site “represented the ‘least intrusive means’ of furthering the government’s compelling interests,” and remanded to the trial court for “a determination as to whether the site selected by the City complies with the requirements of her order and with the Florida Religious Freedom Restoration Act.” Id. (quoting Fla. Stat. § 761.03). On remand, the court found that the alternative site did not comply with the FRFRA and enjoined the City from enforcing Park Rule 2.2 to prohibit Abbott from feeding the homeless at the picnic area of Ft. Lauderdale Beach “until the City fully complies with th[e] Court’s Final Judgment . . . by either providing a suitable site for the plaintiffs to conduct their feedings or amending the zoning codes in accordance with the . . . Final Judgment.” See Order on Plaintiffs’ Renewed Motion for Contempt and/or to Enforce Injunction, D.E. 7-3 at 1-2. On November 12, 2014, after being cited for violating City Ordinance C-14-42, Abbott and his organization filed a Motion to Enforce Injunction and/or for an Order to Show Cause why the Defendant Should Not be Held in Contempt of Court for Violation of the Injunction. (Response at 11, 13.) 5 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 6 of 10 At the December 5, 2014 hearing, the state court permitted Reverend Sims and another individual, Reverend Dwayne Black,4 to intervene in Abbott. (See Response at 10; Reply at 4.) However, the court determined that based upon the instant removal, Reverend Sims’s Motion to Transfer and Consolidate was moot and ultimately not argued or heard. (Response at 10.) II. Discussion Pullman abstention is appropriate “in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.” Abell v. Frank, 625 F.2d 653, 656-57 (5th Cir. 1980) (citations and internal quotation marks omitted).5 “The rationale for the doctrine is that a federal court should ‘avoid an unnecessary federal constitutional decision [where] state’s laws . . . interpretation may dispose of a case short of federal constitutional scrutiny.’” Moheb, Inc. v. City of Miami, 756 F. Supp. 2d 1370, 1372 (S.D. Fla. 2010) (quoting BT Inv. Managers, Inc. v. Lewis, 559 F.2d 950, 953 (5th Cir. 1997)). “Among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law.” Harris Cnty. Comm’rs Court v. Moore, 420 U.S. 77, 84 (1975). “The prerequisites for Pullman abstention are that ‘(1) there must be an unsettled issue of state 4 5 The Response refers to him as “Pastor” Black, while the Reply refers to him as “Reverend” Black. (See Response at 13.) Like Abbot and Sims, Reverend Black was cited for violating Ordinance C-14-42. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit before October 1, 1981. 6 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 7 of 10 law; and (2) there must be a possibility that the state law determination will moot or present in a different posture the federal constitutional questions raised.’” Abell, 625 F.2d at 657 (quoting Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir. 1980)). Both Pullman prerequisites are met here. First, there is an unsettled issue of state law—namely, whether the Ordinance, as applied to Reverend Sims’s efforts to feed the homeless in the City of Ft. Lauderdale, violates the FRFRA, Fla. Stat. § 761.03. It does not appear that the Ordinance has been subjected to scrutiny in any Court, as it became effective November 1, 2014, and Reverend Sims was cited for violating it the very next day. (See Compl. ¶¶ 4, 6.) Under similar circumstances, this Court invoked Pullman Abstention in 10 Palm, LLC v. City of Miami Beach, No. 09-23306-CIV, 2011 WL 1102791, at *4 (Mar. 23, 2011). In 10 Palm, the Court noted: Although the City cites two state court cases which apply state antitrust laws to municipalities, the parties have not presented any case law interpreting Ordinance No.2009–3629 or AI 00–02 or otherwise argued that Florida law is settled as to this ordinance. See Moheb, Inc. v. City of Miami, 2010 U.S. Dist. LEXIS 136730, *6, 2010 WL 5209259 (S.D. Fla. Dec. 16, 2010) (Gold, J.) (granting remand of case involving application of local zoning ordinance to a local business). Nor have the parties addressed the interpretation of the City’s Code and Land Development Regulations or the legality of the City’s actions in light of Florida Statutes §§ 163.3194 and 166.041 which govern adoption of land development regulations. Id. The Court found that the “questions regarding the legality of local ordinances are unsettled” and therefore that the first prong of Pullman was satisfied. Id. Here, too, there is uncertainty as to the legality of City Ordinance C-14-42, especially considering the status of Abbott v. City of Ft. Lauderdale and the pending Motion to Enforce Injunction. (See Response at 11, 13.) 7 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 8 of 10 Second, there is a significant possibility that application of state law will moot the federal constitutional questions raised in the Complaint. Specifically, the need for a determination of the federal claims will be obviated if the state court finds that the Ordinance violated Reverend Sims’s rights under the FRFRA. Alternatively, the federal claims will be mooted by a ruling from the state court that the City’s alternative outdoor feeding sites pose a “substantial burden” and/or are not “the least restrictive means” of accomplishing a “compelling interest”—questions that are currently before the state court in Abbott v. City of Ft. Lauderdale. (See Response at 12; Reply at 4.) “Abstention is warranted ‘where there is an action pending in state court that will likely resolve the state-law questions underlying the federal claim.’” Palmer Trinity Private Sch., Inc. v. Vill. of Palmetto Bay, 802 F. Supp. 2d 1322, 1326 (S.D. Fla. 2011) (quoting Harris Cnty., 420 U.S. at 83). Although the specific issue before the state court in Abbott concerns Park Rule 2.2, the issues in that case are inextricably intertwined with the issues in this case, as reflected by the fact that the state court permitted Reverends Sims and Black to intervene in Abbott. Finally, a relevant consideration in applying Pullman abstention is the subject matter of the challenged state law. Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000); E. Naples Water Sys. v. Bd. of Cnty. Comm’rs, 627 F. Supp. 1065, 1073 (S.D. Fla. 1986). Courts often exercise their discretion under Pullman to remand, dismiss or stay cases involving disputes arising from local zoning ordinances. See Moheb, 756 F. Supp. 2d at 1373 (“Eleventh Circuit case law establishes a consistent pattern of abstaining under Pullman in cases involving constitutional challenges to zoning laws 8 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 9 of 10 because such issues are local in nature and are better decided by state courts than by federal courts.”) (citing Hill v. City of El Paso, 437 F.2d 352, 357 (5th Cir. 1971); Fields v. Rockdale Cnty. Ga., 785 F.2d 1558, 1561 (11th Cir. 1986); A.B.T. v. City of Ft. Lauderdale, 664 F. Supp. 488 (S.D. Fla. 1987), aff’d, 835 F.2d 1439 (11th Cir. 1987)); Int’l Eateries of Am., Inc. v. Bd. of Cnty. Comm’rs, 838 F. Supp. 580, 585 (S.D. Fla. 1993); Palmer Trinity, 802 F. Supp. 2d at 1326; E. Naples Water Sys., 627 F. Supp. at 1073. City Ordinance C-14-42 is unquestionably a zoning law.6 (See Ordinance, D.E. 1- 1 at 12.) For these reasons, the Court finds that abstention and remand is a proper exercise of its discretion. Pullman, 312 U.S. at 501. 6 In the development and execution of this section it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable characteristics, and that may result in adverse secondary effects on adjacent properties, particularly when several are concentrated together or are located in proximity to businesses of a community nature, residential areas, houses of worship and schools, or both thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to ensure that the location and concentration of these uses will have a minimal negative impact on the surrounding neighborhood. These regulations are intended to establish criteria by which their use will have a minimum adverse impact on the surrounding properties. (Ordinance, D.E. 1-1 at 12.) Clearly, a law regulating when, where, and how addiction treatment centers, food distribution centers, outdoor food distribution centers, and social service facilities may operate is a zoning law. (See id.) Although the Ft. Lauderdale Code of Ordinances does not have a “Zoning” Chapter, C-14-42 is unmistakably a zoning law. See Municode, Ft. Lauderdale Code of Ordinances, available at https://municode/library/fl/fort_lauderdale/codes/code_of_ ordinances (last visited December 16, 2014). For example, Ordinance C-14-42 amends the “Unified Land Development Code,” and the “Purpose” of Section 1 states: 9 Case 0:14-cv-62738-JAL Document 11 Entered on FLSD Docket 12/18/2014 Page 10 of 10 III. Conclusion Accordingly, it is ORDERED AND ADJUDGED that: 1. Plaintiff’s Motion to Abstain Pursuant to Railroad Commission of Texas v. Pullman Co., and to Remand, is GRANTED; 2. This case is REMANDED to the Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida. The Clerk is directed to take all necessary steps and procedures to effect remand of the above-captioned action; 3. All other pending motions are DENIED AS MOOT; and 4. This case is now CLOSED. DONE AND ORDERED in Chambers at Miami, Florida this 18th day of December, 2014. _____________________________________ JOAN A. LENARD UNITED STATES DISTRICT JUDGE 10
Posted on: Fri, 19 Dec 2014 19:51:06 +0000
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