Abusaid v. Hillsborough County Bd., No. 03-16243.

• Decision Date: 15 April 2005
• Docket Number: No. 03-16243.
• Citation: 405 F.3d 1298
• Parties: Elias ABUSAID, Jr., a.k.a. Lou, Plaintiff-Appellant, v. HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, Hillsborough County Fire Marshal's Office, Hillsborough County, a Political Subdivision of the State of Florida, Hillsborough County Sheriff's Office, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

405 F.3d 1298

Elias ABUSAID, Jr., a.k.a. Lou, Plaintiff-Appellant, v. HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, Hillsborough County Fire Marshal's Office, Hillsborough County, a Political Subdivision of the State of Florida, Hillsborough County Sheriff's Office, Defendants-Appellees.

No. 03-16243.

United States Court of Appeals, Eleventh Circuit.

April 15, 2005.

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Donald D. Anderson and Bryan Scott Gowdy (Court-Appointed), Jacksonville, FL, for Plaintiff-Appellant.

Stephen Mark Todd, Christopher C. Sabella, Tampa, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before MARCUS, FAY and SILER^*, Circuit Judges.

MARCUS, Circuit Judge:

At issue today is whether a Florida county sheriff, acting to enforce a county dance hall ordinance, is an arm of the state entitled to the benefit of the state's Eleventh Amendment immunity from suit in federal court. We conclude that the sheriff is not an arm of the state in this case and, accordingly, we reverse the district court's dismissal of Appellant's § 1983 claims against the Hillsborough County Sheriff as being barred by the Eleventh Amendment and remand for further proceedings. We also reverse the district court's dismissal of Appellant's civil rights claims against Hillsborough County, since the Eleventh Amendment does not immunize municipalities from suit.

I.

The story begins when appellant Elias Abusaid, Jr., opened a private night club in Hillsborough County, Florida (the "County"), in November 1999. The record is unclear as to precisely what type of club Abusaid was operating, but Abusaid characterizes himself as "engaged in the entertainment, promotional, nightclub, private club and bottle club business." Appellant's Supp. Br. at 3.

On November 16, 1999, the County adopted an ordinance regulating "Rave" or "Dance Halls" (the "Dance Hall Ordinance" or the "Ordinance"), defined as clubs featuring music and dancing, but not licensed to serve alcohol. The Ordinance required that the operator of a dance or rave hall obtain a permit by applying to the County's "Rave/Dance Hall Administrator," who is required to grant a permit unless one of six enumerated criteria is present: the applicant is under 18; the application contains false information; the applicant has been convicted of violating the Ordinance within 2 years; the applicant has failed to obtain fire marshal certification; the applicant has failed to obtain certification of compliance with the Land Development Code; or the applicant has a prior criminal conviction for an enumerated offense. The Ordinance also forbids anyone under 18 years of age from being present in a dance/rave hall after midnight, and forbids those under 21 years of age from being present in a dance/rave hall after 3:00 a.m. Violations of the Dance Hall Ordinance are punishable by up to 60 days incarceration and a fine of up to $500.

Beginning in June 2000, the County, its Sheriff, and its Fire Marshal undertook a series of actions to enforce the Dance Hall Ordinance against Abusaid. The relevant facts, as Abusaid alleges them, are these. On June 3, 2000, the Sheriff arrested Abusaid and charged him with a number of criminal violations, including violations of the Dance Hall Ordinance. Subsequently, the Sheriff arrested Abusaid and charged him with violations of the Dance Hall Ordinance three more times, on June 9, 10, and 17, 2000. In addition, on June 9, 2000, the Fire Marshal issued a cease and desist order, summarily closing Abusaid's business. On June 19, 2000, Sheriff's deputies drove their cars onto Abusaid's business property and threatened Abusaid's employees "to quit their jobs or be arrested," threatened patrons with arrest, "and otherwise blocked and intimidated patrons from entering the business." Appellant's Supp. Br. at 6. Abusaid further alleges that the County threatened legal action against his landlord in June 2000, which resulted in the landlord filing to evict Abusaid.

Abusaid was tried on the criminal charges in September 2000, and found guilty of three counts of operating a rave/dance hall without a permit and one count of selling alcoholic beverages without a license. He was sentenced to a total of eighteen months' probation, with a 60-day jail sentence suspended. He was also fined $111 for each guilty count.¹

On May 13, 2003, Abusaid sued the Board of County Commissioners of Hillsborough County (the "Board"), the Fire Marshal's Office of Hillsborough County (the "Fire Marshal"), the Hillsborough County Sheriff's Office (the "Sheriff"), and Hillsborough County (the "County"), in the United States District Court for the Middle District of Florida, acting pro se. His complaint² contains eighteen counts. Counts One through Ten assert § 1983 claims based upon alleged violations of unspecified — though apparently First and Fourteenth Amendment — constitutional rights. These claims all assert the unconstitutionality of various provisions of the Dance Hall Ordinance, ask that the court declare the Ordinance invalid in its entirety, and claim that Abusaid "is entitled to compensation for the damages he has suffered as a result of the unconstitutional Dance Hall Ordinance" and to costs and attorney's fees. Count Eleven alleges that the County's enforcement of the Dance Hall Ordinance rendered Abusaid's business valueless, and thus constituted a taking under the Fifth Amendment. Counts Twelve and Thirteen raise § 1983 claims against the Sheriff, alleging false arrest and imprisonment, malicious prosecution, and conspiracy. Count Fourteen asserts a § 1983 claim against the Sheriff and the Fire Marshal for conspiring to close Abusaid's business. Count Fifteen adds a § 1983 claim against the Sheriff for trespassing and harassment. Counts Sixteen through Eighteen raise state law claims for tortious interference with a business relationship, intentional infliction of emotional distress, and negligence.

The Board, the Fire Marshal, and the County (collectively, the "County"³) jointly moved to dismiss Counts One through Eleven, Fourteen, Sixteen, and Seventeen. The Sheriff filed a motion to dismiss Counts Twelve through Fifteen. The district court, in a two-paragraph order, dismissed all of Abusaid's federal law claims — Counts One through Fifteen — as barred by the Eleventh Amendment. The court also declined to exercise supplemental jurisdiction over Abusaid's state law claims and, accordingly, granted both defendants' motions to dismiss Abusaid's complaint in its entirety. It is from this order, entered November 24, 2003, that Abusaid now appeals.

II.

The Eleventh Amendment to the Constitution bars federal courts from entertaining suits against states. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const., amend. XI. Although, by its terms, the Eleventh Amendment does not bar suits against a state in federal court by its own citizens, the Supreme Court has extended its protections to apply in such cases. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); see also Manders v. Lee, 338 F.3d 1304, 1308 n. 8 (11th Cir.2003) (en banc). This Court reviews de novo a district court's ruling regarding Eleventh Amendment immunity. Hundertmark v. Fla. Dep't of Transp., 205 F.3d 1272, 1274 (11th Cir.2000).

As we explained in our recent en banc decision in Manders v. Lee, the law is "well-settled that Eleventh Amendment immunity bars suits brought in federal court when an `arm of the State' is sued." Id. at 1308. The more difficult question — whether the entity sued is an arm of the state — "must be assessed in light of the particular function in which the defendant was engaged when taking the actions out of which liability is asserted to arise." Id. As the Supreme Court has explained in determining whether a sheriff is a state or county policymaker for purposes of a § 1983 action, "the question is not whether [the sheriff] acts for [the state] or [the county] in some categorical, `all or nothing' manner," but rather whether the sheriff is acting for the state "in a particular area, or on a particular issue." McMillian v. Monroe County, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (holding that Alabama sheriff was policymaker for the state, not for the county).

To determine whether the defendant, while engaged in the relevant function, acts as an arm of the state, we conduct a four-factor inquiry, taking into account (1) how state law defines the entity; (2) what degree of control the state maintains over the entity; (3) the source of the entity's funds; and (4) who bears financial responsibility for judgments entered against the entity. See Manders, 338 F.3d at 1309.

When the defendant entity is a county sheriff, our determination is dependent on the law of the state in which the sheriff operates, since "states have extremely wide latitude in determining their forms of government and how state functions are performed." Id. at 1309 n. 10; see also McMillian, 520 U.S. at 786, 117 S.Ct. 1734 ("[O]ur inquiry is dependent on an analysis of state law. This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law." (citations omitted)).

The relevant "function" in this case is enforcement of a County ordinance. Indeed, all of Abusaid's claims against the Sheriff arise out of actions taken in the course of enforcing Hillsborough County's Rave/Dance Hall Ordinance. The Ordinance, which was ...