Da Mortgage, Inc. v. City of Miami Beach, 05-12540.
| Citation | 486 F.3d 1254 |
| Decision Date | 18 May 2007 |
| Docket Number | No. 05-12540.,05-12540. |
| Parties | DA MORTGAGE, INC., A Florida Corporation, Plaintiff, 136 Collins Avenue, L.C., A Florida Corporation, Plaintiff-Appellant, v. CITY OF MIAMI BEACH, A Florida Municipal Corporation, Miami-Dade County, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Datorre, PA Dept. of Health, Harrisburg, PA, for Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, FAY and SILER,* Circuit Judges.
Appellant ("L.C."), a Miami Beach nightclub owner challenges the constitutionality of a Miami-Dade County ("County") noise ordinance that the City of Miami Beach ("City") attempted to enforce against the appellant. L.C. owns and operates Opium Garden, a 20,000 square-foot dance club that occupies the atrium of a two-story building at 136 Collins Avenue on Miami Beach. L.C. subleases the premises from DA Mortgage, Inc. ("DA Mortgage"), which holds a lease on the property.
The appellant's complaint arose when the City began to cite the club for violating a County noise ordinance in November of 2001. Over the course of the next six months, the City cited L.C. d/b/a Opium Garden for violating the County noise ordinance, section 21-28(b) of the County Code, on ten separate occasions.1 It never cited DA Mortgage, however. In February of 2002, the City scheduled an administrative hearing on the citations, notifying L.C. that its repeated violations of the noise ordinance appeared to be "irreparable and irreversible in nature." The City postponed the scheduled hearing for March of 2003. Before the hearing occurred, L.C. and DA Mortgage filed a nine-count complaint against both the City and the County in the circuit court for Dade County, Florida pursuant to 42 U.S.C. § 1983. The plaintiffs asserted that the defendants had violated their First Amendment rights to free speech and their Fourteenth Amendment rights to due process. They requested declaratory relief, injunctive relief and damages.
The defendants removed the case to federal district court and each later filed separate motions for summary judgment. The plaintiffs filed a cross-motion for summary judgment. Before the parties proceeded to oral argument on the summary judgment motions, the plaintiffs waived several of the counts asserted in their nine-count complaint. The district court granted both the County and the City summary judgment, ruling that the County ordinance was constitutional on its face and that the City's enforcement provisions also passed constitutional muster.
Thereafter, L.C. filed an appeal with this Court, addressing only five of the eight counts remaining under its original complaint.2 In the interim, the City repealed its own noise ordinance and adopted the County noise ordinance in its place, mooting one of the five counts brought forward on appeal. For the reasons stated below, we affirm the district court decision to award both the County and the City summary judgment in this case.
Before we proceed with our review, we note several developments that have affected the issues on appeal and the manner in which we will structure our analysis.
After the appellant filed this appeal, the City adopted comprehensive amendments to its noise ordinance that have mooted at least one of the five claims on appeal.3 In count IV of their complaint, the plaintiffs challenged the City's authority to vest special masters with the power to adjudicate alleged violations of County ordinances such as the County noise ordinance at issue here. The plaintiffs argued that section 162.03, Florida Statutes, only allowed the City to "designate enforcement methods and penalties to be imposed for violation of ordinances adopted by the municipality." Since the City had never formally adopted the County noise ordinance as its own, the plaintiffs maintained that the County's ordinance violated Florida law. Accordingly, they asked the court to declare that sections 30-1(b) and 30-2 of the City Code, which established an alternate code enforcement system that vested special masters with the authority to enforce City and County ordinances alike, were null and void and to enjoin their use.
After L.C. filed this appeal on May 3, 2005, the City repealed its own noise ordinance and formally adopted the County noise ordinance in its place. Since the County noise ordinance is now officially a municipal ordinance, the City may enforce compliance by the methods specified in sections 30-1(b) and 30-2 of its Code without violating Florida Statutes. The City has corrected the constitutional infirmity that allegedly plagued these sections of its Code. At oral argument on the motions for summary judgment the plaintiffs conceded that the City could cure the constitutional infirmity in its alternate code enforcement provisions if it adopted the County ordinance.4
A change in statute will not always moot a constitutional claim, however. If a litigant asserts damages from the application of a constitutionally defective statute, he may be able to pursue his constitutional challenge notwithstanding later legislative changes that would appear to address his complaint. See Naturist Soc., Inc. v. Fillyaw, 958 F.2d 1515, 1519 (11th Cir.1992); see also CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1264 (11th Cir.2006). Damage claims can save a § 1983 claim from mootness,5 but only where such claims allege compensatory damages or nominal damages for violations of procedural due process. See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 310, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), which notes that the basic purpose of damages under § 1983 is compensatory and that absent proof of actual injury, courts can only award nominal damages. See also Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), which endorses nominal damages awards in § 1983 actions only to vindicate certain "absolute rights" such as the right to procedural due process. Although count VI of L.C.'s complaint requested damages in connection with count IV, it did not allege any facts that would connect its damage claim to a City enforcement proceeding under sections 30-1(b) or 30-2.6
The record indicates that the City never actually applied this section of its Code against L.C. It never held a hearing on L.C.'s citations. L.C. does not dispute this fact, and acknowledged it once more for the record during oral argument before this Court. L.C. appears to have based its claim for damages on the threat that the City might prosecute it for violations of the County noise ordinance. Plaintiffs cannot bring prospective damage claims under 42 U.S.C. § 1983, however. See Tanner Advertising Group v. Fayette County, 451 F.3d 777, 786 (11th Cir.2006), where this Court held that facial challenges regarding prospective harm cannot give rise to the remedy of damages. See also Adler v. Duval County School Board, 112 F.3d 1475, 1478 (11th Cir.1997) ().
Likewise, although the plaintiffs alleged in count V of the Complaint that sections 30-1(b) and 30-2 of the City Code violated their rights to due process under the Fourteenth Amendment, they do not allege a procedural due process claim. The Complaint states that these sections of the City Code violate due process concerns to the extent that they adopt the County noise ordinance, which they allege is unconstitutionally vague and overbroad. Thus, the plaintiffs frame count V in terms of substantive due process, not procedural due process. However, as we have noted, only damage claims predicated on violations of procedural due process are compensable under § 1983. See Carey, 435 U.S. at 266-67, 98 S.Ct. 1042. Accordingly, L.C.'s damage claim, count VI, will not save its constitutional claim against the City from mootness and both claims must fail.
The record indicates that the City withdrew all of the Notices of Violation that gave rise to this Complaint during negotiations over a possible pre-trial settlement in May of 2004. Defendant City of Miami Beach's Response To Order To Show Cause, May 5, 2002, at 2. The plaintiffs filed their complaint on March 24, 2003, challenging the citations that the City issued between November 2001 and February 2002. They appended a list of the citations to the Complaint as "Exhibit A." The City continued to cite L.C. for violating the County noise ordinance after February 2002, however. Yet, L.C. never amended its complaint to include these additional citations.
From May 2002 through April 2003, the City cited L.C. for thirteen additional violations of the County noise ordinance, and in August of 2003, it scheduled a hearing to suspend L.C.'s business license on account of these newly alleged violations. 136 Collins Avenue, L.C. Statement of Undisputed Material Facts, March 29, 2004, Composite Exhibit 2. The City scheduled the license suspension hearing for September 11, 2003. On September 8, 2003, L.C. filed for a temporary injunction in the circuit court for Dade County to halt the scheduled licensing proceeding. The circuit court issued a temporary injunction on October 30, 2003.
Thereafter, the City rescheduled a special master hearing on the violations for April 22, 2004. This hearing never took place, however. When the parties filed their Joint Pre-Trial Stipulation of the Facts on May 4, 2004...
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