625 Fusion, LLC v. City of Fort Lauderdale

• Decision Date: 17 March 2021
• Docket Number: CASE NO. 19-61308-CIV-ALTMAN/Hunt
• Citation: 526 F.Supp.3d 1253
• Parties: 625 FUSION, LLC d/b/a Red Door Asian Bistro, et al., Plaintiffs, v. CITY OF FORT LAUDERDALE, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

526 F.Supp.3d 1253

625 FUSION, LLC d/b/a Red Door Asian Bistro, et al., Plaintiffs,

v.CITY OF FORT LAUDERDALE, et al., Defendants.

CASE NO. 19-61308-CIV-ALTMAN/Hunt

United States District Court, S.D. Florida.

Signed March 17, 2021

Michael A. Pizzi, Michael A. Pizzi, Jr., P.A., Gail M. Walsh, Douglas Jason Jeffrey, Law Offices of Douglas J. Jeffrey, P.A., Miami Lakes, FL, Benedict P. Kuehne, Michael T. Davis, Kuehne Davis Law, P.A., Miami, FL, for Plaintiffs.

Michael Thomas Burke, Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendant City of Ft. Lauderdale.

Avel Arriera, Law Office of Avel Arriera, P.A., Natalia Timmons, Gallardo Law Office, Miami, FL, Michael Thomas Burke, Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendant Robert Gonzalez.

ORDER

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

If you want to open a restaurant in the City of Fort Lauderdale, you need a permit.

The Plaintiffs own and operate a restaurant in the City. Robert Gonzalez was the Chief Mechanical Inspector the City assigned to inspect the Plaintiffs’ restaurant. The Plaintiffs allege that Gonzalez discriminated against them because of their Asian heritage, that he illegally (and secretly) revoked their permits, and that he badgered and belittled them with anti-Asian slurs. Gonzalez—a Defendant here—hasn't moved to dismiss, and the Plaintiffs’ claims against him will proceed.

But the claims against the City are more of a mixed bag. On the one hand, the Plaintiffs have done just enough to advance their equal protection claim against the City to summary judgment. On the other, they come nowhere near stating a viable due process claim against the City. The City's Motion to Dismiss is therefore GRANTED in part and DENIED in part .

THE FACTS

The Plaintiffs—Antonio Asta, Zhi Yu Liu, and the Red Door Asian Bistro—wanted to open a new Asian bistro to "enhance the Las Olas Boulevard retail area" and to "contribute[ ] to the overall pride and quality of life of the City." Second Amended Complaint ("SAC") [ECF No. 53] ¶ 24. On August 11, 2017, the Plaintiffs obtained a "Business Tax Receipt"—"the equivalent of a business license," id. ¶ 18—and began construction on November 20, 2017, id. ¶ 19. Their target date for "final approval" was "no later than February 2018." Id. ¶ 20. And, with approvals in hand from the City's Fire Department, electrical inspectors, and "other mandatory City inspectors," the Plaintiffs were on track to meet that timeline. Id. ¶ 21.

All that changed when the City's Chief Mechanical Inspector—Robert Gonzalez—arrived on the scene. Id. ¶¶ 10, 30. "Early in the construction project," Gonzalez came into the restaurant and told the Plaintiffs that "I'm in charge here. We do things different from what you get away with in New York. I know all about how these Chinese guys do things. No chink from New York is going to tell me how to do my business." Id. ¶ 30. And that was just the beginning. Gonzalez, the SAC says, constantly admonished them that "Las Olas is not China Town" and told Plaintiff Liu to "go back to Hong Kong where he belongs[.]" Id. ¶ 31. Gonzalez claimed absolute authority, declaring that "the Chief Building Officer ‘assigned’ decisions" to him and that "no one overruled [him] when it came to mechanical permits." Id. ¶ 32. Gonzalez cautioned the Plaintiffs that "he was in contact with ... the Broward Board of Appeals and that any appeal ... would be futile since he ... [had] ‘already taken care of that.’ " Id. ¶ 34. Gonzalez warned that any challenge to his authority would be met with reprisals. Id. ¶ 35.

On April 30, 2018, Gonzalez issued a "red flag" notice on one of Red Door's "kitchen hood[s]." Id. ¶ 36. According to the Plaintiffs, this "red flag" came more than one year after the deadline for the City to impose such a flag had expired—and even though the flag was entirely unsupported by any evidence. Id. When the Plaintiffs challenged the red flag, "Gonzalez became irate and emphatically explained his rules: what Gonzalez decided to do was the law, the policy, and the process for the City.... Gonzalez intimidated the Plaintiffs by stating there was no right to appeal him[.]" Id. ¶ 40. "No documentation was produced sufficient for Plaintiffs to take any administrative or other action as such documentation is a condition precedent to any such legal challenge and Gonzalez refused to issue any such documentation because his determination was final."

Id.¹ In challenging the red flag, the Plaintiffs reached out directly to the kitchen hood's manufacturer—only to discover that "Gonzalez intentionally misled and provided false information to the manufacturer of the insulation of the hood in order to procure a letter falsely suggesting that there was something wrong" with the hood. Id. ¶ 48. The Plaintiffs had to "obtain letters and hire[ ] experts to prove the kitchen hood ... was in fact the correct piece of equipment[.]" Id. ¶ 52.

On May 3, 2018, the Plaintiffs told "all in attendance" at a meeting—which included Chief Building Official John Travers ("CBO Travers"), Deputy Building Official Luis Hernandez ("DBO Hernandez"), Business Coordinator Andre Cross, and "representatives of the City Manager and City Mayor's Office"—about Gonzalez's "animus" towards the Plaintiffs. Id. ¶ 73. On May 9, 2018, "Travers himself wrote a memo to these same officials ... acknowledging that Gonzalez's denials were not predicated upon correct information." Id. ¶ 74.²

On May 7, 2018, Mechanical Inspector Tony Sedoff "initially agreed" that Gonzalez's actions were not properly motivated "and told [CBO] Travers and [DBO] Hernandez." Id. ¶ 42. Sedoff specifically informed CBO Travers, DBO Hernandez, and the "City Manager's Office" that approval was, in his words, a "no-brainer" and that "Gonzalez's actions in keeping the business closed made no sense." Id. ¶ 43. Sometime later, Sedoff withdrew his approval, see id. ¶ 45, citing "intimidat[ion], harass[ment] and [being tape recorded] by his superiors" for "dar[ing] to challenge the decisions of Gonzalez," id. ¶¶ 76–77.

At some point in this process, the Plaintiffs told "City officials" about "Gonzalez's improper actions and motivations, affirmatively requesting his removal from all matters" pertaining to Red Door. Id. ¶ 44. After the Plaintiffs threatened litigation, the City "assign[ed] its Building Official to visit the Red Door personally, while another inspector—a different inspector who handles national training—looked at the kitchen hood device. Only then did the City" withdraw the red flag. Id. ¶ 55.

By May 9, 2018, the Plaintiffs were ready for their final permit. While they were at City Hall to pick it up, though, Gonzalez approached Plaintiff Liu and made another offensive comment. Id. ¶¶ 58–59. Seven days later, on May 16, 2018, Gonzalez "surreptitiously accessed the City's computer system with his official access and authority as a City official ... and cancelled the mechanical approval" for the Red Door; and, the Plaintiffs add, CBO Travers "explicitly allowed the illegal withdrawal." Id. ¶¶ 63–64. The City never told the Plaintiffs about this cancellation, and Red Door only discovered it when the restaurant's architect "heard Gonzalez brag that he deliberately cancelled approvals for the Red Door." Id. ¶ 65.

The Plaintiffs arranged a meeting on May 23, 2018 with "the City" to "address all issues the City required addressing," but "the City" cancelled the meeting, and "[e]very subsequent request by the Plaintiffs to reschedule the meeting and address all possible issues raised by Gonzalez and the City were ignored[.]" Id. ¶¶ 79–81. The Plaintiffs scheduled another meeting for June 11, 2018 to discuss "Gonzalez and the City's contrived ‘new issues,’ " but, when the Plaintiffs arrived, "they were abruptly informed by City officials that the meeting had been cancelled." Id. ¶¶ 82–85. On July 6, 2018, "the City Mayor, Manager, and all policy makers were again informed of Gonzalez's improper and discriminatory behavior[.]" Id. ¶ 85. Red Door eventually opened in September 2018. Id. ¶ 71.

The City has filed a Motion to Dismiss (the "Motion") [ECF No. 56], which is now ripe for adjudication, see Response [ECF No. 63]; Reply [ECF No. 67].

THE LAW

On a motion to dismiss, the Court must accept the plaintiff's factual allegations as true, construing the complaint in the light most favorable to the plaintiff. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ). Unsupported factual allegations and legal conclusions, however, receive no such deference. See Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

"To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (alteration added) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant...