625 Fusion, LLC v. City of Fort Lauderdale

• Decision Date: 31 March 2022
• Docket Number: CASE NO. 19-61308-CIV-ALTMAN/Hunt
• 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

595 F.Supp.3d 1228

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 31, 2022

Michael A. Pizzi, Michael A. Pizzi, Jr., P.A., Miami Lakes, FL, 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., 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

Our Plaintiffs—an Asian-fusion restaurant (Red Door) and its owners, Antonio Asta and Zhi Yu Liu—allege that the Defendants, the City of Fort Lauderdale and its former Chief Mechanical Inspector (Robert Gonzalez), violated their constitutional rights by delaying Red Door's opening for discriminatory reasons. In their Second Amended Complaint [ECF No. 53] (the "SAC"), the Plaintiffs advanced three claims under 42 U.S.C. § 1983 : In Count I, they claimed that the Defendants violated their equal-protection rights under the Fourteenth Amendment; in Count II, they averred that the City deprived them of their property rights without due process; and, in Count III, they contended that Gonzalez interfered with their due-process rights under the Fourteenth Amendment. In a previous order, we dismissed Count II. See 625 Fusion, LLC v. City of Fort Lauderdale , 526 F. Supp. 3d 1253, 1272 (S.D. Fla. 2021) (Altman, J.) ("MTD Order"). Now, the Defendants have moved for summary judgment on the remaining two counts.¹ This Order follows.

THE FACTS

"The facts are described in the light most favorable to [the plaintiff]." Plott v. NCL Am., LLC , 786 F. App'x 199, 201 (11th Cir. 2019) ; see also Lee v. Ferraro , 284 F.3d 1188, 1190 (11th Cir. 2002) ("[F]or summary judgment purposes, our analysis must begin with a description of the facts in the light most favorable to the [non-movant].").²

Before we begin, we address an ancillary (and preliminary) matter. The Plaintiffs contend that several paragraphs in the Defendants’ SOF violate Local Rule 56(b)(1)(B) because they don't contain "specific pinpoint references to particular parts of record material[.]" Plaintiffs’ SOF at 5 (quoting S.D. FLA. L.R. 56(b)(1)(B)). And the Plaintiffs are right to say that paragraphs 6, 10–11, 18–21, 23–25, 37–39, 47–48, 51–52, and 55–56 of the Defendants’ SOF cite only generally to certain affidavits—but include no pincites at all. Still, because we, like the Plaintiffs, have no trouble locating the specific paragraphs the Defendants relied on—and given that no one (least of all the Plaintiffs) is confused about what the Defendants are saying—we decline the Plaintiffs’ invitation to disregard the Defendants’ evidence. See S.D. FLA. L.R. 56(d) (explaining that the Court "may"—but need not—strike a non-compliant statement of facts).

I. November 2017–January 2018: Red Door and the Kitchen Hood

Asta and Liu are restauranteurs and business partners from Long Island. See Red Door Dep. at 13:7–14:2. Liu is a "native of China and of Asian heritage, nationality, and culture, who was educated in China before immigrating to the United States." Plaintiffs’ SOF ¶ 105 (cleaned up). In September 2017, after owning and operating several restaurants in Long Island, Asta and Liu decided to build Red Door on Las Olas Boulevard, in Fort Lauderdale. See Red Door Dep. at 15:7–17:13. They signed a lease to rent the space, and they hired an architect and a contractor (Joseph Dobos) to renovate it. See id. at 17:14–19:12. In November 2017, Dobos applied to the City for certain permits, which the City issued on January 23, 2018. See Defendants’ SOF ¶¶ 10–11; Plaintiffs’ SOF ¶¶ 10–11 (not disputing this point).

One of these permits was for a new kitchen hood—a piece of equipment that removes exhaust from the restaurant's kitchen. See Travers Decl. ¶ 5. The new kitchen hood was important because the "kitchen hood that was there was so old and outdated, and when they took it down we even seen that there was already timber that was already charred. Like, literally the place could have went on fire any time." Red Door Dep. at 29:12–30:2 (errors in original). So, to design and install the kitchen hood, Dobos hired an engineer (Raja Buchanan) who, in turn, worked with a company called Hood Depot. See Dobos Dep. at 9:2–10:21; see also Buchanan Dep. at 7:14–8:7. The kitchen hood was manufactured by CaptiveAire and was to be installed with insulation material from Owens Corning, a supply company. See Red Door Dep. at 51:14–52:20. The kitchen hood was a "zero clearance hood," which means that it was to be installed with no space (i.e. , "zero clearance") between the hood and any "combustible material" around it. See Dobos Dep. at 36:10–24. This design, as we're about to discover, caused major problems.

II. February–April 2018: The City's Initial Inspections

The City began inspecting Red Door in February 2018, shortly after construction on the restaurant began. And those inspections continued through May 2018. Here's a schedule of those inspections and what they uncovered:

Scheduled Date	Inspection Type	Sequence	Inspector	Result	Notes
February 2, 2018	Rough	1	879	"I"	Pending PDF for insulation used for 0" clearance for hood.
February 6, 2018	Rough	2	875	"C"	Cancel by contractor
February 8, 2018	Rough	3	879	"I"	Partial insulation inspection
February 21, 2018	Rough	4	878	"P"	No notes
February 26, 2018	Rough	5	877	"I"	Duct Rough Light Test Inspection Approved, At Kitchen Hood Type I Metal Exhaust Duct, Ready to Insulate.
March 6, 2018	Rough	6	878	"P"	No notes
April 17, 2018	Final	1	878	"F"	Need revision showing new current layout of equipment and one ad[d]itional nozzle. FBC 107.4.5.
May 7, 2018	Final	2	877	"F"	Not ready for inspection FBCM BCA 110.5. Also exhaust and plumbing roof vent shall be 10" away from mechanical intakes air (RTU and kitchen hood intake air) FBCM BCA 401.4/501.3.1(highlighted area on plans), Kitchen Hood Test/Balance/Performance Report Requested FBCM 507.16
May 8, 2018	Final	3	814	"C"	(1) 5/16/18
Final inspection result is changed to ‘cancel,’ per Building Official John Travers.

See Inspection Records (cleaned up).

The initial inspections on February 2 and 8, 2018, were conducted by both Gonzalez and Andres Vera, a City Mechanical Inspector who (at the time) was Gonzalez's subordinate. See Plaintiffs’ SOF ¶¶ 18–19.³ During those inspections, Vera saw "insulation material that [he] was not familiar with being used on the exterior of the zero-clearance kitchen hood[.]" Vera Decl. ¶¶ 5, 11. The Plaintiffs, for their part, deny using any improper insulation material and insist—albeit without much evidence—that Vera fabricated these observations as part of his efforts to facilitate Gonzalez's anti-Asian animus. See Plaintiffs’ SOF ¶¶ 20–25 (disputing Vera's contention that he conducted the inspections alone and rejecting the proposition "that there was any improper installation material"); see also Asta Decl. ¶ 9 ("Defendant Gonzalez directed numerous racial and cultural slurs against Mr. Liu in my presence, took impermissible and unwarranted official action against all of us because of his racial animus toward Mr. Liu, and ... attempted to use his official position to stymie, obstruct, and delay the opening of the Red Door. Gonzalez was present with Andres Vera and others from the City during the initial inspection.").⁴ Indeed, despite the fact that, "[o]n February 2, 8, and 21, 2018, inspections by the Fire Department, electrical inspectors, and other mandatory City inspectors passed the Red Door project for final inspection," Asta has claimed that Gonzalez "determined the Red Door failed the mechanical portion of the inspections due solely to his discriminatory animus toward us, because of Mr. Liu's Asian heritage." Asta Decl. ¶¶ 15–16.

But the inspections didn't end there. In March and April 2018, Gonzalez and Vera visited Red Door "to discuss the issue related to the [kitchen hood's] exterior insulation material" and, at these meetings, "harass[ed] and insult[ed] the owners of Red Door due to anti-Asian discrimination." Plaintiffs’ SOF ¶ 26. For two reasons, the Plaintiffs came to believe that they were being discriminated against. First , they had installed Red Door's kitchen hood according to the manufacturer's specifications and precisely as they had at other restaurants. See Dobos Dep. at 19:11–19 ("I got a phone call from Mr. Gonzalez stating that you guys retrofitted this hood and that it's all like a Mickey Mouse job or whatever. I said that's not the case. This is a hood that you buy. It's a $55,000 hood. Why would I want to mess with the insulation and putting the wrong insulation up[?] That's the way it's shipped."); see also Asta Decl. ¶ 18 ("We used and installed the same type of kitchen equipment and incorporated the same construction techniques for the Red Door as [we] did with [our] other successful restaurants, all of which were designed and approved by ... engineers and architects and were constructed according to applicable Code provisions.").

Second , and as we'll see in a moment, Gonzalez routinely offered offensive remarks about Liu's heritage and race. Gonzalez would "do[ ] little things with his eye," for example, and ask (rhetorically): "[W]hat does this chink know?" Red Door Dep. at 39:10–40:24. He would also wonder aloud: "[D]oes he [referring to Liu] even speak English?" and say that "he should go back to China, this isn't how we do things in America." Id. at 43:9–13. Gonzalez also "regularly expressed his disdain for Mr. Liu and Asians in general, spouting both direct and subtle racial comments," including:

(1) "What does this chink think he

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