Sweet Sage Café, LLC v. Town of N. Redington Beach

Decision Date29 March 2019
Docket NumberCase No. 8:18-cv-01080-T-02CPT
Citation380 F.Supp.3d 1209
Parties SWEET SAGE CAFÉ, LLC, John Messmore, Shermee, LLC, and SS16725, LLC, Plaintiffs, v. TOWN OF NORTH REDINGTON BEACH, FLORIDA, and Sheriff Bob Gualtieri in his official capacity as Pinnelas County Sheriff, Defendants.
CourtU.S. District Court — Middle District of Florida

Joseph P. Kenny, Timothy W. Weber, Weber, Crabb & Wein, PA, St. Petersburg, FL, for Plaintiffs.

Robert M. Eschenfelder, Jay Daigneault, Trask, Metz & Daigneault LLP, Clearwater, FL, for Defendants.



This case concerns alleged First Amendment retaliation through administrative code inspections and the constitutionality of a revised city ordinance authorizing such inspections. The matter comes to the Court on cross-motions for summary judgment from Plaintiffs, Dkt. 71, Defendant Town of North Redington Beach (the "Town"), Dkt. 73, and Defendant Sheriff Bob Gualtieri in his official capacity as Pinellas County Sheriff (the "Sheriff"), Dkt. 81. The parties have filed responses to the opposing motions. The Court GRANTS Plaintiffs' motion for partial summary judgment, GRANTS the Sheriff's motion, and GRANTS and DENIES in part the Town's motion.


Incorporated in 1953, the Town is a beachside community, one square mile in size, with approximately 1,427 full-time residents. Dkt. 82-6 at 48. A five-member Commission, including Mayor Queen, governs the Town. Id. at 53. The Town has four employees: Town Clerk Campbell, Deputy Clerk Schmader, Public Works Projects employee Lewis, and a groundskeeper. Id. at 48. Since 2013, the law firm Trask Daigneault has been "the retained Town Attorney," and Jay Daigneault of the firm has been appointed as the Town Attorney. Dkt. 82-8 at 3.

Plaintiff Sweet Sage Café, LLC ("Sweet Sage") operates a restaurant named Sweet Sage Café (the "Café") in the Town. Dkt. 56 at ¶ 3. Plaintiff Messmore owns and manages the Café with his wife. Id. The Café, which closes at 2:00 p.m., offers breakfast and lunch in a "casual Florida beach-themed setting." Id. It also features a gift shop. Dkt. 82-4 at 2.

The Café displayed various signs outside, including some for which Sweet Sage was issued a Notice of Violation (NOV) of a sign ordinance. Complaint, Sweet Sage Cafe, LLC v. Town of N. Redington Beach, Florida , 8:15-CV-2576-T-30JSS (M.D. Fla. Nov. 2, 2015), ECF: 1 at 3, 9. In November 2015, Sweet Sage sought a declaration that the Town's sign ordinance, adopted in June 2015, violated the First Amendment. Id. at 9. On January 27, 2017, the district court entered summary judgment, agreeing that the ordinance was unconstitutional. Sweet Sage Café v. Town of North Redington Beach, Florida , LLC , 2017 WL 385756, at *1 (M.D. Fla. Jan. 27, 2017).

Sweet Sage has contested other Town ordinances as well. To confront its shortage of public parking, the Town has an off-street parking ordinance, Ordinance 2009-685, that requires at least one parking space for every four seats in an establishment. Dkt. 73-8 at 2-3. Before 2009, one space was required for every three seats. Id. ; Dkt. 82-6 at 66. The new ordinance grandfathered the number of nonconforming seats as of September 10, 2009 but did not allow additional seats without additional on-site parking. Dkt. 73-8 at 3. To determine the grandfathered numbers, the Town's former code enforcement officer, Mr. Lewis, counted seats at the existing bars, lounges, and restaurants. Dkt. 82-6 at 67. The Town Clerk created a typed chart from the handwritten results, which was then included as an attachment to the ordinance. Id. at 18-20, 68. Mr. Lewis, along with Mr. Messmore, counted 61 seats at the Café. Dkt. 82-1 at 22.

In 2016, the Town contracted with the Sheriff to enforce code violations, including the parking ordinance. Dkt. 56-1. Deputy Clerk Schmader serves as the secretary for code enforcement, which includes typing up forms for the officer and taking and forwarding complaints. Dkt. 84-1 at 12. Beginning in July 2016, Deputy Joshua Short was the Town's code enforcement officer. Dkt. 82-3 at 2. In March or April 2017, Corporal Chris Kohmann assumed code enforcement duties for the Town. Dkt. 82-2 at 2.

The code enforcement officer exercises some discretion in enforcing code violations. For example, only the officer is authorized to determine that a code violation has occurred and to issue a NOV. Dkt. 84-1 at 3, 25. The officer also determines the method by which notice is served, the length of time for compliance before the case is set for an enforcement hearing before the Special Magistrate, and whether compliance is met upon re-inspection. Dkt. 84-1 at 6. Deputy Short and Corporal Kohmann have visited the Café a number of times to assess compliance with the parking ordinance.

To apply for an annual business tax receipt (basically a business permit) from the Town, a restaurant, bar, or lounge must list its number of seats on the application. Dkt. 56-4 at 3. There is also an annual inspection. Dkt. 84-1 at 12. For seat counts at grandfathered establishments, Deputy Clerk Schmader gives the code enforcement officer a copy of the parking ordinance and "a copy of their business tax receipts to go to every restaurant." Id. at 12-13. Until the most recent application, since 2010 Mr. Messmore had attested on his business tax receipt applications that the Café has 61 seats, Dkt. 74-4 at 2-12, and had been issued an occupational license for the same, Dkt. 75-1 at 9-17.

A Special Magistrate hearing followed an April 19, 2018 NOV issued to the Café for noncompliance with the parking ordinance. Dkt. 75-2. On May 29, 2018, the Magistrate found that the Town failed to prove that the Café had exceeded its designated 61 seats. Id. at 14. The order "noted that nothing in the Town ... Code ... specifies a formula for calculating the number of seats based on the length of a bench seat." Id. at 10-11. In response, the Town adopted Ordinance 2018-801, which did not alter the grandfathered seating allotments. Dkt. 75-3; Dkt. 82-6 at 30-31; Dkt. 82-8 at 12-13. As represented by counsel at oral argument, litigation concerning the Town's parking ordinance is ongoing in the Florida state courts.

In 2016 Mr. Messmore, through Plaintiff Shermee, LLC, purchased a vacant lot approximately 150 feet north of the Café. Dkt. 82-5 at 14. He hoped to use the property as off-site parking for Café customers. Id. ; Dkt. 82-4 at 5. "[H]e said that after 2:00 when [the Café] closed, then anybody could use it to park there to go to the beach. It was definitely for Sweet Sage up until 2:00 when they closed." Dkt. 82-6 at 65.

The Town's zoning code, however, did not allow parking as a primary use of property at the location. Dkt. 83-1 at 2. Mr. Messmore sought to rezone the lot. Id. at 6. The Town directed Mr. Messmore to section 98-3 of the Town Code, noting "You may want to check with your attorney for procedural steps." Id. At a November 10, 2016 Commission meeting, Mr. Messmore presented materials in support of the rezoning. Id. at 20. According to a memorandum by the Town Attorney, no action was required based on the presentation.1 Id. at 18-19. The Mayor scheduled a workshop for January 5, 2017 to discuss the proposal. Id. at 30.

At the workshop, the Commission conditioned the rezoning of the property on Mr. Messmore not adding "statuary, trellis[es], art or anything that draws attention to the parking area" to the lot. Dkt. 83-1 at 41. Mr. Messmore returned to the Commission on January 12, 2017 with paperwork including a draft of a rewritten ordinance. Id. at 42; Dkt. 82-6 at 59. The Mayor initially scheduled another workshop for February 7, 2017 that was later canceled. Dkt. 82-6 at 28. "[A]s the Commissioners came in and said, what's the workshop about and [Town Clerk Campbell] told them, they were like, why are we doing this, he's already said he doesn't agree to [the conditions] and he's already showed us at the last meeting he doesn't agree to it. So, they didn't want to do [another workshop]." Id. at 59-60.

Mr. Messmore abandoned the parking lot proposal and sought to build a new business on the lot called the Sugar Shack. Dkt. 82-6 at 62-63. This required two variances and the approval of a site plan, which was eventually completed. Id. at 63-64. The Commission approved the site plan with conditions, and Mr. Messmore has begun construction. Dkt. 82-5 at 14-15.


On May 3, 2018, Plaintiffs filed their original complaint for First Amendment retaliation against the Town and unreasonable search and seizure against the Town and Sheriff. Dkt. 1 at 7-8. The next day Plaintiffs sent a letter to the Town advising it that officers could no longer enter the Café to conduct code enforcement inspections without a lawfully issued warrant. Dkt. 75-4 at 18. On May 10, 2018, the Town Attorney responded with a letter stating the Town's Business Tax Code permitted the officers to enter without a warrant. Dkt. 56-2. In response, Plaintiffs amended their complaint to challenge the constitutionality of the warrantless search provisions of the Business Tax Code. Dkt. 23 at 12. Plaintiffs also added a state law trespass claim against the Town and the Sheriff. Dkt. 23 at 14.

On October 11, 2018, the Town adopted Ordinance 2018-804 which amended the Town's Business Tax Code. Dkt. 75-4 at 2-11.

According to the Town, the amendment's purpose was to address the warrantless inspection provisions subjected to constitutional challenge. Dkt. 82-8 at 32. The amendment authorizes, among others things, warrantless administrative inspections of businesses:

[e]ngaged in a closely-regulated industry and where the inspector has a reasonable good faith belief, based upon a record of non-compliance or other verifiable evidence of probable non-compliance to include citizen complaints, that providing advance notice of the inspection may allow the business to conceal the code violation which is the subject of the inspection.

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