997 F.Supp. 1481 (M.D.Fla. 1998), 97-2058-CIV-T-17, American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County

Docket Nº:97-2058-CIV-T-17B.
Citation:997 F.Supp. 1481
Party Name:AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC., the Creative Advantage, Inc., and Norman W. Leahy, Plaintiffs, v. PINELLAS COUNTY, a political subdivision of the State of Florida, Nugent Walsh, as chairperson of the Charitable Solicitations Board of Pinellas County, and Sheryl Lord, as Director of Consumer Protection of Pinellas Cou
Case Date:April 15, 1998
Court:United States District Courts, 11th Circuit, Middle District of Florida

Page 1481

997 F.Supp. 1481 (M.D.Fla. 1998)

AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC., the Creative Advantage, Inc., and Norman W. Leahy, Plaintiffs,

v.

PINELLAS COUNTY, a political subdivision of the State of Florida, Nugent Walsh, as chairperson of the Charitable Solicitations Board of Pinellas County, and Sheryl Lord, as Director of Consumer Protection of Pinellas County, Defendants.

No. 97-2058-CIV-T-17B.

United States District Court, M.D. Florida, Tampa Division.

April 15, 1998

Alison M. Steele, George Karl Rahdert, Rahdert & Anderson, Cynthia L. Hain, Rahdert, Anderson, McGowan & Steele, P.A., St. Petersburg, FL, Clifford Perlman, Seth Perlman, Perlman & Perlman, New York, NY, Geoffrey W. Peters, Law Office of Geoffrey W. Peters, Vienna, VA, for Plaintiffs.

Carl E. Brody, Jr., Pinellas County Attorney's Office, Clearwater, FL, for Defendants.

Page 1482

ORDER ON DEFENDANTS' MOTION TO DISMISS

KOVACHEVICH, Chief Judge.

This cause previously came before the Court on a motion to dismiss the complaint (Docket No. 13), with attachments (Docket No. 19), filed by Defendants, PINELLAS COUNTY, a political subdivision of the State of Florida (hereinafter County), NUGENT WALSH, as chairperson of the Charitable Solicitations Board of Pinellas County (hereinafter Walsh), and SHERYL LORD, as Director of Consumer Protection of Pinellas County (hereinafter Lord). Plaintiffs, AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC. (hereinafter American), THE CREATIVE ADVANTAGE, INC. (hereinafter Creative), and NORMAN W. LEAHY (hereinafter Leahy), filed a responsive memorandum, with attachments (Docket No. 16). This Court denied Defendants' motion to dismiss as to Defendants WALSH and LORD in its Order dated March 4, 1998 (Docket No. 24). At that time, the Court deferred ruling on the issue of whether Defendant, PINELLAS COUNTY, is entitled to Eleventh Amendment Immunity, and directed the parties to submit briefs to the Court on that issue.

I. BACKGROUND

Plaintiffs brought this case under 42. U.S.C. § 1983, alleging that the Defendants deprived them of their constitutional rights within the meaning of that statute. Their claims are based on an ordinance adopted by Pinellas County concerning the solicitations of charitable contributions. Plaintiffs sought declaratory and injunctive relief from enforcement of the ordinance, as well as attorney's fees.

Defendant, Pinellas County, moved to dismiss Plaintiffs' complaint on two grounds. First, that the Eleventh Amendment of the United States Constitution acts as a jurisdictional bar to the Court's review of this matter pursuant Rule 12(b)(2) of the Federal Rules of Civil Procedure. Second, that Plaintiffs bear the burden of proving that the County is not acting as a proxy for the state.

II. STANDARD OF REVIEW

In deciding a motion to dismiss, this Court will examine only the four (4) corners of the complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla.1995). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiffs can prove no set of facts that would entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Additionally, in ruling on a motion to dismiss, a trial court is required to view the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995).

III. DISCUSSION

A. Eleventh Amendment

Defendant, Pinellas County, contends that this Court should dismiss Plaintiffs' complaint because the Eleventh Amendment of the United States Constitution acts as a jurisdictional bar to this Court's review of the matter pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Defendant Pinellas County further contends that the Eleventh Amendment should bar the suit brought by Plaintiffs because the county is acting in stead of the state in the regulation of charitable solicitations, pursuant to Section 2.04(o), Pinellas County Charter, Laws of Florida, Chapter 88-458, § 1, Resolution No. 88-496, 12-6-88. However, Plaintiffs have alleged in their Complaint that the Pinellas County Ordinance does not replace legislation by the state concerning charitable solicitations, but instead it acts concurrently with the state legislation as a separate regulation.

This Court in its previous Order dated March 4, 1998 (Docket No. 24), set forth those factors from Hufford v. Rodgers, 912 F.2d 1338, 1341 (11th Cir. 1990), that it deemed to be dispositive on the issue of whether Defendant Pinellas County was acting on behalf of the state and, therefore, entitled to Eleventh Amendment immunity. This Court has reviewed all the evidence

Page 1483

presented by both parties, including case law, and applies the facts to these four factors.

The first factor is how state law defines the entity. Id. This Court is not persuaded by the Defendant's argument on this point, but instead finds the Plaintiffs' reasoning to be more persuasive. The Florida Constitution Art. VIII, Sec. 1 provides that: "[t]he state shall be divided by law into political subdivisions called counties." Defendant Pinellas County is a charter county, and as such, it "shall have all power of local self-government not inconsistent with general law, or with special law." FLA. CONST. art. VIII, § 1(g).

Defendant misapplies the holding in City of Hialeah v. Martinez, 402 So.2d 602 (Fla.3d Dist.Ct.App.1981) to the facts of the present case. In City of Hialeah, the court held that if a special law is in conflict with a general law, then the general law supersedes the special law. See id. at 605. The operative words of the court's holding are "in conflict with." That is not the situation in the present case. The State of Florida has adopted a regulatory scheme for the regulation of the solicitation of charitable...

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2 practice notes
  • 275 B.R. 408 (Bkrtcy.M.D.Fla. 2002), 00-11194, In re Polygraphex Systems, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • March 25, 2002
    ...does not transform it into an arm of the state. American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 997 F.Supp. 1481, 1484 In conclusion, there is ample evidence of the Property Appraiser's fiscal autonomy. (d) Funds to Satisfy Judgment. In this case, we are n......
  • Salerno v. Auto Owners Ins. Co., 110205 FLMDC, 8:04-cv-1056-T-24 MAP
    • United States
    • Federal Cases United States District Courts 11th Circuit Middle District of Florida
    • November 2, 2005
    ...confined to the four corners of the complaint. See American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County , 997 F.Supp. 1481, 1482 (M.D. Fla. 1998)(citation omitted). Therefore, the Court rejects Defendants' argument on this issue, as it should be made in a motion......
2 cases
  • 275 B.R. 408 (Bkrtcy.M.D.Fla. 2002), 00-11194, In re Polygraphex Systems, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • March 25, 2002
    ...does not transform it into an arm of the state. American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 997 F.Supp. 1481, 1484 In conclusion, there is ample evidence of the Property Appraiser's fiscal autonomy. (d) Funds to Satisfy Judgment. In this case, we are n......
  • Salerno v. Auto Owners Ins. Co., 110205 FLMDC, 8:04-cv-1056-T-24 MAP
    • United States
    • Federal Cases United States District Courts 11th Circuit Middle District of Florida
    • November 2, 2005
    ...confined to the four corners of the complaint. See American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County , 997 F.Supp. 1481, 1482 (M.D. Fla. 1998)(citation omitted). Therefore, the Court rejects Defendants' argument on this issue, as it should be made in a motion......