Abusaid v. Hillsborough County Bd.
| Decision Date | 06 September 2007 |
| Docket Number | Case No. 8:03-cv-904-T-23TBM. |
| Parties | Elias (Lou) ABUSAID, Jr., Plaintiff, v. HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS; Hillsborough County Fire Marshal's Office; Board of County Commissioners of Hillsborough County; Hillsborough County Sheriff's Office, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Elias Abusaid, Jr., Coleman, FL, pro se.
Stephen M. Todd, Hillsborough County Attorney's Office, Tampa, FL, for Defendants.
THIS MATTER is before the court1 on Defendant Hillsborough County Board of County Commissioners, Hillsborough County Fire Marshal's Office and Board of County Commissioners' Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. 66) (Rules 12(b) (1) and 12(b)(6), Fed.R.Civ.P.) (Doc. 67) and Defendant's, Hillsborough County Sheriff's Office, Dispositive Motion to Dismiss Plaintiff's Third Amended Complaint Pursuant to Rule 12(b), Fed.R.Civ.P. (Doc. 68) and Plaintiff's responses in opposition (Docs. 72, 71, respectively). In response to this court's Order (Doc. 95) of January 5, 2007, the parties submitted supplemental briefs in support of their respective positions. See (Docs. 98, 99).
Also before the court are Defendants Hillsborough County Board of County Commissioners, Hillsborough County Fire Marshal's Office and Board of County Commissioners' Joint Motion for Summary Judgment (Doc. 88) and Plaintiff's response (Doc. 92); Defendant's Dispositive Motion for Summary Judgment Pursuant to Rule 56, Federal Rules of Civil Procedure (Doc. 89) and Plaintiff's response (Doc. 96); and Plaintiff's Re-Application for Declaratory Judgment or in the Alternative Review as a [Partial] Motion for Summary Judgment (Doc. 90) and Defendants' responses (Doc. 94, 97). On May 23, 2007, this court entered an Order (Doc. 100) sua sponte directing Plaintiff and the County to address in supplemental memoranda the Plaintiff's claims that the permitting provisions of the Ordinance constitute an impermissible prior restraint. Plaintiff and the County complied by filing supplemental memoranda on this issue. See (Docs. 101, 103).2
Many of the pertinent facts are undisputed. Plaintiff Elias (Lou) Abusaid, Jr. ("Plaintiff" or "Abusaid") was a resident of Hillsborough County, Florida, through 2005.3 He holds himself out to be in the entertainment, promotional, night club, private club, and bottle club business. On or about November 23, 1999, Plaintiff entered into a lease agreement with Mr. Joseph M. Raymer ("Landlord") for the purpose of opening and operating a "Late Night Club," located at 5226 Gunn Highway, in Tampa, Florida. Abusaid maintains that according to the Landlord, the property was at the time permitted for alcohol sale and consumption. On or about November 30, 1999, Plaintiff obtained an occupational license from the County for the operation of an "Unclassified—Bottle Club/Private Club/Social Club." See (Doc. 66-3 at 1). Thereafter, he opened a club at that address known as "AV-02 Bottle Club."
Plaintiff identifies the Defendants as Hillsborough County, the Hillsborough County Board of County Commissioners and the Hillsborough County Fire Marshal's Office (collectively, "the County") and the Hillsborough County Sheriff's Office ("Sheriff"). In or about November 1999, the County enacted the Hillsborough County Rave/Dance Hall Permitting Ordinance ("Ordinance"), which regulates the permitting and operations of the rave/dance hall industry. Generally, the Ordinance dictates that no person may operate a rave/dance hall unless he has obtained a permit, and certain applicants are banned from obtaining a permit. Hillsborough County, Fla., Ordinance No. 99-21 §§ 4(a), 5(b) (1999).4 Buildings housing such establishments must comply with the County's fire and land development codes. Id. at § 8(b), (c). Furthermore, the Ordinance imposes operational restrictions on such establishments, such as enforcing a curfew on individuals between the ages of eighteen and twenty-one. Id. § 7(d), (e). The Ordinance also contains provisions for the suspension and revocation of licenses and imposes certain civil and criminal penalties for violation of the provisions of the Ordinance. Id. at §§ 12, 13, 16.
On June 3, 2000, Plaintiff was arrested on charges of being a Felon in Possession of a firearm, violation of the Ordinance, violation of the Hillsborough County Ordinance for Operating a Bottle Club without a License, and the Sale of Alcohol without a License. Plaintiff posted bail and was released pending a court hearing.
On or around June 5, 2000, the Landlord, allegedly under pressure from the County, informed Plaintiff that the county zoning department threatened to impose a daily fine upon him if he did not seek to evict Plaintiff from the property. Landlord allegedly agreed not to commence eviction proceedings if Plaintiff agreed to purchase the property, but Plaintiff declined to do so. Subsequently, the Landlord filed an eviction action. After a hearing on June 27, 2000, a county judge ordered Plaintiff to surrender the premises within forty-eight hours. Allegedly, an assistant county attorney appeared and spoke in favor of the eviction.
On June 9, 2000, Plaintiff was arrested again, was charged with a new violation of the Ordinance, and again posted a bond. According to Plaintiff, the Fire Marshal imposed a "Cease and Assist [Desist] Order" upon Plaintiff's business, in effect closing his business until costly alterations were made to the building.
On June 10, 2000, Plaintiff was again arrested and charged with another violation of the Ordinance and was given a notice to appear in court.
Plaintiff alleges that on June 16, 2000, a Hillsborough County Circuit Judge "imposed an arrest warrant with a $50,000 bail bond upon Plaintiff, for an alleged violation of the Ordinance. . . ." The following day, he was arrested on the warrant at his place of business. Thereafter, he was released on the $50,000 bond. On or around July 31, 2000, the Hillsborough County State Attorney's Office informed Plaintiff that his June 17 charge was dismissed.
Plaintiff further alleges that on June 19, 2000, Sheriff's deputies drove their cars onto his premises and harassed employees and patrons, threatening them with arrest if they entered the club.
Allegedly at the behest of the County, the Hillsborough County State Attorney's Office filed a motion to revoke the Plaintiff's pretrial release based on these Ordinance violations. On June 21, 2000, Plaintiff appeared before the court pro se. By Order dated June 22, 2000, the court denied the state's motion and allowed the Plaintiff to continue operating his business.
On or about September 11, 2000, Plaintiff represented himself pro se in three separate jury trials for offenses arising from his arrests on June 3, 2000; June 9, 2000; and June 10, 2000. On September 25, 2000, Plaintiff was sentenced on all three cases.5
On November 16, 2000, Plaintiff was sentenced to a 60-day jail sentence on a new violation of the dance hall ordinance and ordered to undergo a psychological evaluation. Plaintiff qualified for and completed the Hillsborough County Jail's "house arrest" program. However, on or around March 12, 2001, Plaintiff's probation officer filed an affidavit for Plaintiff's arrest for his failure to undergo the psychological evaluation. Thereafter, in June 2001, Plaintiff's probation was revoked, and he was sentenced to thirty days in the county jail for failing to undergo a psychological evaluation.
In addition, Plaintiff alleges that in mid-May 2001, Sheriff's deputies entered his home late at night and conducted an aggressive search of the home.
Plaintiff further alleges that as a consequence of these enforcement activities, by mid-2001, he could no longer earn an income or maintain his contractual obligations. He maintains that his credit has been ruined.
Plaintiff initiated this action by filing a four-count Complaint (Doc. 1) on May 13, 2003. Defendants filed a motion to dismiss (Doc. 5) the Complaint for failure to state a claim. The court granted the motion and dismissed the Complaint with leave to file an amended complaint. See (Doc. 10).
Plaintiff then filed a seventeen-count First Amended Complaint (Doc. 14). Defendants filed a motion to dismiss (Doc. 15). The court entered an Order (Doc. 23) granting the motion and dismissing the First Amended Complaint, again with leave to amend.6
On October 7, 2003, Plaintiff filed a Second Amended Complaint (Doc. 24) containing eighteen counts. Upon motions to dismiss filed by the Defendants, the court again dismissed Plaintiff's complaint.7 Plaintiff appealed. See (Doc. 35).
The Eleventh Circuit issued a Mandate (Doc. 50) on August 8, 2005, reversing the district court's dismissal and remanding this action. See Abusaid v. Hillsborough County Bd. of County Comm'rs, 405 F.3d 1298 (11th Cir.2005). Among other things, the Eleventh Circuit held that the court erred in dismissing the claims against the Sheriff based on the State's Eleventh Amendment immunity from suit and against the County based on Eleventh Amendment immunity and Florida state law sovereign immunity. See id. at 1313-14, 1315. The opinion included a lengthy footnote concerning the import of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), to this case. The court noted that it had raised the Heck issue sua sponte and requested briefing on the issue by the parties; however, the court left the issue to be considered by this court if properly raised by any party on remand. See id. at 1315, n. 9.
Following remand, with leave of court, Plaintiff filed a Third Verified Amended Complaint (Doc. 66). In Counts One through Ten of the Third Verified Amended Complaint ("Complaint"), Plaintiff alleges that the Ordinance is invalid because:...
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