Avalon Carriage Service v. City of St. Augustine, 3:04 CV 1126 J 16MCR.

• Decision Date: 23 February 2006
• Docket Number: No. 3:04 CV 1126 J 16MCR.,3:04 CV 1126 J 16MCR.
• Parties: AVALON CARRIAGE SERVICE INC., Plaintiff, v. CITY OF ST. AUGUSTINE, FLORIDA, a municipal corporation organized under the laws of the State of Florida, Mark Litzinger, in his individual capacity, William Harriss, in his individual capacity, Stuart Gamsey, individually, Gamsey Carriage Company, Inc., a Florida Corporation, Gam San Enterprises, Inc., a Florida Corporation and Spirit of St. Augustine, Inc., a Florida Corporation, Defendants.
• Court: U.S. District Court — Middle District of Florida

417 F.Supp.2d 1279

AVALON CARRIAGE SERVICE INC., Plaintiff, v. CITY OF ST. AUGUSTINE, FLORIDA, a municipal corporation organized under the laws of the State of Florida, Mark Litzinger, in his individual capacity, William Harriss, in his individual capacity, Stuart Gamsey, individually, Gamsey Carriage Company, Inc., a Florida Corporation, Gam San Enterprises, Inc., a Florida Corporation and Spirit of St. Augustine, Inc., a Florida Corporation, Defendants.

No. 3:04 CV 1126 J 16MCR.

United States District Court, M.D. Florida.

February 23, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul Michael Meredith, The Meredith Law Firm, St. Augustine, FL, for Plaintiff.

Sonya Harrell Hoener, Victor M. Halbach, Jr., Marks, Gray, P.A., J. Cameron Story, III, Akerman Senterfitt, PA, Jacksonville, FL, Tiffiny Douglas Safi, George E. Ridge, Cooper, Ridge & Lantinberg, P.A., Jacksonville, FL, for Defendants.

ORDER

JOHN H. MOORE, II, Senior District Judge.

Before the Court are Defendants Stuart Gamsey, Gamsey Carriage Company, Inc., Gam San Enterprises, Inc., and Spirit of St. Augustine, Inc. ("Gamsey Defendants") Motion for Summary Judgment and attached memorandum (Dkts. 101, 118), Defendants Mark Litzinger and William Harriss, in their individual capacity, Motion for Partial Summary Judgment and attached memorandum (Dkts. 104, 109) and Defendants City of St. Augustine, William Harriss and Mark Litzinger ("City Defendants") Motion for Summary Judgment and memorandum in support (Dkts. 114, 117). Multiple exhibits were attached by all parties and the Plaintiff filed Memoranda in Opposition (Dkts. 146-147, 149).

I. Procedural Posture

On October 20, 2004, Plaintiff Avalon Carriage Service, Inc. filed a Civil Action by Verified Complaint for Deprivation of Civil Rights and Antitrust Violations Seeking Injunctive Relief and Damages and Demand for Jury Trial (Dkt. 1). The Complaint alleges civil rights violations pursuant to 42 U.S.C. § 1983 (Count I), antitrust violations under 15 U.S.C. § 2 (Count II) and Florida antitrust violations of Chapter 542.19, Florida Statutes (Count III). The Plaintiff is also seeking at least $1.9 million in damages for the civil rights violations, $5.6 million for the antitrust violations as well as treble and punitive damages, injunctive relief, attorney's fees and costs.

In late November and early December 2004, Defendants filed Motions to Dismiss (Dkts. 16, 18). On January 13, 2005, the Court entered an Order denying these Motions (Dkt. 24). All Defendants now move for Summary Judgment and the Court will examine each Defendants arguments in turn.

II. Background

Plaintiff is a Florida corporation operating two horse drawn carriages ("HDC") within the city limits of St. Augustine, Florida. According to Defendant City of St. Augustine's code of ordinances, a permit is required to operate a HDC. See St. Augustine Code, Art. 5, § 27. The number of available permits, however, was capped at forty-six by the St. Augustine City Commission ("City Commission") in 1988. Id. § 27-159(a). Plaintiff currently holds or controls only two of the forty-six permits. Plaintiff provides that in July 1996, Defendant City of St. Augustine approved the transfer of thirty-seven horse carriage permits to the Gamsey Defendants. This transfer gave the Gamsey Defendants' control of forty-four out of forty-six permits.¹ Plaintiff therefore alleges the Gamsey Defendants control ninety-six percent of the carriage business in St. Augustine. Despite controlling forty-four permits, however, the Gamsey Defendants allegedly only operate sixteen carriages while annually renewing the other twenty-eight "unused" permits (Dkt. 1, ¶¶ 16-17). Plaintiff alleges this situation has prevented it from "expanding its business by acquiring additional permits and competing" in the HDC market (Dkt. 1, ¶ 6).

Plaintiff specifically alleges that over the past fifteen years it has applied to the City Commission for additional regular and special horse carriage permits, but that each application has been denied. Plaintiff contends its inability to obtain more permits is due to the forty-six permit cap set forth in the code of ordinances as well as the rules promulgated by Defendant Harriss, as the City Manager, and Defendant Litzinger, as Director of Financial Services. Indeed, Plaintiff alleges that from "at least 2000 to the present, the City Commission, under the color of law, by custom and practice, tacitly and expressly approved the adoption of arbitrary and capricious rules promulgated by [Defendant Harriss] and [Defendant Litzinger] governing the horse carriage trade that were in violation of its own code of ordinances and federal and state laws prohibiting monopolies." (Dkt. 1, ¶ 11). Plaintiff provides that while the permits are not considered property under the language in the ordinances, Defendant City of St. Augustine has suggested Gamsey Defendants sell some of the unused permits for as much as $40,000.00 each. Id. ¶ 19.

Accordingly, Plaintiff's Complaint alleges the Defendants violated the rights afforded to Plaintiff pursuant to the Equal Protection Clause of the Fourteenth Amendment (Count I-(a)) and the Commerce Clause (Count I-(b)) in the U.S. Constitution, monopolized and conspired to monopolize in violation of Section 2 of the Sherman Act (Count II) as well as violating Florida antitrust laws (Count III).

III. Standard of Review

The Court should grant a motion for summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact [such] that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987); Edwards v. Acadia Realty Trust, Inc., 141 F.Supp.2d 1340, 1344-45 (M.D.Fla.2001). The Court will construe the record and all inferences that can be drawn from it in the light most favorable to the nonmoving party, and the moving party bears the initial burden of establishing the absence of a genuine material fact. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Samples on Behalf of Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). Once this burden is met, however, the opposing party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. The Eleventh Circuit explained in Samples that the opposing party need only present evidence from which a jury might return a verdict in its favor in order to survive the moving party's motion for summary judgment. See Samples, 846 F.2d at 1330; see also Augusta Iron & Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988).

Notably, the Supreme Court pointed out in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), that the moving party's burden only extends to facts that might affect the outcome of the lawsuit under the governing law, as "[f]actual disputes that are irrelevant or unnecessary will not be counted." Summary judgment will only be granted if all facts and inferences point overwhelmingly in favor of the moving party, such that a responsible jury could not find in favor of the opposing party. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). If there is conflicting evidence that will permit differing reasonable inferences, the case will be submitted to the jury. See Augusta Iron & Steel, 835 F.2d at 856.

IV. Discussion

A. The City Defendants' Arguments

The City Defendants argue summary judgment is appropriate as to the Equal Protection and Commerce Clause claims (Count I(a)(b)) under 42 U.S.C. § 1983 as the Plaintiff is unable to prove a deprivation of its constitutional rights. The City Defendants subsequently address the antitrust claims (Counts II-III).

i. Equal Protection Claims

The City Defendants contend to the extent Plaintiff is alleging an equal protection claim that the City Defendants promulgated and adopted arbitrary and capricious rules regarding the hack stands or the renewal of permits, the record does not support such an allegation. Moreover, that if the equal protection claim is based on the ordinance regulating horse-drawn carriages ("HDC") and the hack stand, and not the allegedly promulgated "imaginary rules" referenced in the Complaint, the ordinance on its face is not discriminatory as it "provides the same opportunity to all HDCs to compete for the limited number of permits on the open market." (Dkt. 117 at 5-6). City Defendants further argue that if Plaintiff is claiming the facially neutral ordinance governing HDCs was unequally applied, Plaintiff must show intentional discrimination. See E&T Realty v. Strickland, 830 F.2d 1107, 1112-1114 (11th Cir.1987); Baggs v. City of South Pasadena, 947 F.Supp. 1580, 1584 (M.D.Fla.1996). As there is no evidence City Defendants acted with discriminatory intent, City Defendants assert summary judgment is proper.

Plaintiff responds that its equal protection claim is not a facial challenge to a St. Augustine City ordinance, but is instead a challenge to the constitutionality "of the unwritten long standing municipal practice and custom by the City Defendants in the application of City ordinances wherein the City has assisted Gamsey in the renewal of unused permits not for the purpose of Gamsey using them by placing more horse drawn carriages into service as contemplated by City ordinance, but for the illegitimate purpose of denying other similarly situated persons such as Avalon from the same privileges under the City ordinance and to allow...