Daniel v. City of Tampa, Fla.

• Decision Date: 08 April 1993
• Docket Number: No. 92-838-CIV-T-17(B).,92-838-CIV-T-17(B).
• Citation: 818 F. Supp. 1491
• Parties: Anthony Mark DANIEL, Plaintiff, v. CITY OF TAMPA, FLORIDA, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

818 F. Supp. 1491

Anthony Mark DANIEL, Plaintiff, v. CITY OF TAMPA, FLORIDA, et al., Defendants.

No. 92-838-CIV-T-17(B).

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

April 8, 1993.

Matthew P. Farmer, Farmer & Fitzgerald, Tampa, FL, for plaintiff.

Peter Michael Walsh, Richard C. McCrea, Jr., Zinober & Burr, Kirby Collin Rainsberger, City of Tampa, Richard L. Gilmore, Morrison, Gilmore & Clark, Tampa, FL, for defendants.

ORDER ON REPORT AND RECOMMENDATION

KOVACHEVICH, District Judge.

This cause came to be heard before the Honorable Thomas G. Wilson, United States Magistrate Judge, on November 20, 1992, upon Plaintiff's Motion For Preliminary Injunction. Judge Wilson had the authority to hear this motion pursuant to 28 U.S.C. § 636(b)(1), and Rule 72 of the Federal Rules of Civil Procedure.

After considering all documents of record and the arguments of counsel, and being otherwise fully advised on the premises, Judge Wilson recommended that the Court ADOPT Plaintiff's Motion For Preliminary Injunction. Judge Wilson thereby recommended that the City be enjoined from arresting the Plaintiff under the trespass-after-warning statute, Fla.Stat. § 810.09 (1989), while he is engaged in door-to-door political expression between the hours of 7:00 A.M. and 9:00 P.M. in the College Hill and Ponce de Leon properties owned by the Tampa Housing Authority.

Pursuant to Rule 6.02, Rules of the United States District Court for the Middle District of Florida, the parties had ten (10) days after service to file written objection to the proposed findings and recommendation, or be barred from attacking the factual findings on appeal. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982) (en banc). Both parties have filed timely¹ objections with this Court.

This Court has reviewed the findings of fact set out in the REPORT and RECOMMENDATION. With respect to this review, this Court must make a de novo determination in accordance with the rules, after review of the specific written objections by the litigants. 28 U.S.C. § 636(b)(1); Rule 72(b) Fed.R.Civ.P.; United Steelworkers of Am., AFL-CIO v. New Jersey Zinc Co., Inc., 828 F.2d 1001, 1005 (3d Cir.1987). The District Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C).

FACTS

On November 20, 1992, Magistrate Wilson issued a report and recommendation which recommended that this Court approve a preliminary injunction for Plaintiff, Daniel. Plaintiff is a member of the National Peoples Democratic Uhuru Movement, a black rights organization that deals primarily with the abrogation of democratic and constitutional rights of poor and working class African people. Plaintiff wishes to espouse the viewpoints of this organization in the College Hill and Ponce de Leon public housing units of the Tampa Housing Authority.

However, College Hill and Ponce de Leon have a serious problem with drugs and other crimes. Significantly, much of the crime problem there is caused by people who do not live in the public housing areas. In order to combat the crime problem in the areas and the effects of the uninvited outsiders, the Housing Authority delegated to the Tampa Police Department its right to invoke Florida's trespass-after-warning provision, Fla. Stat. § 810.09 (1989). Florida Statute § 810.09 provides in pertinent part:

(1) Whoever, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance as to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in § 810.011, commits the offense of trespass on property other than a structure or conveyance.

(2)(a) ...

(b) If the offender defies an order to leave, personally communicated to him by the owner of the premises or by an authorized person, ... he is guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.

Pursuant to this statute the Tampa Housing Authority delegated to the Tampa Police Department the power to warn uninvited and unauthorized persons to leave the public housing areas, and if the individuals refuse to leave, arrest them for violating the statute.

Since May 1991, the Plaintiff has been charged three times with violating the trespass-after-warning provision.² However, Plaintiff argues that the enforcement scheme used to apply the trespass-after-warning statute is overbroad and violates the First Amendment rights of Housing Authority residents to receive communications. He further alleges that the enforcement scheme is vague and thus offends the Fourteenth Amendment's Due Process Clause. Plaintiff moves this Court to issue a Preliminary Injunction prohibiting the Defendants, and their agents, from arresting him while espousing his views on Tampa Housing Authority property.

Magistrate Wilson determined this issue on November 20, 1992. The Magistrate recommended that this Court approve a preliminary injunction, enjoining the Defendants, and their agents, from arresting the Plaintiff under the trespass-after-warning statute, Fla.Stat. § 810.09 (1989), based upon a warning issued by the police or the Housing Authority, while he is engaged in door-to-door political expression between the hours of 7:00 A.M. and 9:00 P.M. in the College Hill and Ponce de Leon properties owned by the Tampa Housing Authority.

STANDARD OF REVIEW

A preliminary injunction should only be entered when the moving party has sustained the burden of satisfying the following four-prong test: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest. Johnson v. United States Department of Agriculture, 734 F.2d 774, 781 (11th Cir.1984). However, the remedy is considered extraordinary and drastic. Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572-573 (5th Cir.1974).³ Therefore, if the plaintiff fails to meet any of the foregoing prerequisites the motion is properly denied. United States v. Jefferson County, 720 F.2d 1511, 1519-1520 n. 21 (11th Cir.1983).

OBJECTIONS

Both Defendants and Plaintiff filed objections to the Magistrate Judge's report and recommendation. Defendants object to the finding that the Plaintiff had satisfied the first two elements of the preliminary injunction test. Defendants argue that Plaintiff has failed to prove (1) that there is a substantial likelihood that the plaintiff will prevail on the merits, and (2) that there is a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted.

First, this Court will address Defendants' argument that Plaintiff has not proven a substantial likelihood of success on his First Amendment claim regarding his right to engage in door-to-door canvassing in public housing areas. The Court finds the Supreme Court decision in Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) most persuasive. In Martin v. Struthers the United States Supreme Court created a right to distribute and receive literature as protected by the First Amendment of the United States Constitution. Justice Black delivered the opinion that door to door distribution of circulars is essential to the poorly financed causes of little people. Id. 319 U.S. at 146, 63 S.Ct. at 865. Consequently, the Supreme Court held that the decision as to whether distributers of literature may lawfully call at a home belongs to the homeowner himself. Id., 319 U.S. at 148, 63 S.Ct. at 866. Defendants further argue that residents of the Ponce de Leon and College Hill areas are not "homeowners" and thus, not entitled to this constitutional right. However, this Court finds the Martin v. Struthers case precedent sufficient to find the Plaintiff has indeed demonstrated a substantial likelihood of success on this issue.

Defendants' second argument that Plaintiff has not proven a substantial threat of irreparable injury if the injunction is not granted is equally unconvincing. A violation of a First Amendment right cannot be remedied by money damages. Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir.1983). Accordingly, a plaintiff who has demonstrated a likelihood of success on a First Amendment claim has ordinarily established irreparable injury as well. Id. at 1188. An alleged constitutional infringement will often alone constitute irreparable harm sufficient to warrant granting of a preliminary injunction. Goldie's Bookstore, Inc. v. Superior Court of California, 739 F.2d 466, 472 (9th Cir.1984).

Plaintiff objects to several factual findings and legal conclusions of the Magistrate Judge. The following facts were set forth in the Report and Recommendation, and are specifically adopted by this Court:

1. Almost 90% of the people arrested at College Hill and Ponce de Leon are not...