Disser v. City of Tampa, Case No. 8:13-cv-885-T-24-EAJ

Decision Date31 July 2013
Docket NumberCase No. 8:13-cv-885-T-24-EAJ
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

This cause comes before the Court on Plaintiffs' Soho Saloon, LLC and Michael Disser motion to remand and for stay. [Doc. 11]. Defendants City of Tampa and Gloria Moreda oppose. [Doc. 13].1 Also before the Court is Defendants' motion to dismiss [Doc. 4], which Plaintiffs oppose [Doc. 12]. Defendants filed a motion to take judicial notice, [Doc. 5], to which Plaintiffs did not file a response.


Soho Saloon, LLC ("Saloon") and its registered agent, Michael Disser, bring this suit based on the denial of their application for a special use permit for an alcoholic beverages classification ("AB classification") by the City of Tampa ("City") and Gloria Moreda ("Moreda"), the City's zoning administrator. The Saloon is a bar or lounge located in an area known as the "SoHo District," which includes commercial establishments with AB classification permits allowing them to sell alcohol. [Doc. 2, ¶¶ 22, 35].

In October 2012, Plaintiffs submitted a special use permit application under chapter 27 of the City's Code of Ordinances ("Code") to change the Saloon's AB classification from a "2-COP" classification, which allows beer and wine sales, to a "4-COP-X" classification, which would allow the additional sale of liquor. [Id., ¶¶ 13, 16, 23].

There are two classes of special use permits. The "S-1" class of permit is required for "certain temporary uses and occupancies or where specified uses or characteristics of use could have adverse effects on adjacent properties." Code § 27-127(b)(1). The "S-2" class of permit is required "where specified uses or occupancies involve matters deemed to be of citywide or area-wide importance." Code § 27.127(b)(2). Different procedural requirements and specific criteria govern these classes of permits.

Plaintiffs originally submitted an application for an S-1 class of permit. [Doc. 2, ¶ 16]. Plaintiffs allege that Joel Sousa ("Sousa"), from the City's Planning and Development Department, and Moreda both made representations indicating that Plaintiffs' S-1 application would be approved with minor changes. [Id., ¶¶ 25-28, Appx. 417-28]. However, their application was later switched to and evaluated under the S-2 permit procedures. [Id., ¶ 17]. Plaintiffs allege they were without a practical alternative but to go along with the City's switch, spending time and money to revise their application and proceed under the S-2 application standards.

In preparation for a public hearing on Plaintiffs' application, Sousa sent the City Council a report stating that Plaintiffs' permit application was inconsistent with the Code. [Doc. 1, Appx. 121-29]. The report listed several necessary waivers, including waivers to reduce the minimum 1,000 feet distance separation between the Saloon and other AB classification establishments aswell as residential units and a waiver to reduce the required number of parking spaces from 35 to 17. [Id., Appx. 121].

The public hearing before the City Council on Plaintiffs' S-2 application was noticed and scheduled for January 24, 2013 ("first public hearing"). [Id., ¶ 30]. At the hearing, reports and testimony were presented, including residents' testimony about noise and parking concerns and a police officer's report and testimony about overburdened parking in the SoHo District. Plaintiffs allege that the evidence presented at the hearing established that 17 other establishments with AB classifications, 10 of which could sell liquor, were within 1,000 feet of the Saloon.

At the end of the first public hearing, a City Council member moved to deny Plaintiffs' application; this motion did not pass. [Id., ¶ 48]. Another City Council member then moved to approve Plaintiffs' application; this motion passed. [Id. , ¶¶ 49-50; Doc. 1, Appx. 84].

The City Council conducted a second public hearing on February 7, 2013. [Id., ¶¶ 49-50]. Plaintiffs allege the evidence presented at this hearing was the same evidence that was presented at the first public hearing, except for the addition of a police officer's report and testimony regarding alleged illegal activity occurring a few days prior at the Saloon. [Id., ¶ 53]. Plaintiffs allege that, despite the City Attorney's advice that the City Council could not base its denial of the application on alleged illegal activity, the City Council discussed the police officer's report and testimony. [Id., ¶¶ 55-64].

At the end of the second public hearing, the City Council member who had moved to deny Plaintiffs' application at the first public hearing again moved to deny the application for the same reasons. [Id., ¶ 73]. This time, the motion to deny passed. [Doc. 1, Appx. 413-14].

Based on these allegations, Plaintiffs filed a petition for writ of mandamus, petition for writ of certiorari, and two-count complaint in state court. [Doc. 2]. The mandamus petitionclaims Plaintiffs have a clear legal right to the permit under the Code and requests the Court compel Defendants to issue the permit. Plaintiffs' certiorari petition contends the City's quasi-judicial decision denying Plaintiffs' permit application was discriminatory, arbitrary, and based on irrelevant evidence. Count I of the complaint alleges a claim under Section 86.011, Florida Statutes, and seeks damages and a declaratory judgment that the City's actions violated Plaintiffs' vested rights under Florida law. In count II, Plaintiffs allege a claim under 42 U.S.C. § 1983 that the City's denial of Plaintiffs' application violated their equal protection and substantive due process rights under the United States Constitution. Plaintiffs seek damages and attorneys' fees.

Defendants removed this case to federal court, contending Plaintiffs' Section 1983 claim gives this Court federal question jurisdiction under 28 U.S.C. § 1331. [Doc. 1]. Defendants then filed a motion to dismiss and a motion for the Court to take judicial notice of DVDs of the City Council hearings. [Docs. 4, 6]. Plaintiffs filed a motion to remand and for stay, requesting the Court decline to exercise its supplemental jurisdiction over their state law claims and abstain from determining their Section 1983 claim. [Doc. 11].

A. Standard of Review

The Court has "supplemental jurisdiction over all claims that . . . form part of the same case or controversy." 28 U.S.C. § 1367(a). The Court may decline supplemental jurisdiction if: (1) the claim raises a novel or complex issue of state law; (2) the claim substantially predominates over the claims over which the district court has original jurisdiction; (3) the Court has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances. 28 U.S.C. § 1367(c); Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559,1569 (11th Cir. 1994). In determining whether to exercise its discretion to decline jurisdiction, the Court should consider factors such as "judicial economy, convenience, fairness to the parties, and whether all the claims would be expected to be tried together." Id.

B. Discussion

At the outset, the Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) over Plaintiffs' state law claims, because their state and federal claims stem from the same case and controversy—Defendants' denial of Plaintiffs' special use permit application. Plaintiffs make a number of arguments as to why the Court should decline to exercise its supplemental jurisdiction over their state claims.

Plaintiffs first contend the Court would not be able to grant the relief requested in Plaintiffs' mandamus petition because, under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), the Court is without jurisdiction to compel a state officer to act in accordance with state law. In Pennhurst, the United States Supreme Court held that the Eleventh Amendment bars a federal court from exercising jurisdiction—including pendant jurisdiction—over state law claims against states and state officials. Id. at 121. However, as Pennhurst notes, the Eleventh Amendment does not apply to municipal corporations. Id. at 123 n. 34; see also Tuveson v. Fla. Governor's Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir. 1984) ("Eleventh Amendment immunity does not extend to independent political entities, such as counties or municipalities."); Hufford v. Rodgers, 912 F.2d 1338, 1342 (11th Cir. 1990) (holding Eleventh Amendment does not bar suit against county official); Cooper v. Dillon, 403 F.3d 1208, 1221, n.8 (11th Cir. 2005). Because the City is a municipal corporation, the Eleventh Amendment does not bar the Court from exercising its supplemental jurisdiction over Plaintiffs' mandamus petition to compel Defendants to act according to state law.

Plaintiffs also contend the Court should decline supplemental jurisdiction because three Section 1367(c) factors exist: (1) their state law claims raise a novel or complex issue of state law, (2) their state law claims substantially predominate over their federal claim, and (3) there are exceptional and compelling reasons for declining jurisdiction.

First, Plaintiffs contend their state law claims raise novel or complex issues of state law because the Court must closely review the record of the City Council proceedings and apply state law to determine whether they are entitled to certiorari, mandamus, and declaratory relief. [Id. at 4-8]. Although the claims are governed by state law, they do not appear to present novel or complex state law issues. Nor is the Court incapable of reviewing the record of the City Council proceedings. Therefore, this factor does not weigh in favor of the Court declining to exercise its jurisdiction.

Second, Plaintiffs contend their state law claims substantially predominate over their Section 1983 claim. Citing to TMTB I, LLC v....

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