Hollywood Comm. Synag. v. City of Hollywood, Fl, 04-61212-CIV.

• Decision Date: 10 May 2006
• Docket Number: No. 04-61212-CIV.,No. 05-60687CIV.,04-61212-CIV.,05-60687CIV.
• Citation: 430 F.Supp.2d 1296
• Parties: HOLLYWOOD COMMUNITY SYNAGOGUE, INC. Plaintiff, v. CITY OF HOLLYWOOD, Florida and Sal Oliveri, individually, Defendants. United States of America, Plaintiff, v. City of Hollywood, Defendant.
• Court: U.S. District Court — Southern District of Florida

430 F.Supp.2d 1296

HOLLYWOOD COMMUNITY SYNAGOGUE, INC. Plaintiff, v. CITY OF HOLLYWOOD, Florida and Sal Oliveri, individually, Defendants.

United States of America, Plaintiff, v. City of Hollywood, Defendant.

No. 04-61212-CIV.

No. 05-60687CIV.

United States District Court, S.D. Florida.

May 10, 2006.

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Franklin L. Zemel, Esq., Jason Gordon, Esq., Arnstein & Lehr LLP, Ft. Lauderdale, FL, Counsel for Plaintiff Hollywood Community Synagogue, Inc.

Daniel L. Abbott, Esq., Robert Oldershaw, Esq., Assistant City Attorney, Thomas J. McCausland, Esq., Chad B. Hess, Esq., Conroy Simberg, et al., Hollywood, FL, Counsel for Defendant City of Hollywood.

W. Todd Boyd, Esq., Carlos E. Mustelier, Jr., Esq., Boyd Mustelier Smith & Parker, P.L., Miami, FL, Counsel for Defendant Sal Oliveri.

Marilynn Lindsey, Esq., Assistant U.S. Attorney, Ft. Lauderdale, FL, Sean Keveney, Esq., R. Tamar Hagler, Esq., Housing & Civil Enforcement Section—Civil Rights Division, U.S. Department of Justice, Washington, DC, Counsel for Plaintiff United States.

OMNIBUS ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF HOLLYWOOD'S MOTION TO DISMISS SECOND AMENDED COMPLAINT (D.E. 140) AND DENYING DEFENDANT CITY OF HOLLYWOOD'S MOTION TO DISMISS (D.E. 225)

LENARD, District Judge.

THIS CAUSE is before the Court on Defendant City of Hollywood's Motion to Dismiss and/or Strike Second Amended Complaint ("Motion to Dismiss Second Amended Complaint," D.E. 140), filed January 5, 2006, and Motion to Dismiss ("Motion to Dismiss Plaintiff United States' Complaint," D.E. 225), filed May 28, 2005. On January 20, 2006, Plaintiff Hollywood Community Synagogue filed a Response to the Motion to Dismiss Second Amended Complaint. ("Hollywood Synagogue's Response," D.E. 144.) On January 30, 2006, Defendant City of Hollywood filed a Reply. ("Reply to Hollywood Synagogue's Response," D.E. 145.) On June 3, 2005, Plaintiff United States filed a Response to Defendant's Motion to Dismiss its Complaint. ("United States' Response," D.E. 226.) On June 15, 2005, Defendant City of Hollywood filed a Reply. ("Reply to United States' Response," D.E. 227.)

I. Factual and Procedural Background

On September 15, 2004, Plaintiff Hollywood Community Synagogue (hereinafter "HCS") filed a Complaint against Defendants City of Hollywood and Sal Oliveri (Case No. 04-61212-CIV-LENARD, D.E. 14), alleging violations of numerous rights and statutes, including the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. (hereinafter "RLUIPA."). On April 26, 2005, Plaintiff United States of America filed a Complaint against Defendant City of Hollywood (Case No. 05-60687-CIV-LENARD, D.E. 1), requesting declaratory and injunctive relief based upon Defendant's alleged violation of RLUIPA. On June 16, 2005, the Court issued an Order consolidating these cases and administratively closing the higher numbered case (Case No. 04-61212-CIV-LENARD, D.E. 75; Case No. 05-60687-CIV-LENARD, D.E. 14), finding they involved common questions of law and fact, including substantially the same factual scenario, same defendants, and same attorneys.

On December 2, 2005, Plaintiff HCS was granted leave to file a Second Amended Complaint. (D.E. 124.) This Second Amended Complaint (D.E. 125) contains 19 county and is the operative Complaint for purposes of City of Hollywood's Motion to Dismiss Second Amended Complaint. The legal claims and facts which follow are taken from the Second Amended Complaint in the consolidated case, unless otherwise specified. Plaintiff HCS is a Synagogue, with its principal place of business at 2215-2221 N. 46th Avenue, Hollywood, Florida 33021. (D.E. 125 at ¶ 6.) Defendant City of Hollywood is a city municipality empowered by the State of Florida to regulate the use of land and structures within the City's borders, consistent with law. (Id. at ¶ 7.) Defendant Sal Oliveri is a City Commissioner for the City of Hollywood, representing the area of Hollywood Hills. (Id. at 118.)

In 1999, Yosef Elul, then-President of the Synagogue, purchased two residences, located at 2215 and 2221 N. 46th Avenue, Hollywood. (Id. at ¶ 15.) In the neighborhood of single family residences in which the land was purchased, a place of worship could only operate if granted a Special Exception. (Id. at ¶ 19.) After the purchase of the land by Yosef Elul, the Director of Planning for the City of Hollywood advised the Synagogue that it needed to apply for a House of Worship Special Exception but assured Synagogue representatives that such Special Exception would be granted. (Id. at ¶¶ 19-20.)

In May of 2001, Alan Razla, on behalf of Mr. Elul, applied for a House of Worship Special Exception. (Id. at ¶ 21.) The Board of Appeal and Adjustments (hereinafter "BAA") granted a six month Special Exception. (Id.) Four months later, in September of 2001, Commissioner Oliveri filed an appeal to the City Commission of the BAA's grant of the Special Exception.¹ (Id. at 22.) The Commission heard the appeal and subsequently granted the Synagogue a one year Special Exception, which included certain conditions as to limited parking and persons. (Id.) Plaintiff United States notes that, upon information and belief, Defendant had never previously imposed a time limit on a special exception for a religious use, and had only once imposed a time limit on a special exception for a nonreligious use. (Case No. 05-60687-CIV-LENARD, D.E. 1 at ¶ 20.)

In late 2001 and 2002, according to Plaintiff HCS's Second Amended Complaint, Defendant Oliveri began regularly contacting the City's code enforcement and/or police departments, in order to enlist their services to issue citations and harass the Synagogue and its members. (D.E. 125 at ¶ 24.) Oliveri allegedly told code enforcement and police officers that "careful and vigilant monitoring" of the Synagogue's properties was required, instructed them to check the Synagogue's property daily for code violations, and told them to only give tickets to cars parked on the Synagogue's property. (Id. at ¶¶ 25-27.) The Synagogue's Administrator George Albo, witnessed the Code Enforcement and/or Hollywood Police Officers ticketing only those cars parked on the Synagogue's side of the street. (Id. at ¶ 75.). When Albo inquired as to why only the cars belonging to the Synagogue were being ticketed, the officer stated that he was following directions which came from Oliveri. (Id.) Also, a Code Enforcement Officer told Albo that the department was under orders from Commissioner Sal Oliveri and the Mayor to keep an eye on the Chabad [the Synagogue] and to enforce the code. (Id. at 76.) The Code Enforcement Officer further stated that she "paid special attention" to the Synagogue. (Id.) In addition, City Commissioner Cathy Anderson allegedly became aware of Defendant Oliveri's use of city personnel to constantly check on the Synagogue and publicly scolded Commissioner Oliveri, stating, "what we have here is selective enforcement and I'm very troubled by it." (Id. at ¶ 77.)

In September of 2002, the Development Review Board (hereinafter "DRB," formerly known as the BAA) granted Arthur Eckstein, on behalf of the Synagogue, a six month Temporary Special Exception subject to certain enumerated conditions. (Id. at ¶ 30.) At the September 2002 hearing, the DRB found that, subject to the enumerated conditions, the use of the property as a House of Worship was compatible with the existing natural environment and other properties within the vicinity.² (Id. at ¶ 31(A).) After the DRB hearing, Defendant Sal Oliveri filed an appeal to the Commission.³ (Id. at ¶ 32.) In October 2002, the Commission denied Oliveri's appeal and allowed HCS the six month Temporary Special Exception. (Id. at ¶ 33.)

In March of 2003, the DRB granted the Synagogue a Permanent Special Exception subject to certain enumerated conditions being met within 180 days. (Id. at ¶ 33.) Defendant Sal Oliveri filed another appeal.⁴ (Id. at ¶ 38.) Only 53 days after the Permanent Special Exception was granted, and after considerable debate, on June 5, 2003, the Commission reversed the earlier decision made by the DRB. (Id. at ¶ 39.) The Commission determined that the Synagogue was "too controversial," despite the fact that "controversiality" was not an enumerated factor in the City Code to be evaluated when considering a Special Exception. (Id. at ¶ 41, 44.) Plaintiff states that contrary to Commission procedure, Defendant Sal Oliveri was permitted to vote on his own appeal and cast the deciding vote (4-3)⁵ against the Synagogue.⁶ (Id. at ¶ 40.) Defendant Oliveri stated, "it's almost common sense and reasonable that the Chabad [the Synagogue] will never fit in Hollywood Hills." (Id. at ¶ 41.) Plaintiff United States notes that, upon information and belief, Defendant had never previously denied a request by a place of worship to operate in ether a single-family or multiple-family residential zone. (Case No. 05-60687-CIV-LENARD, D.E. 1 at ¶ 28.)

On October 16, 2003, Defendant sent HCS a letter notifying the congregation that it was to cease holding services and other related activities at its current location within one week. (Id. at ¶ 30.) Thereafter; Defendant Oliveri openly campaigned against the Synagogue in his 2004 campaign for City Commissioner of Hollywood Hills. (D.E. 125 at ¶ 45.) Oliveri claimed the Synagogue negatively impacted the residential neighborhood, but did not substantiate his statements with any facts. (Id.) At a July 2004 Commission meeting, Oliveri asked the Commission "to evict" the Synagogue and allegedly stated in support thereof, "I would just like to ask the Commission and I beg for their support for the sake of the neighborhoods here. . . We're talking about neighborhoods here. We're talking about neighborhoods having a smell."⁷ (Id. at ¶ 47.) During a July 7, 2004 City Commission meeting, the Commission voted to direct the City...