Murphree v. Tides Condo. at Sweetwater, Case No. 3:13-cv-713-J-34MCR

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Decision Date31 March 2014
Docket NumberCase No. 3:13-cv-713-J-34MCR

This case arises from a condominium association's restrictions regarding the flying of the American flag by a condominium owner. It is before the Court on two motions to dismiss: Defendants', Tides Condominium at Sweetwater by Del Webb, Inc., Sweetwater by Del Webb Master Homeowners' Association, Inc., Continental Group, Inc., and Katie Hollis, Motion to Dismiss and Incorporated Memorandum of Law (Doc. 9; Tides Motion), and Defendant Pulte Home Corporation Motion to Dismiss Complaint and Incorporate [sic] Memorandum of Law (Doc. 10; Pulte Motion)(collectively "Motions"). Plaintiff Larry Murphree ("Plaintiff" or "Murphree"), has responded in opposition to both Motions. (Doc. 12; Response)1.

I. Standard of Review

In the Motions, Defendants seek dismissal of Murphree's Complaint for failure to state a claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rules(s)). When considering a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true, construing the allegations and drawing all reasonable inferences in the light most favorable to the plaintiff. Castro v. Sec'y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006); Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Rule "8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007). Normally, "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal citations and quotations omitted). As a result, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

Of course, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a motion to dismiss, a court should "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their veracity and then determine whether they plausibly give rise to anentitlement to relief.'" Amer. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679)).

II. Background
A. Facts Alleged

Murphree's Complaint is premised on the Defendants' enforcement of condominium association restrictions regarding the display of an American flag. (See Doc. 1; Complaint). Murphree, who owns a condominium at The Tides Condominium at Sweetwater by Del Webb, alleges that in 2011, he began "displaying a small United States flag in the garden pots outside the door to his condominium." Id. at ¶¶ 9, 14.2 According to Murphree, his flagdisplay has prompted years of harassment, fines and other torment at the hands of the Defendants. In his Complaint, Murphree describes the history of discord and conflict with Defendants regarding his display of the American flag, including a previous lawsuit which he filed and later voluntarily dismissed after reaching a settlement. Complaint at ¶¶ 14-18, 23, 27-30. As part of that settlement, Murphree agreed to display the American flag in compliance with "Association Documents." (Doc. 1-2; Complaint Ex. B).3

On April 24, 2012, less than two weeks after Murphree dismissed his flag lawsuit, the Tides Board of Directors approved new Design Guidelines for Flags and Amended Design Guidelines for Potted Plants ("Guidelines")." Complaint at ¶ 30. The Guidelines provide that

Any Unit Owner may display one (1) portable, removable United States flag daily in a respectful way.

. . .

Flags may be displayed only in flag brackets . . . installed only on the outside front decorative white banding surrounding the entrance to a Tides unit garage door, and be adjacent to and even with the lighted unit-address plate. The flag shall not be displayed on days when the weather is inclement, except when an all-weather flag is displayed, and flags may be flown only during daylight hours. All flags must be maintained in good condition.

(Doc. 1-4 at 2; Complaint Ex. D). As to potted plants, the Guidelines provide:

One (1) potted plant per unit may be placed in the covered entry. . . . Contents of planters are limited to maintained foliage, flowers and self-watering devices to help keep plant material in good condition, such as glass watering bulbs, ceramic watering sensors/probes or spikes. No more than three (3) such self-watering devices may be used.

Id. at 3.

Murphree alleges that he has "continued to exercise his right to display the American Flag," Complaint at ¶ 31, and as a result, on February 8, 2013, he "received a written second notice of violation regarding small American flags he had placed in the potted plants located outside his front door and was given until February 15, 2013, to remove the flags or face fines of $100.00 per day." Id. at ¶ 32. That notice, signed by Hollis as "Property Manager," informed Murphree that based upon a February 8, 2013 inspection, "[c]urrently your [sic] are not complying with the Potted Plant Design Guideline or The Flag Design Guideline." (Doc. 1-5 at 2; Complaint Ex. E "(Notice")). The notice also stated that a hearing would be scheduled if Murphree did not comply with the Guidelines by February 15, 2013. Id. Murphree alleges that on March 5, 2013, he received a "Notice of Violation - Hearing," which alleged his continuing violation of the flag and potted plant Guidelines as of March 5, 2013, and scheduled a hearing before the condominium Rules/Enforcement Committee on March 20, 2013. Complaint at ¶ 33; (Doc. 1-6; Complaint Ex. F). Murphree appeared at the hearing. Complaint at ¶ 34; (Doc. 1-7; Complaint Ex. G).

On April 19, 2013, Murphree received notification from the Tides Compliance Enforcement Committee ("Committee"), that the Committee determined that Murphree's "Flag in Pot in the Common Area" was not in compliance "with the Potted Plant Design Guideline or the Flag Design Guideline," and thus, was in violation of the Guidelines. Complaint at ¶35; Complaint Ex. G. The Committee determined that Murphree "must comply with the potted plant design guideline by May 15, 2013," and that "[f]ailure to comply with these terms will result in a fine of $100 per day until the violation has been corrected." Complaint Ex. G. Defendant Hollis signed the Committee's letter in her capacity as the Community Association Manager. Complaint at ¶ 35; Complaint Ex. G. Murphree alleges that on June 7, 2013, he "received a bill from the Tides for $1,000.00 for failure to remove the American Flag on his property." Complaint at ¶ 42.

B. The Complaint

On June 18, 2013, Murphree, who is represented by counsel, filed a seven count Complaint. Murphree labels Count I as an "Action for Declaratory Relief and Damages Pursuant to 120 Stat. 572," the Freedom to Display the American Flag Act of 2005 (the "Act"). In this count, Murphree alleges that the Act "indicates that the Defendant my [sic] not curtail Plaintiff's right to display the United States flag outside of his condominium residence under the guise of enforcing the association covenants and restrictions under Federal law," and that "the Defendant" has continued to "harass" and "persecute Plaintiff's display of the United States flag contrary to Federal Law." Complaint at ¶¶ 45, 46. Additionally, Murphree alleges that his "fundamental right to free speech has been chilled and curtailed" by "Defendant's" actions. Id. at ¶ 47. Murphree does not identify the Defendant(s) against whom Count I is asserted, although he refers only to the "condominium association." Id. at 8. As relief, he seeks an "Order declaring the actions of the condominium association invalid pursuant to 120 Stat. § 572," plus damages, attorneys' fees and costs. Id.

In Count II of the Complaint, Murphree seeks "declaratory relief" requesting an "Order declaring the actions of the condominium association invalid pursuant to Florida Statute § 718.113(4)," which he alleges "indicates that the Defendant(s) my [sic] not curtail Plaintiff's right to display the United States flag outside his condominium residence." Id. at 8-9.

In Count III of the Complaint, Murphree asserts a violation of Title 42 U.S.C. Section 1983. Murphree alleges that he seeks damages "for violation of Plaintiff's speaking rights pursuant to the United States Constitution Amendment 1." Complaint at ¶ 53. He contends that "Defendant(s) . . . is a state actor for purposes of first amendment analysis." Id. at ¶ 55 (citing Shelley v. Kraemer, 334 U.S. 1 (1948) and Gerber v. Longboat Harbour N. Condo., Inc., 757 F. Supp. 1339 (M.D. Fla. 1991)). He also asserts that his display of the American flag is "protected for political speech," and that "the Defendant condominium corporation has infringed upon Plaintiff's fundamental right to free speech protected by the First Amendment to the United States Constitution." Id. at ¶¶ 56, 57. As relief, Murphree seeks an Order declaring the actions of the condominium association "invalid," and awarding "actual damages," attorneys' fees and costs. Id. at 10.

In Counts IV through VII of the Complaint, Murphree appears to assert state law claims. Count IV is labeled an "Action for Harassment." In it, Murphree alleges that Defendant Hollis, "in her capacity as community...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT