Southern Alliance Corp. v. City of Winter Haven, 85-2704
| Decision Date | 18 March 1987 |
| Docket Number | No. 85-2704,85-2704 |
| Parties | 12 Fla. L. Weekly 830 SOUTHERN ALLIANCE CORPORATION, Appellant, v. The CITY OF WINTER HAVEN, a municipal corporation, and Paul H. Stanley, Ron Martin, Charles Brown, Dale McDonald, Mary Mariani, Richard Murphy, and Harold Parker, jointly and severally, Appellees. |
| Court | Florida District Court of Appeals |
John V. Baum of Baldwin & Baum, Fern Park, for appellant.
Clifford J. Schott of Schott & Dale, P.A., Lakeland, for appellees.
This is an appeal from a final order which dismissed with prejudice appellant's (Southern's) second amended complaint. Essentially, the four-count complaint sought damages from appellees (the City and several of its employees) on the basis of conduct alleged to be in violation of 42 U.S.C. § 1983 (1979) 1, and 42 U.S.C. § 1985 (1980) 2. It also asserted a common law claim for tortious interference with an advantageous business relationship. The issues presented are (1) whether the trial court erred in finding Southern's claim against the City was barred by the doctrine of sovereign immunity, and (2) whether the trial court erred in dismissing Southern's complaint against the employees. We affirm the dismissal of the 42 U.S.C. § 1985 claim and the claim for tortious interference with an advantageous business relationship. We reverse the dismissal of the 42 U.S.C. § 1983 claims, and remand for further proceedings consistent with this opinion.
The facts taken from the second amended complaint allege that Southern is the owner and proprietor of a lounge located in Winter Haven. At approximately 11:30 p.m., on September 22, 1984, Southern's chief executive officer was served with an order to cease and desist from certain violations of the City's Standard Fire Prevention Code and Life Safety Code (the Codes). The order was served after an inspection of the business premises by the police and fire departments of the City. The City had previously approved an occupancy load of 191 persons, exclusive of employees, for the lounge. The Standard Fire Prevention Code prohibits "overcrowding." Upon finding any "overcrowding" in an establishment, the Code further vests the appropriate government agency with the power to cause "the performance, presentation, spectacle or entertainment" then taking place in such establishment to be stopped until such condition is corrected. Southern was apparently in violation of this prohibition by allowing a total of 235 persons, including its employees, to enter or occupy its premises during the evening hours immediately prior to service of the cease and desist order.
The complaint further alleged that in serving the cease and desist order, the City's employees (1) surrounded the lounge with a team of approximately fifteen police and fire department officers, some of whom were dressed in riot gear, five squad cars, an emergency response van, and two police dogs; (2) entered the lounge and, without counting the numbers, directed all patrons to depart; (3) refused to answer Southern employees' questions regarding the nature of the order; (4) refused to permit the patrons to pay their bills before departing, and refused to permit Southern employees from collecting the bills; (5) accomplished the foregoing in a "rude and insulting manner," threatened to arrest anyone making inquiry into the nature of their presence, and conducted their duties in a manner "totally out of proportion to the gravity of the evil they supposedly intended to remedy"; and (6) summarily closed the lounge until their permission to reopen it had been obtained.
Thereafter, the City rescinded the prior occupancy load of 191 persons, and summarily closed the lounge "until such time as a revised occupancy load for that business might be established." On September 24, 1984, appellee Stanley, the City's assistant chief of the Fire Department, informed Southern that the City had established a new occupancy load of 122 persons for the lounge, and that Southern was not to open the lounge until it was able to comply with the revised occupancy load. On the same day, Southern filed its initial complaint in the present action. On October 17, 1984, Stanley advised Southern that a second revised maximum occupancy level of 110 persons had been established for the lounge. Again, Southern was directed not to open the lounge until it was able to comply with the second revised occupancy load.
Count I of Southern's second amended complaint essentially alleged that the service of the cease and desist order was under color of state law and city ordinance, and that the manner in which the order was served violated several of Southern's constitutional rights. Specifically, Count I alleged the City, through its employees, violated 42 U.S.C. § 1983 in that: (1) the entry on and closing of the lounge was done without probable cause to believe that the City's ordinances were being violated, in violation of Southern's rights under the fourth and fourteenth amendments to the United States Constitution; (2) the removal of the patrons from the lounge without permitting Southern's employees to collect payment for the patrons' bills, and the undertaking of the actions with knowledge that such actions would cause a diminished value of Southern's business deprived Southern of property without due process of law, in violation of the fifth, ninth, and fourteenth amendments; and (3) the punitive application of the City's policies and procedures to Southern's business, under the above-described facts, constituted cruel and unusual punishment, in violation of the eighth amendment. Count I further alleged that the City's policies and the employees' actions in implementing those policies were undertaken with malice, and with a willful and wanton desire to violate and a reckless disregard for Southern's constitutional rights. The prayer for relief sought actual and punitive damages.
Count II of the second amended complaint alleged that the City, through its employees, violated 42 U.S.C. § 1983, in imposing a new occupancy limit for the lounge without prior notice or an opportunity to be heard, and in prohibiting Southern from reopening the lounge until it complied with that limit. Specifically, Southern alleged that these acts violated its rights under the fifth, eighth, ninth, and fourteenth amendments to the United States Constitution, in much the same manner as it had pleaded in Count I. Southern also alleged, as it did in Count I, that the acts were done in a malicious manner, with a willful and wanton desire to violate Southern's constitutional rights. The prayer for relief also sought actual and punitive damages.
Count III sought actual and punitive damages under 42 U.S.C. § 1985, and alleged that the employees conspired to commit the above acts, in violation of Southern's constitutional rights.
Count IV sought actual and punitive damages for tortious interference with an advantageous business relationship, and alleged that the appellees, presumably the employees, closed the lounge with the knowledge that the closing would have and did have a detrimental effect on Southern's prior advantageous business relationship with the community. Again, Southern alleged that the acts were done with malice and with a willful and wanton desire to damage its business relationship with its patrons.
On May 6, 1985, the employees filed their motion to dismiss Southern's second amended complaint, alleging that Southern failed to plead sufficient facts that would demonstrate a malicious purpose or willful and wanton conduct to support a claim for punitive damages and to remove the statutory immunity of section 768.28(9)(a), Florida Statutes (1983). On May 9, 1985, the City filed a similar motion, alleging that it was immune from suit under the doctrine of sovereign immunity, and that Southern failed to plead sufficient facts to state a cause of action.
On November 20, 1985, the trial court entered its order dismissing with prejudice Southern's second amended complaint against all appellees. Specifically, the trial court found that, with respect to the employees, Southern's complaint did not contain sufficient facts demonstrating a malicious purpose or willful and wanton conduct on the part of the employees to remove the immunity provided by section 768.28(9)(a). Additionally, the trial court found that Southern failed to plead sufficient facts to support its claim that the employees committed unconstitutional acts. With respect to the City, the trial court found that under Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985), and Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), the actions of the City were "clearly discretionary and policy making" and therefore, the City was immune from suit under the doctrine of sovereign immunity. The trial court further found that Southern's complaint failed to allege sufficient facts to support its claim against the City for unconstitutional acts. This timely appeal followed.
The trial court found that the City was immune from suit by virtue of the decisions in Commercial Carrier and Trianon Park. Essentially, these cases hold that despite the legislature's waiver of sovereign immunity, certain "discretionary" or "governmental" acts of a state agency do not give rise to an actionable tort. Specifically, in Trianon Park, our supreme court held that a governmental entity may not be liable to individual property owners for the negligent actions of its building inspectors in enforcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity. 468 So.2d at 922. While we certainly agree that these decisions control common law tort actions or tort actions created by state statute brought against a state agency, we find that they are not...
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