Vazzo v. City of Tampa

• Citation: 415 F.Supp.3d 1087
• Decision Date: 04 October 2019
• Docket Number: No. 8:17-cv-2896-T-02AAS,8:17-cv-2896-T-02AAS
• Parties: Robert L VAZZO and Soli Deo Gloria International, Inc. d/b/a New Hearts Outreach Tampa Bay, Plaintiffs, v. CITY OF TAMPA, Defendant.
• Court: U.S. District Court — Middle District of Florida

415 F.Supp.3d 1087

Robert L VAZZO and Soli Deo Gloria International, Inc. d/b/a New Hearts Outreach Tampa Bay, Plaintiffs,

v.CITY OF TAMPA, Defendant.

No. 8:17-cv-2896-T-02AAS

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

Signed October 4, 2019

Daniel Joseph Schmid, Horatio G. Mihet, Liberty Counsel, Mathew D. Staver Liberty Counsel, Roger K. Gannam, Liberty Counsel, Orlando, FL, for Plaintiffs.

David Harvey, Winkles Law Group, P.A., Tampa, FL, Robert V. Williams, Dana Lee Robbins, Burr & Forman, LLP, Tampa, FL, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

This matter comes to the Court on Motions for Summary Judgment filed by Plaintiffs Robert Vazzo and New Hearts Outreach Tampa Bay, Dkt. 194, and Defendant, City of Tampa, Dkt. 189. With the benefit of full briefing and able argument by both sides at a hearing, the Court grants Plaintiffs' motion for summary judgment as to Count VI of the Amended Complaint, Dkt. 78, pursuant to Fed. R. Civ. P. 56.

INTRODUCTION

This case involves a challenge to the City of Tampa's municipal ordinance prohibiting sexual orientation change efforts ("SOCE") on minors during licensed psychotherapy and counseling. The Eleventh Circuit follows "the longstanding principle that federal courts should avoid reaching constitutional questions if there are other grounds upon which a case can be decided." BellSouth Telecomms., Inc. v. Town of Palm Beach , 252 F.3d 1169, 1176 (11th Cir. 2001). The Supreme Court has long endorsed this "sound general policy." District of Columbia v. Little, 339 U.S. 1, 3–4, 70 S.Ct. 468, 94 L.Ed. 599 (1950). Following this policy, the Court turns first to Count VI, a preemption Count based upon Florida law. According to the City, the Ordinance regulates medical professionals and "part of the practice of medicine" within the City limits. Dkt. 189 at 17. The City is unaware of any child ever receiving proscribed SOCE in the City.¹ The City has never before substantively regulated and disciplined the practice of medicine, psychotherapy, or mental health treatment within City limits. Nor does the City possess charter or home rule authority to do so. The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs' motion for summary judgment on Count VI. Dkt. 194.

PROCEDURAL BACKGROUND

The Ordinance: The City of Tampa passed Ordinance 2017-47 (attached here as an appendix) on April 6, 2017. It was signed into law by Mayor Bob Buckhorn four days later.² Broadly stated, the Ordinance bars therapy within the City by medical doctors and mental health professionals that seeks to assist a minor patient in a goal to change gender expression or to change sexual orientation/attraction. These two subjects are separate and distinct, but related. The cases have generically referred to these two subjects as "SOCE" or sexual orientation change efforts. The Ordinance uses the term "conversion therapy." Neither term is entirely accurate, but the Court will use the term "SOCE" for these two subjects as that seems more prevalent in the case law and literature and that term was preferred by the City's expert.³ The Tampa Ordinance prohibiting SOCE on minors is very similar to one present in other lawsuits now pending.⁴

Specifically, the Ordinance contains a lengthy preamble, citing a number of psychological and medical studies offering criticism of SOCE. Tampa, Fla., Ordinance 2017-47 (April 10, 2017). The preamble, which serves as legislative factfinding by the City Council, cites as legal authority "two federal circuit courts of appeal [that] have upheld bans on conversion therapy."⁵ These two cases, from the U.S. Ninth and Third Circuit Courts of Appeals, were criticized by name and possibly abrogated on First Amendment grounds by the U.S. Supreme Court in 2018 in Nat'l Institute of Family and Life Advocates v. Becerra, ––– U.S. ––––, 138 S. Ct. 2361, 2371–72, 201 L.Ed.2d 835 (2018).

The Ordinance states that the City Council found "overwhelming research demonstrating that sexual orientation and gender identity change efforts can pose critical health risks to lesbian, gay, bisexual, transgender or questioning persons, and that being lesbian, gay, bisexual, transgender or questioning is not a mental disease, mental disorder, mental illness, deficiency, or shortcoming." Tampa, Fla., Ordinance 2017-47 at 4 (April 10, 2017). Relevant text is as follows:

Sec. 14-310.–Intent.

The Intent of this Ordinance is to protect the physical and psychological well-being of minors, including but not limited to lesbian, gay, bisexual, transgender and/or questioning youth, from exposure to the serious harms and risks caused by conversion therapy or reparative therapy by licensed providers, including but not limited to licensed therapists. These provisions are exercises of police power of the City for the public safety, health, and welfare; and its provisions shall be liberally construed to accomplish that purpose.

Sec. 14-311.–Definitions .

Conversion therapy or reparative therapy means, interchangeably, any counseling, practice or treatment performed with the goal of changing an individual's sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex. Conversion therapy does not include counseling that provides support and assistance to a person undergoing gender transition or counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change sexual orientation or gender identity.

Minor means any person less than 18 years of age.

Provider means any person who is licensed by the State of Florida to provide professional counseling, or who performs counseling as part of his or her professional training under chapters 456, 458, 459, 490 or 491 of the Florida Statutes, as such chapters may be amended, including but not limited to, medical practitioners, osteopathic practitioners, psychologists, psychotherapists, social workers, marriage and family therapists, and licensed counselors. A Provider does not include members of the clergy who are acting in their roles as clergy or pastoral counselors and providing religious counseling to congregants, as long as they do not hold themselves out as operating pursuant to any of the aforementioned Florida Statutes licenses.

Sec. 14-312.–Conversion Therapy Prohibited .

It shall be unlawful for any Provider to practice conversion therapy efforts on any individual who is a minor regardless of whether the Provider receives monetary compensation in exchange for such services.

Tampa, Fla., Code of Ordinances §§ 14-310 to -312 (2019).

The Ordinance provides for a $1000 fine for the first offense and a $5000 fine for subsequent offenses. Id. § 14-313. The City's Department of Neighborhood Enhancement (formerly Code Enforcement) enforces the Ordinance. Id. Although this is the City Department that usually enforces code violations like overgrown weeds and unpermitted contracting, the City's Neighborhood Enhancement director testified that he would take any suspected violation of the SOCE Ordinance to the City Attorney before issuing a notice of violation. Dkt. 133-1 at 23–25, 29. The Assistant City Attorney tasked as representative on this matter has been a lawyer for four years but has no training in counseling, therapy, or medicine; and stated that the City would consult Webster's Dictionary to understand the terms in the Ordinance. Dkt. 133-3 at 23, 25, 67–68.

If contested, the City would employ a "special magistrate" to adjudicate the alleged violation as a code enforcement proceeding. Dkt. 134-3 at 8; Dkt. 133-3 at 102–03. The City's special magistrates are unpaid volunteers appointed by the mayor. Id. The City has no plan in connection with the Ordinance to appoint someone who is a licensed mental health provider. Id. at 104.

The Ordinance does not preclude providers from speaking about SOCE to any persons including patients and in any setting, other than as part of therapy with minor patients. The Ordinance applies only to licensed practitioners while giving mental health therapy to minors within City limits, and applies to no other persons such as ministers, lay providers, parents, unlicensed persons, etc. Tampa, Fla., Ordinance 2017-47 at 4 (April 10, 2017). The Ordinance does not differentiate between coercive or aversive therapy

, and simple "talk therapy."

The Plaintiffs: Plaintiff Vazzo is a marriage and family therapist licensed in Florida and other states. Dkt. 78 ¶ 14. His practice includes providing SOCE counsel to minors. Id. ¶ 102. According to Vazzo, SOCE counseling may help clients including minors "reduce or eliminate same-sex sexual attractions, behaviors, or identity." Id. ¶¶ 60, 88, 116. Vazzo employs no coercive or aversive techniques. Id. ¶ 61. During SOCE counseling, Vazzo uses speech to help clients "understand and identify their anxiety or confusion regarding their attractions, or identity and then help the client formulate the method of counseling that will most benefit that particular client." Id. ¶ 65.

Vazzo states that clients initiate SOCE counseling by giving informed consent. Id. ¶ 8. Some clients request SOCE counseling to "address the conflicts between their sincerely held religious beliefs and goals to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity." Id. ¶ 9.

Plaintiff New Hearts Outreach is a Christian ministry in Tampa. Id. ¶¶ 16, 126. Part of...