7020 Entm't, LLC v. Miami-Dade Cnty.

519 F.Supp.3d 1094

7020 ENTERTAINMENT, LLC and others, Plaintiffs,

v.MIAMI-DADE COUNTY, Defendant.

Civil Action No. 20-25138-Civ-Scola

United States District Court, S.D. Florida.

Signed February 10, 2021

Entered February 11, 2021

Daniel Robert Aaronson, James Scott Benjamin, Benjamin, Aaronson, Edinger & Patanzo, PA, Fort Lauderdale, FL, Gary Scott Edinger, Benjamin, Aaronson, Edinger & Patanzo, P.A., Gainesville, FL, for Plaintiffs.

Angela Freda Benjamin, David Marion Murray, Zachary Edward Vosseler, Miami-Dade County Attorney's Office, Miami, FL, for Defendant.

Order on Motion to Dismiss

Robert N. Scola, Jr., United States District Judge

This matter is before the Court upon the Defendant's motion to dismiss the Plaintiffs’ complaint. The Court held a hearing on the Defendant's motion on February 2, 2021. Counsel for the Plaintiffs and the Defendant appeared and presented arguments for the Court's consideration. For the reasons set forth below, the Court grants the Defendant's motion. (ECF No. 18 .)

1. Background

The COVID-19 pandemic continues to severely impact individuals and businesses not only throughout South Florida, but throughout America. To date, over 27.2 million Americans have been infected with the deadly COVID-19 virus and almost 470,000 Americans have died. Of those, over 1.7 million infections and over 28,000 deaths have impacted Floridians. In recognition of the severity of COVID-19, on March 9, 2020, Florida's Governor, Ron DeSantis, declared a state of emergency. (ECF No. 1-3.) Miami-Dade County followed suit and declared a local state of emergency on March 12, 2020. (ECF No. 1-2.) Since these emergency declarations, Miami-Dade County has implemented a variety of measures which straddle the line of saving lives and minimizing the impact of Florida's economy on the lives of its residents. One such measure which is at issue here is Miami-Dade County's curfew.

The Plaintiffs in this matter are 7020 Entertainment, LLC, a company which owns and operates KOD Miami, "a restaurant and alcoholic beverage establishment in Miami Dade County that features live entertainment in the form of exotic dance on several stages," and individuals affiliated with KOD Miami, including Michael Coleman, an employee of KOD Miami, Brian Kravetz a bartender at KOD Miami, and Kala Majors, an exotic dancer at KOD Miami. These Plaintiffs allege that the County's curfew unconstitutionally infringes on their First Amendment rights and ask the Court to enjoin the County from its enforcement.

By way of background, on July 2, 2020, the Mayor of Miami-Dade County issued Emergency Order 27-20 which instituted a curfew requiring individuals in the County to remain home from 10:00 p.m. until 6:00 a.m. the next morning. Miami-Dade County, Emergency Order 27-20, at https://www.miamidade.gov/information/library/07.02.20-emergency-order-27-20.pdf.¹ The curfew excepted emergency responders and essential workers from its scope, among others, and noted it would extend for the duration of the County's state of emergency, unless cancelled earlier by the County's mayor. Id . On September 9, 2020, the County amended Emergency Order 27-20 to add exemptions for national professional sports leagues and those traveling to and from religious services. Miami-Dade County, Emergency Order 27-20 Amendment 1, at http://www.miamidade.gov/information/library/coronavirus-emergency-order-27-20-amendment-1.pdf. The order was amended a second time on September 11, 2020 to reduce the curfew's duration from 11:00 p.m. to 6:00 a.m., effective September 14, 2020. Miami-Dade County, Emergency Order 27-20 Amendment 2, at http://www.miamidade.gov/information/library/coronavirus-emergency-order-27-20-amendment-2.pdf. Executive Order 27-20 was amended most recently on October 10, 2020 to reduce the curfew's duration such that it would now only be in effect from 12:01 a.m. to 6:00 a.m. (ECF No. 1-5.)

While the County's curfew was in place, Florida's Governor began reopening the state through a phased reopening plan. On September 25, 2020, the Governor issued Executive Order 20-244, which declared Florida was entering Phase 3, the final stage of the state's reopening, which noted "[n]o COVID-19 emergency ordinance may prevent an individual from working or from operating a business." (ECF No. 1-3.) The Order also noted, with respect to restaurants, that such businesses:

may not be limited by a COVID-19 emergency order by any local government to less than fifty percent (50%) of their indoor capacity. If a restaurant is limited to less than one hundred percent (100%) of its indoor capacity, such COVID-19 emergency order must on its face satisfy the following: (i) quantify the economic impact of each limitation or requirement on those restaurants; and (ii) explain why each limitation or requirement is necessary for public health.

(ECF No. 1-3.) Accordingly, the Governor's Executive Order required municipalities and counties throughout Florida to provide additional information justifying any emergency orders which impacted restaurants such as KOD Miami.

In apparent response to Executive Order 20-244, Miami-Dade County issued Emergency Order 30-20. Miami-Dade County, Emergency Order 30-20, at https://www.miamidade.gov/information/library/coronavirus-emergency-order-30-20.pdf. Emergency Order 30-20 noted the County took "actions ... at the beginning of July to close certain establishments, impose a curfew, and expand the application of physical distancing and facial covering requirements ... to mitigate the spread of COVID-19 and reduce the daily positivity rate." Id. Acknowledging the requirements set forth in Governor DeSantis's Executive Order 20-244, Emergency Order 30-20 noted "the restaurant industry has experienced a 15 percent reduction in sales in March 2020, a 48 percent reduction in sales in April 2020, a 65 percent reduction in May 2020 and a 54 percent reduction in June 2020, as compared to January 2020 sales." Id. The Order went on to state that these losses "reflect both government restrictions on restaurants and also customers who chose not [to] patronize restaurants due to concerns about COVID-19." Id. The order continued by stating that the government's social distancing restrictions and curfew order, among other restrictions, "individually and collectively, could result in a continued loss of sales for such restaurants of 54 percent as compared to prior years, based on data through June 2020." Id. The order explained that these restrictions were necessary because COVID-19 travels through air droplets and can spread through asymptomatic individuals such that action by the County was necessary to ensure individuals do not inadvertently spread COVID-19 while they sit and eat. Id. As with Emergency Order 27-20, Emergency Order 30-20 states it will expire upon expiration of the County's state of local emergency, unless cancelled earlier by the County's Mayor.

Emergency Order 30-20 was amended on October 14, 2020, adding additional justifications for the County's curfew order. The amended order noted that:

the County, during this pandemic, has observed that persons socializing at night, particularly youth, are often not attentive to social distancing, especially in places where alcohol is served or available, including house parties, bars, restaurants, and clubs ... persons in bars, restaurants, and other places where food and drink are consumed are not wearing masks, rendering social distancing all the more important ... the purpose of the curfew is [to] reduce the spread of COVID and to save lives by, among other things, prohibiting late night socializing which was a critical vector for the spread of COVID in May and June of this year"

(ECF No. 1-7.) The order also noted the County's curfew was recommended by "medical experts consulted by the County, including members of the White House Coronavirus Task Force." (ECF No. 1-7.) Accordingly, the order states the County's curfew "remains necessary to ensure that people, particularly young people, are not gathering and socializing in ways that pose a direct threat to the health of themselves, their parents, and grandparents." (ECF No. 1-7.)

Other counties in Florida have similarly issued curfew orders. For instance, on October 16, 2020, Broward County issued Emergency Order 20-28, which imposed a curfew in Broward County from midnight until 5 a.m. Broward County, Emergency Order 20-28, at https://www.broward.org/CoronaVirus/Documents/Emergency% 20Order% 2020-28.pdf. Unlike Miami-Dade County's Emergency Order 30-20, Broward County's Emergency Order 20-28 contained no findings with respect to the economic impact Broward County's restrictions would have on restaurants, in satisfaction of the Governor's Executive Order 20-244.

The County's declaration of a local state of emergency has been extended every week since it was first declared on March 12, 2020. Accordingly, the County's curfew and the limitations on restaurants such as Plaintiff 7020 Entertainment LLC remain in place. The Plaintiffs challenge Miami-Dade County's curfew on several grounds. First, they allege the curfew violates the First Amendment as it is content-based (Count I), is underinclusive (Count II), and lacks narrow tailoring (Count III). The Plaintiffs also allege the curfew violates the Equal Protection Clause (Count IV) and the Florida Constitution (Count VI). Plaintiffs additionally allege the County, in enforcing its curfew has violated the First and Fourth Amendments (Count V). Finally, the Plaintiffs argue that the County's curfew is preempted by the Governor DeSantis's Executive Order 20-244 (Counts VII-IX) and is invalid as an ultra vires act (Count X).

2. Legal Standard

A. Motion to Dismiss

When considering a motion to dismiss under Federal Rule 12(b)(6), the Court must accept all of the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008). Under ...