Alimenti v. Town of Howey-In-the-Hills

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BERNARD ALIMENTI, Plaintiff, v. TOWN OF HOWEY-IN-THE-HILLS, FLORIDA, Defendant.

No. 5:20-cv-386-CEH-PRL

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

March 22, 2023

ORDER

Charlene Edwards Honeywell, United States District Judge

This cause comes before the Court upon the Motion for Summary Judgment of Defendant Town of Howey-in-the-Hills, Florida (Doc. 89), Plaintiff Bernard Alimenti's Response in Opposition to Defendant's Motion for Summary Judgment (Doc. 92), and Defendant's Reply (Doc. 96).

In this 42 U.S.C. § 1983 action, Plaintiff alleges that Defendant, his former town of residence, violated his First Amendment rights by restricting his ability to speak during town council meetings. He further alleges Defendant retaliated against him for exercising his First Amendment Rights.

Having considered the motion, the response, the reply, and the parties' Joint Stipulation of Material Facts, and being fully advised in their premises, the Court will grant Defendant's Motion for Summary Judgment.

I. FACTS^[1]

Plaintiff Bernard Alimenti moved to the town of Howey-in-the-Hills in approximately June 2018. Doc. 93 at 2. He began to express criticism of town officials in the same month, after a cement spill on his street was not promptly cleaned up. Doc. 92-2 ¶¶ 3-8. He also clashed with the town's code enforcement officer about a neighbor's property. Docs 89-4, 89-5. Over time, Plaintiff became a vocal critic of officials regarding a variety of issues. See Doc 92-2 ¶ 10. In this regard, he joined an unofficial faction of residents who shared his views, such as town council member Matthew McGill, Marni Drabik, and Paula Perry. Docs. 92-3, 92-4, 92-5. Targets of Plaintiff's criticism included Public Works Director John Ernest, Mayor David Nebel, Police Chief Herbert Thomas, and Town Code Enforcement Officer Lawrence Chester. Doc. 92-2. Plaintiff frequently aired his concerns during public meetings of the town council, which met twice per month. Id. ¶ 10; Doc. 93 at 1.

Plaintiff moved out of Howey-in-the-Hills in July 2019. Doc. 93 at 2. On August 20, 2020, he filed suit against the town. Doc. 1. He and two other former citizens brought claims against Howey-in-the-Hills as well as several officials in their official and individual capacities. Id. Plaintiff subsequently dismissed the claims against the town officials, and the Court granted Defendants' motion to sever. Docs. 20, 57, 44.

Now Plaintiff alone brings two causes of action against the town pursuant to 42 U.S.C. § 1983. Doc. 60. He alleges that the town violated his First Amendment right to free speech by suppressing his ability to speak at town council meetings, and that it retaliated against him for exercising his First Amendment rights. Id.

A. First Amendment Violations

Plaintiff first alleges that town officials restricted his ability to speak during town council meetings or otherwise failed to enforce meeting rules in an equitable manner.

1) Town Council Meeting Rules

Town council meetings' procedures were governed by town Resolution 2013010. Doc. 93 at 2; Doc. 89-3. The resolution provided members of the public with two opportunities to speak during meetings: the first to address the subject of an agenda item, and the second during a public participation and comment period of up to 30 minutes at the end of each meeting. Id. §§ 4(5), 5(1). When addressing an agenda item during which the council was acting in a quasi-judicial capacity, speakers were limited to three minutes per person, although the presiding officer and council had discretion to extend the time allowed or give the speaker an opportunity for a three-minute rebuttal following another comment. Id. § 4(6). The public comment period at the end of each meeting required citizens to sign up in advance so that the period could be split equally between those who signed up. Id. § 5(1), (2). Although “in no case may a citizen speak longer than three minutes,” the presiding officer “may permit additional time to a given speaker on a case by case basis.” Id.

The resolution also provided that the presiding officer was responsible for preserving order and decorum at all meetings. Id. §§ 4(1), 6. A speaker must be recognized before making a comment or asking a question; no two speakers could be acknowledged at once, nor could speakers and members of the audience engage in discussion. Id. §§ 4(5), 5(6). Speakers were required to be courteous in their language and presentation, and could not use “profanity or cursing, aggressive or threatening behavior” or engage in “personal verbal attacks.” Id. §§ 5(5), 6(2). Public comments could not be directed to an individual rather than the council as a whole. Id. §§ 5(4), 6(2).

2) November 26, 2018 Meeting

Matthew McGill attested that he “observed that the rules for citizens to speak at Council meetings were not being enforced consistently by Mayor Nebel or [subsequent Mayor Martha] MacFarlane.” Doc. 92-3 ¶ 9. He “personally witnessed [his] supporters and others critical of [the town] and Mayors Nebel and MacFarlane not being afforded the same time and opportunities to speak as those who were not critical” of them. Id. ¶ 10. Plaintiff and his witnesses identified several meetings in which these actions occurred.

The first such meeting occurred on November 26, 2018. Doc. 92-2 ¶ 11. Plaintiff alleges that Mayor Nebel, while serving as the presiding officer, prevented him from speaking because of the three-minute time limit, even telling him to “sit down,” even though other members of the public were permitted to speak for longer than three minutes. Id. According to the audio recording of the meeting,^[2] Plaintiff made a brief comment during discussion of an agenda item about body cams. 11/26/18 at 51:10. During the general public comment portion at the end of the meeting he spoke a second time. Id. at 1:14:53. This comment was critical of the town and the councilmembers' actions, and he addressed portions of it to individual councilmembers.^[3] The comment lasted five minutes and ten seconds and was uninterrupted; Mayor Nebel thanked him for it after he was finished. Two other citizens made critical comments next, including Plaintiff's wife. Id. at 1:20:50. Plaintiff then attempted to speak again, Doc. 93 at 4, and Nebel stated, “You had yours, sir. You're limited to three minutes. Go sit down.” 11/26/18 at 1:25:25. Nebel then informed the next speaker, Elwis Benson, who had made a comment during the body cam section, that he had used part of his time already but they would let him come back up. 11/26/18 at 1:25:43. A female councilmember clarified, “not for this one.” Benson spoke for less than three minutes during each of his comments and was not cut off.

Three people, including Plaintiff and Benson, spoke twice during the November 26 meeting-once during the body cam discussion and once during the general comment session-but no one else attempted to speak twice during the general comment session. No one was cut off or interrupted during their comment, whether or not they were speaking critically. Matthew McGill, who had been elected to the council but had not yet taken office, addressed the council for more than ten minutes during the general comment session without being cut off; his comments included criticism of town or council actions.

Nebel's statements to Plaintiff and Benson were discussed at the meeting on December 10, 2018, at Benson's request. 12/10/18 at 1:35:34. Benson objected to what he believed was a new rule restricting public comments to a total of three minutes per meeting, rather than three minutes per issue. A female councilmember responded that they had not intended to impose such a rule and that any perception of it resulted from the councilors' confusion because they were new to their positions. The councilmembers agreed that members of the public could speak for up to three minutes for each agenda item in addition to three minutes during the general public comment session.^[4] They did not address whether someone could speak twice during a single comment session. Plaintiff made a critical comment after this discussion that lasted for less than three minutes and was uninterrupted. Id. at 2:17:45. No speaker was cut off or interrupted during the December 10 meeting, although at least one critical comment exceeded the three-minute limit. No speaker attempted to speak more than once during the general comment session.

3) January 14, 2019 Meeting

Plaintiff also alleges that he was denied a full opportunity to speak at the meeting on January 14, 2019. Doc. 92 at 7. Both Plaintiff and Matthew McGill explain in their declarations that Mayor Nebel interrupted Plaintiff several times during a comment that lasted only two minutes and 45 seconds, and that “when he attempted to speak again during the public comment portion, Mayor Nebel told him he had used up his three minutes, when in fact he had not and he had spoken for less than others had.” Doc. 92-3 ¶ 11; Doc. 92-2 ¶ 16.

The meeting recording demonstrates that Plaintiff made two statements at the January 14, 2019 meeting. The first was during the public comment session following an agenda item about raises for council members. 1/14/19 at ¶ 46:52.^[5] His comment began with a question to Mayor Nebel, which Nebel answered. Plaintiff then continued expressing criticism of council members. Councilman Scott responded to a statement Plaintiff made to him, and a heated discussion between Scott, Plaintiff, and Nebel ensued, with audible audience reactions. At the end of Plaintiff's comment, he said “That's it,” and Nebel stated “Thank you very much.” Id. at ¶ 50:15. Plaintiff's first comment lasted about three minutes and 25 seconds. Following the public comment period about...