W. Flagler Assocs., Ltd. v. City of Miami

407 F.Supp.3d 1291

WEST FLAGLER ASSOCIATES, LTD., Plaintiff,

v.CITY OF MIAMI, Defendant.

Civil Action No. 19-21670-Civ-Scola

United States District Court, S.D. Florida.

Signed September 6, 2019

Andrew Clifford Hall, Adam Jason Lamb, Colleen Lynn Smeryage, Hall, Lamb, Hall & Leto, P.A., Miami, FL, for Plaintiff.

John Anthony Greco, Kerri Lauren McNulty, Christopher Allan Green, City of Miami Office of the City Attorney, Miami, FL, for Defendant.

Order on Defendant's Motion to Dismiss

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

This matter is before the Court on Defendant City of Miami's (the "City") motion to dismiss the Plaintiff's complaint. (ECF No. 8.) The Plaintiff responded (ECF No. 11) and the Defendant timely replied. (ECF No. 17.) Having considered the record, the parties' submissions, and the applicable law, the Court grants in part and denies in part the Defendant's motion. (ECF No. 8 .).

I. Background

Plaintiff West Flagler Associates ("West Flagler") is a limited partnership formed for the express purpose of building and operating a summer jai alai fronton with gambling, including a cardroom, in the City of Miami. (ECF No. 1-2 at ¶¶ 1-2.) In 2012, West Flagler's attorneys had informal discussions with the Zoning Administrator of the City of Miami to identify the areas zoned for its intended facility. (Id. at ¶ 11.) The Zoning Administrator advised that pari-mutuel, slot machine, and other gambling uses permitted by state law are considered "entertainment establishments" as the term is defined in the City's zoning code. (Id. ) The Zoning Administrator also identified the various zoning transects that permitted such use. (Id. ) West Flagler then requested a formal verification letter from the City of Miami confirming that pari-mutuel activities and slot machines are permitted in certain zoning transects. (Id. at ¶ 12.) In response, the Defendant sent a zoning verification letter which confirmed that gambling uses were allowed in the specific zoning transects identified by the Plaintiff. (Id. )

Based on the City's letter, the Plaintiff chose a suitable location that was zoned to permit an entertainment establishment. (Id. at ¶ 13.) The Plaintiff entered into a Memorandum of Understanding (the "MOU") with the owner of eighteen contiguous properties in the vicinity of 30^th Street and Biscayne Boulevard, which are all zoned for use as an entertainment establishment. (Id. ) The MOU contemplated that if West Flagler obtained a state gambling permit, then the owner of the properties would build the required facility at the location. (Id. ) After entering the MOU, the Plaintiff began the process of obtaining the gambling license from the state. (Id. at ¶ 15.)

As part of the process, the state of Florida required the Plaintiff to provide a confirmation from the City of Miami that the specific properties were all authorized for use as a jai alai fronton and cardroom. (Id. at ¶ 18.) The Plaintiff sought this confirmation from the City of Miami and received 18 separate zoning verification letters. (Id. at ¶ 20.) After considerable expenditure and resources, the state's Division of Pari-mutuel Wagering issued a permit authorizing West Flagler to conduct pari-mutuel wagering on the game of jai alai and operate a cardroom on the properties. (Id. at ¶ 21.)

On July 26, 2018, just 23 days after the Plaintiff received its permit, the Miami City Commission passed Resolution No. 18-0347. The Resolution directed the City Manager to initiate efforts to pass an amendment to the Miami zoning code that would require that entertainment establishments conducting pari-mutuel wagering be permitted only by special exception upon a four-fifths vote of approval by the City Commission. (Id. at ¶ 25.)

The Plaintiff applied for and was given a demolition permit to start the project on September 4, 2018. (Id. at ¶ 26.) On September 5, 2018, a proposed ordinance prepared by the City Manager pursuant to Resolution No. 18-0347 came before the Planning, Zoning, and Appeals Board. (Id. at ¶ 27.) The Planning, Zoning, and Appeal Board recognized that the Ordinance was intended to apply retroactively to Plaintiff and voted to deny the proposed ordinance. (Id. ) The City moved forward with the ordinance. On September 13 and 27, 2018, the City Commission held public hearings on the first and second readings of the proposed ordinance that would require the entertainment establishment conducting pari-mutuel wagering to receive approval by the City Commission by a four-fifths affirmative vote. (Id. at ¶ 28.) Ordinance 13791 (the "Ordinance") was adopted by affirmative vote of four of the five City Commissioners and became effective as of October 7, 2018. (Id. ) The Ordinance amended the City's zoning code to require that gambling facilities are allowed by "exception" with City Commission approval by a four-fifths vote. (Id. at ¶ 33.)

On January 17, 2019, the City of Miami Building Department rejected or refused to process the property owner's building permit for the jai alai fronton facilities on the basis that construction would not be permitted without an exception upon a four-fifths vote of approval by the City Commission pursuant to the Ordinance. (Id. at ¶ 34.)

II. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil Procedure 12(b)(6), must accept all allegations in the complaint as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, a plaintiff must nevertheless articulate "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Faced with a motion to dismiss, a court should therefore "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their accuracy and then determine whether they plausibly give rise to an entitlement to relief.’ " Am. Dental Ass'n. v. Cigna Corp. , 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "Regardless of the alleged facts, a court may dismiss a complaint on a dispositive issue of law." Surgery Center of Viera, LLC v. Southeastern Surveying and Mapping Corp. , No. 17-cv-754-orl-40TBS, 2018 WL 922202, at *3 (M.D. Fla. Jan. 31, 2018) (citations and quotations omitted).

III. Analysis

The Defendant's motion to dismiss attacks the Plaintiff's complaint by arguing that (1) its claims are not ripe; (2) the Plaintiff lacks standing to bring these claims; and (3) that each claim fails to state a cause of action. (ECF No. 8.) The Court will address each argument in turn.

A. Ripeness

The Defendant first argues that the Plaintiff's claims are not ripe because the Plaintiff has not proceeded through the administrative process to obtain an exception by a four-fifths vote of the Commissioners. (ECF No. 8 at 6.) In response, the Plaintiff argues that it is not required to exhaust administrative remedies and reapply for a building permit in order to bring its § 1983 due process claims (Counts IV and V). (ECF No. 11 at 2-3.) While the Plaintiff recognizes that the "Court's ripeness determination varies according to the type of claim alleged," neither party analyzes the ripeness argument on a claim by claim basis. (Id. at 3.) The Defendant's motion and reply make no effort to assert an argument specific to the Plaintiff's equitable estoppel, declaratory judgment, and impairment of contracts causes of action. (ECF No. 17.) Accordingly, the Court will construe the Plaintiff's motion as a motion to dismiss Counts IV and V on ripeness grounds.

Before embarking on a ripeness analysis, the Court must first determine which category of claims are being asserted by the Plaintiff. "An arbitrary and capricious due process claim can be either a facial challenge to the regulation or a challenge to the regulation as applied to the plaintiff's property." Eide v. Sarasota Cty. , 908 F.2d 716, 723 (11th Cir. 1990). A facial challenge asserts that the mere adoption of the regulation or ordinance is arbitrary and capricious. Id. On the other hand, an as applied challenge, in Plaintiff's case, would assert that West Flagler was arbitrarily and capriciously denied an exception to build its jai alai fronton because of the application of the ordinance to West Flagler's property. See id. at 723-24. "For a facial challenge, the remedy is the striking down of the regulation. In the case of an as applied challenge, the remedy is an injunction preventing the application of the regulation to plaintiff's property and/or damages resulting from the unconstitutional application." Id. at 722.

Count IV and Count V of the Plaintiff's complaint are almost identical except for the relief sought. (Compare ECF No. 1-2 at ¶¶ 55-62 with ¶¶ 65-72.) Count IV seeks damages pursuant to 42 U.S.C. § 1983 and Count V seeks a declaration that the ordinance is invalid. Because "the nature of the claim ... is often revealed by the remedy sought," Eide , 908 F.2d at 726, the Court construes Count IV as an as applied challenge and Count V as a facial challenge.

With regard to West Flagler's as applied due process challenge (Count IV), the Court finds that West Flagler's claim is not ripe. In Eide v. Sarasota County , the Eleventh Circuit articulated the ripeness standard for an as applied due process challenge. Id. at 724. The Court held that "in order to challenge the [City]'s application of the [ordinance] to [the Plaintiff's] property, [the Plaintiff] must first demonstrate that the [ordinance] has been applied to his property." Id. (emphasis in original). That is, the Eleventh Circuit requires that the zoning or permitting decision be "finally made and applied to the property at...