ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT are Defendant's Motion for Summary Judgment (Dkt. 73) and Plaintiffs' response in opposition (Dkt. 90).1 Plaintiffs' response also includes an embedded motion to strike the affidavits of Pamela Gibbs and George McKay (Dkt. 90), which Defendant opposes (Dkt. 94). Upon consideration, Defendant's motion for summary judgment is DENIED, and Plaintiffs' embedded motion to strike is DENIED.

I. BACKGROUND2

Shawn Kaleta is a licensed general contractor and owner Beach to Bay Construction, LLC. (Kaleta deposition, Dkt. 74-3 at 4:17-20, 13:5-10). Plaintiffs do business in the City of Anna Maria. (Id. at 16:5-9). Plaintiffs claim, under 42 U.S.C. § 1983, that the City violated their rights under the Equal Protection Clause by subjecting their construction project at Magnolia Avenue to different requirements than similarly situated properties, intentionally and arbitrarily treating them differently than similarly situated builders with respect to their property at 9802 Gulf Drive, banning them from construction projects in the City, and filing a DBPR complaint against them. (Amended Complaint, Dkt. 23, Count I). Plaintiffs also claim that the City's actions are retaliation against their exercise of their First Amendment rights. (Id., Count II).

II. STANDARD

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "A genuine factual dispute exists only if a reasonable fact-finder `could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). All facts are viewed and all reasonable inferences are drawn in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

The moving party bears the initial burden of showing that there are no genuine disputes of material fact. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories, and admissions on file to designate facts showing a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. The nonmoving party's evidence "cannot consist of conclusory allegations or legal conclusions." Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). The Court will not weigh the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party. See id.

III. DISCUSSION

When all facts are viewed and all reasonable inferences drawn in Plaintiffs' favor, the City fails to establish that there is no genuine dispute of material fact as to either count of the Amended Complaint. Plaintiffs' request to strike certain affidavits relied upon by the City in support of its motion for summary judgment shall be addressed first, because it impacts the evidence that may be considered in resolving the City's motion.

A. Plaintiffs Fail to Establish Grounds for Striking the Affidavits of Pamela Gibbs and George McKay

Motions should not be embedded in responses to other motions. See FED. R. CIV. P. 7(b)(1); Local Rule 3.01(a). Plaintiffs also failed to comply with Local Rule 3.01(g). Notwithstanding those issues, which are sufficient to deny the motion, Plaintiffs do not establish a legal basis for striking the affidavits. They generally argue, under Federal Rule of Civil Procedure 56(c)(4), the affidavits should be stricken because they are based on inadmissible hearsay. (Response, Dkt. 90 at p. 4). However, they do not cite any rules of evidence. (Id.). And Gibbs and McKay's affidavits show that the pertinent averments are based on personal knowledge. (July 7, 2017 Affidavit of Gibbs, Dkt. 75-1) (averring based on personal knowledge that "[f]rom the beginning of 2010 to the present, the City has neither denied Plaintiffs any Permits nor rejected any of Plaintiffs Permit applications");3 (July 10, 2017 Affidavit of Gibbs, Dkt. 75-2) (averments based on her personal knowledge about the City's only subdivision); (Affidavit of McKay, Dkt. 75-3) (averring based on his personal knowledge that the City required Plaintiffs to fence in their construction on Magnolia Avenue to separate the construction from a pedestrian sidewalk).

B. There is a Genuine Dispute of Material Fact Whether the City Intentionally Treated Plaintiffs and Their Properties Differently Than Similarly Situated Builders and Properties With No Rational Basis

Plaintiffs assert an Equal Protection Clause claim under a "class of one" theory, which "involves a plaintiff who `alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). "[T]he `similarly situated' requirement must be rigorously applied in the context of `class of one' claims." Leib v. Hillsborough Cnty. Pub. Transp. Comm'n, 558 F.3d 1301, 1307 (11th Cir. 2009). "Too broad a definition of `similarly situated' could subject nearly all state regulatory decisions to constitutional review in federal court and deny state regulators the critical discretion they need to effectively perform their duties." Griffin Indus., 496 F.3d at 1203. "Conversely, too narrow a definition of `similarly situated' could exclude from the zone of equal protection those who are plainly treated disparately and without a rational basis." Id.

"Class of one" plaintiffs must demonstrate that comparators are prima facie identical in all relevant respects. Id. at 1204. "[W]here the challenged governmental decision is simple or one-dimensional — for example, where the decision involves the application of a single criterion to a single issue — making out a `class of one claim' is generally easier than in cases where governmental action is `multi-dimensional, involving varied decisionmaking criteria applied in a series of discretionary decisions made over an extended period of time.'" Leib, 558 F.3d at 1307 (quoting Griffin Indus., 496 F.3d at 1203). At bottom, "[e]qual protection of the laws in the `class of one' context requires no more than that [plaintiffs] be `secure[d] . . . against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.'" Griffin Indus., 496 F.3d at 1208 (quoting Olech, 528 U.S. at 564).

1. Plaintiffs' Evidence Shows A Genuine Question of Whether the City Subjected the Magnolia Avenue Properties to Different Construction Requirements Than Similarly Situated Properties

Starting with the Magnolia Avenue properties, there is a genuine dispute of material fact of whether the Villa Rosa Way properties are similarly situated and whether the City treated the two properties differently, without a rational basis. The City's reasons for requiring a chain link fence at Magnolia but not at Villa Rosa had to do with greater traffic volume, which shifted the burden to Plaintiffs to present evidence that the properties are comparable. Plaintiffs' evidence shows that the City claimed that a fence was required at Magnolia because the project consisted of five or more lots, and that the City did not require a fence at the Villa Rosa project, consisting of more than five lots. All facts must be viewed and all reasonable inferences must be drawn in Plaintiffs' favor. Scott, 550 U.S. at 380. Accordingly, Plaintiffs establish a genuine question of whether the City intentionally and arbitrarily treated the Magnolia property differently than a similarly situated property when applying the one-dimensional criterion of requiring fences at developments consisting of five or more properties. See Leib, 558 F.3d at 1307. Under that criterion, the Villa Rosa properties are comparable to the Magnolia properties in all relevant respects, and Plaintiffs' equal protection claim establishes a jury question. Griffin Indus., 496 F.3d at 1205.4

2. There is a Genuine Question of Whether the City Intentionally and Arbitrarily Treated 9802 Gulf Drive Differently Because Plaintiffs Owned that Property

There is also a genuine dispute of material fact with regard to the City's treatment of Plaintiffs' 9802 Gulf Drive property. With all reasonable inferences drawn in Plaintiffs' favor, the evidence shows that the Mayor directed Building Official Jimmy Strickland to issue a red tag to 9802 Gulf Drive on July 31, 2015, even after Plaintiffs showed Strickland that there was no unpermitted work occurring at the property. The Mayor then directed Strickland to shut off the utilities at the property in September 2015. The Mayor has never ordered utilities to be shut off at the property of any other builder. Because of the problems, Kaleta told Strickland he planned to demolish the cottage on the property. Once the City Commission learned of Kaleta's plan, one commissioner proposed an ordinance designed to save the cottage. And in November 2015, the City Commission passed an ordinance requiring that no demolition permit shall be issued until approval of a building permit for the same lot or parcel. Therefore, once the City lifted the stop work order from 9802 Gulf Drive, Plaintiffs could not demolish the cottage on the property without complying with the new ordinance. A reasonable juror could find that the City intentionally treated 9802 Gulf Drive differently than properties owned by other builders, simply because it was owned by Plaintiffs.

There is also a genuine question of whether Frank Agnelli is a similarly situated builder in all relevant respects. He and his business engage in a similar volume of construction activities in the City as Plaintiffs, and their properties have received as many, if not more, red tags. The Mayor has never directed city employees to shut off the utilities at Agnelli's red tagged properties, even though he has received several red tags and the Mayor knows he is more prone to errors than Plaintiffs. Accordingly, the City has not established the absence of a genuine question of whether it had a rational basis for treating Plaintiffs' 9802 Gulf Drive differently than red tagged properties owned by similarly situated builders.

3. There is No Evidence that the City Made a Final Decision to Ban Plaintiffs

The City has shown the absence of a genuine question of whether it banned Plaintiffs from obtaining permits. Although Plaintiffs provide evidence that City employees stated that they could not accept permit applications or issue permits for a couple of months after the Mayor announced a ban, and that the City's Planning and Zoning Commission affirmed the denial of a permit in November 2015, the evidence shows that the City continued to grant permits to Plaintiffs even after the Mayor's statements. There is no evidence, therefore, that the City denied Plaintiffs a permit based on the Mayor's statements. City employees temporarily refusing to accept or issue permits was not a final decision that gives rise to an equal protection claim. See Strickland v. Alderman, 74 F.3d 260, 265-66 & n.7 (11th Cir. 1996) (holding that a plaintiff's equal protection claim was not ripe because the evidence showed only that city employees informed plaintiff and his prospective buyers that they would be unable to obtain permits).

4. There is a Genuine Question of Whether the City's DBPR Complaint Against Plaintiffs Violated Their Equal Protection Rights

The City has not filed a DBPR complaint against any builder other than Kaleta, and a complaint against Kaleta's license is effectively a complaint against Beach to Bay Construction because he is the general contractor and owner. The Mayor testified that the basis for the DBPR complaint against Plaintiffs was the three or four red tags issued to Plaintiffs' properties. Agnelli and his business are similarly situated to Plaintiffs with respect to the DBPR complaint, because the City has issued as many, if not more, red tags to their properties.5 The evidence, therefore, demonstrates a genuine question of whether the City intentionally treated Plaintiffs differently than similarly situated builders, without a rational basis, in applying its one-dimensional criterion for a DBPR complaint. See Leib, 558 F.3d at 1307.

5. Plaintiffs' Equal Protection Claim is Ripe

The City generally argues that Plaintiffs have not presented a ripe equal protection claim. (Motion for Summary Judgment, Dkt. 73 at pp. 12-13). The City relies on a case in which the Eleventh Circuit affirmed judgment as a matter of law against a plaintiff who failed to establish the ripeness of an equal protection claim based on denied permits. Strickland v, 74 F.3d at 266.6 But the denial of permits is only one of several bases Plaintiffs rely on to support their equal protection claim. And, as noted, they present a triable equal protection claim to the extent it is based on the City's decisions about the Magnolia Avenue development, the 9802 Gulf Drive property, and the DBPR complaint.

The evidence sufficiently shows the finality of each of those decisions. Kaleta testified that he negotiated with the City's Building Department about the fence around the Magnolia project, but it would not issue building permits until he installed the fence. Plaintiffs installed the fence, and the City issued the building permits. Strickland filed the DBPR complaint against Plaintiffs after the Mayor discussed doing so at a City Commission meeting. The Mayor directed a red tag and utility shutoff at 9802 Gulf Drive. And the facts viewed in Plaintiffs' favor show that the red tag was not lifted from 9802 Gulf Drive until after the City Commission passed an ordinance that prevented Plaintiffs from demolishing the cottage on the property without obtaining a new building permit. Those actions, therefore, are final for purposes of an equal protection claim. See Olech, 528 U.S. at 563 (holding that a plaintiff had a legally sufficient equal protection claim against a village even though the village reversed the challenged action within a few months).

C. There is a Genuine Question of Whether the City Retaliated Against Plaintiffs' Exercise of Their First Amendment Rights

The City fails to establish the absence of a genuine dispute of material fact of whether it engaged in adverse actions against Plaintiffs because they exercised their First Amendment rights. A plaintiff asserting a First Amendment retaliation claim "must show that (1) her speech was constitutionally protected; (2) she suffered adverse conduct that would likely deter a person of ordinary firmness from engaging in such speech; and (3) there was a causal relationship between the adverse conduct and the protected speech." Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir. 2011) (citing Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)). "`[T]he effect on freedom of speech may be small, . . . it need not be great in order to be actionable.'" Bennett, 423 F.3d at 1254 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). For example, "the retaliatory issuance of parking tickets totaling $35," Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.2003), a campaign of petty harassments, including holding a plaintiff up to ridicule for bringing a birthday cake to the office, Bart, 677 F.2d at 624-25, and a civil malicious prosecution lawsuit brought by public officials, Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir.1983), are sufficient to meet the adverse conduct requirement. Bennett, 423 F.3d at 1255.

Plaintiffs engaged in activities that qualify for First Amendment protection. Specifically, their counsel's comments made on their behalf at a City Commission meeting. The City provides no legal basis for why those comments do not constitute protected speech. And Plaintiffs filed lawsuits against the City in 2013 based on violations of rights afforded by Florida law. Those lawsuits are a protected form of petitioning the government for a redress of grievances under the First Amendment. See Bennett, 423 F.3d at 1254 (citing Cate, 707 F.2d at 1190); see also Tuccio v. Marconi, 589 F.3d 538, 541 (2d Cir. 2009) ("To be sure, our constitutional doctrine prohibits government officials from punitive retaliation against persons who exercise their First Amendment right to sue the government.").

The evidence, viewed in Plaintiffs' favor, shows adverse conduct. The City imposed arbitrary construction requirements at their Magnolia Avenue properties, demanded that they pay for changes to the City drainage system around Magnolia Avenue, authorized the City attorney to take legal action against them to recover the costs of those changes, issued red tags to several of their properties, shut off utilities at 9802 Gulf Drive, filed a DBPR complaint against them, and passed ordinances negatively affecting their property. There is also evidence of a campaign of petty harassments by city officials, including the Mayor publicly stating that Kaleta needed to clean up his act and Commissioner Nancy Yetter causing a former city commissioner to make a complaint against Kaleta to the DCF hotline for alleged mistreatment of children.7 That adverse conduct is likely to deter a person of ordinary firmness from exercising their First Amendment rights. Castle, 631 F.3d at 1197 (citing Bennett, 423 F.3d at 1250).

With all reasonable inferences drawn in Plaintiffs' favor, the City has failed to establish the absence of a genuine question of whether there is a causal link between their exercise of First Amendment rights and its adverse conduct. Plaintiffs sued the City to enforce their rights under Florida law in 2013. The challenged actions occurred in 2014 and 2015. The City relies on Kaleta's testimony that he is not sure whether there is a direct connection between the lawsuit against the City and some of its adverse actions, but he did not conclusively say that he believed there was no connection. (Kaleta deposition, Dkt. 74-3 at 70:22-74:18). Based on the extent and the severity of adverse conduct engaged in by the City against Plaintiffs, ranging from passing ordinances affecting their property to causing someone to file a DCF complaint against Kaleta, there is a genuine question of whether "they would have undertaken their allegedly retaliatory actions even absent the plaintiffs' speech." Bennett, 423 F.3d at 1250 n.3.

D. The City Fails to Show the Absence of A Genuine Question of Whether The Challenged Actions Were Officially Sanctioned or Ordered by the City

The City briefly argues in the alternative that even if there is evidence showing violations of Plaintiffs' constitutional rights, it is entitled to summary judgment on their section 1983 claims because the undisputed material facts show those violations did not result from a policy or custom.

"It is well established that a municipality may be held liable under § 1983 only when the deprivation at issue was undertaken pursuant to city `custom' or `policy,' and not simply on the basis of respondent superior." Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir. 1991). "Thus, `recovery from a municipality is limited to acts that are, properly speaking, acts "of the municipality" — that is, acts which the municipality has officially sanctioned or ordered.'" Id. (quoting Pembaur. Cincinnati, 475 U.S. 469, 480 (1986)). "[A] municipal official who has `final policymaking authority' in a certain area of the city's business may by his or her action subject the government to § 1983 liability when the challenged action falls within that authority." Id.

The City fails to meet its burden of showing the absence of a genuine question of whether the actions challenged by Plaintiffs were officially sanctioned by the City. There is evidence that City employees acted at the Mayor and the city commissioners' direction when they required Plaintiffs to install a fence around the Magnolia Avenue construction. There is also evidence that the Mayor personally directed city employees to issue a red tag and shut off the utilities at 9802 Gulf Drive. The City Commission then enacted an ordinance designed to inhibit Plaintiffs from demolishing the cottage on that property after the red tag was lifted. And either the Mayor or Strickland made the decision to file a DBPR complaint against Plaintiffs, only days after the Mayor stated at a commission meeting that the City was documenting their violations with the DBPR.

With all reasonable inferences drawn in Plaintiffs' favor, there is sufficient evidence for a reasonable juror to find that the City officially sanctioned the challenged actions of its officials and employees. Even if those officials did not actually have that authority, there is sufficient evidence to create a genuine question of whether their decisions, as a practical matter, were final. See Willingham v. City of Valparaiso Fla., 638 F. App'x 903, 907 (11th Cir. 2016) (affirming the district court's denial of a city's summary judgment motion where "the evidence overwhelmingly showed that Mayor Arnold's decision to terminate Willingham was not subject to any meaningful administrative review."); see also Brown, 923 F.2d at 1480 ("Our task, however, is not to determine who, in fact, wields final policymaking authority[.]").

IV. CONCLUSION

Defendant's Motion for Summary Judgment (Dkt. 73) is DENIED. Plaintiffs' embedded motion to strike the affidavits of Pamela Gibbs and George McKay (Dkt. 90) is DENIED.

APPENDIX: FACTUAL BACKGROUND

Plaintiffs renovate properties and build new residences. (Kaleta deposition, Dkt. 74-3 at 58:15-59:21). Many of the new residences are large vacation homes owned or rented by nonresidents. See (id.). Unlike most builders in the City, Plaintiffs own the majority of the real properties on which it builds. (Id. at 14:8-16, 116:2-11). They are among the most prolific builders in the City. See (id. at 115:4-11).

Anna Maria commissioners and the Mayor have expressed dissatisfaction with Plaintiffs' business practices. See, e.g., (The Islander Sept. 15, 2015 article, Dkt. 90-5) (Mayor stated "[Kaleta] needs to clean up his act."); (Exhibits to Carter deposition, Dkt. 90-8) (City Commissioner Carol Carter states in e-mail to other commissioners "[w]hat can we do? Drag our feet? Ask for more details? Scrutinize plans to the nth degree? Hire someone qualified to watch all the sites daily to see that any approved plans are followed exactly?. . . . I am sick at what this egotist has already done to our residential community. . . . I am petrified by the continuing and even more rapid decline in our resident/voter population in the City of Anna Maria."); (Exhibits to Webb deposition, Dkt. 90-9) (City Commissioner Chuck Webb states in e-mail to other commissioners that they should "save" a cottage owned by Plaintiffs by enacting an ordinance.).

Plaintiffs claim that they engaged in protected speech by filing civil claims against the City in 2013 under the Bert J. Harris Private Property Rights Protection Act, FLA. STAT. § 70.001, (Kaleta deposition, Dkt. 74-3 at 52:12-19, 69:15-71:8),1 and by their counsel commenting on their behalf at City Commission meetings, representing them before the City's Planning and Zoning Commission, and corresponding with the City on their behalf, (Minutes of September 10, 2015 City Commission meeting, Dkt. 90-8); (Affidavit of Kaleta, Dkt. 90-10 at ¶ 4); (Correspondence dated Aug. 17, 2015, Dkt. 23-2). (Amended Complaint, Dkt. 23 at ¶ 92).

A. Plaintiffs' Magnolia Avenue Construction Project

One of Plaintiffs' projects was the construction of new buildings on five adjacent real properties at 209, 211, 213, 215, and 217 Magnolia Avenue. (Kaleta deposition, Dkt. 74-3 at 81:4-86:7). Plaintiffs applied for building permits for the five properties in July 2014. (Affidavit of Kaleta, Dkt. 90-10 at ¶ 3).

Kaleta testified that city employees Bob Welch and George McKay required Plaintiffs to install a chain link fence on the site before the City would issue building permits. (Kaleta deposition, Dkt. 74-3 at 81:4-83:12). He testified that Welch and McKay told him that the Mayor and the city commissioners instructed them to require the fence. (Id.). Kaleta averred that the City claimed to require the fence because "the development consisted of five or more properties," (Affidavit of Kaleta, Dkt. 90-10 at ¶ 3), but asserts that the City did not require a chain link fence around a construction project on Villa Rosa Way that consisted of more than five lots, (Kaleta deposition, Dkt. 74-3 at 87:6-15). The City presents evidence that it required a fence around the Magnolia project because of its proximity to commercial properties and the amount of pedestrian traffic near the site, (Affidavit of McKay, Dkt. 75-3 at ¶¶ 3-4), and did not require a fence around the Villa Rosa project because it is residential only, see (July 10, 2017 Affidavit of Gibbs, Dkt. 75-2 at ¶ 4).

The City claimed that Plaintiffs damaged a City-owned rear alley drainage system during the Magnolia project, it had to repair the system, and Plaintiffs have not repaid it. See (Minutes of Sept. 10, 2015 City Commission meeting, Dkt. 90-8). Kaleta testified that Plaintiffs repaired any damage, but the City had contractors make more changes as part of a City-wide retrofit, and demanded that Plaintiffs pay for those changes as well. (Kaleta deposition, Dkt. 74-3 at 91:5-23).

The City issued temporary certificates of occupancy for 209 and 211 Magnolia Avenue, but did not issue a final certificate because of the dispute over the rear alley drainage system. (Correspondence, Dkt. 23-2). On August 17, 2015, Plaintiffs' counsel, who also represents third parties that own 209 and 211 Magnolia Avenue, sent a letter to the City demanding that the City issue a final certificate of occupancy, notwithstanding the dispute between the City and Plaintiffs. (Id.). At a September 15, 2015 meeting, the City Commission authorized the City attorney to take legal action against Plaintiffs over the rear alley drainage system. (Meeting Minutes, Dkt. 90-8). Plaintiffs' counsel attended that meeting and spoke on their behalf. (Id.).

B. Plaintiffs' 9802 Gulf Drive Property

Plaintiffs own property at 9802 Gulf Drive. (Kaleta deposition, Dkt. 74-3 at 98:10-22). On the property is a cottage built in the 1920s. (Id. at 98:10-16). Plaintiffs agreed to a ten year lease with a third party tenant who initially used the property as a residence, but intended to convert it to commercial use. (Id. at 98:13-16, 99:2-21).

Plaintiffs obtained an electrical permit for 9802 Gulf Drive in February 2013 and completed all of the electrical work. (Id. at 99:22-100:11, 106:3-8). The tenant started some tiling work in summer 2015. (Id. at 109:3-8). On July 31, 2015, Building Official Jimmy Strickland issued a stop work ("red tag") order. (Stop Work Order, Dkt. 23-3); (Strickland deposition, Dkt. 90-7 at 96:8-19). Kaleta testified that Strickland told him the Mayor directed him to red tag 9802 Gulf Drive, even though Plaintiffs had shown Strickland that there was no electrical work or other work requiring a permit occurring at the property. (Kaleta deposition, Dkt. 74-3 at 106:13-107:11).

In September 2015, the Mayor directed that power and water be cut off at 9802 Gulf Drive. (Murphy deposition, Dkt. 90-5 at 70:9-12).2 Plaintiffs terminated the lease with their tenant because of the problems at the property. (Kaleta deposition, Dkt. 74-3 at 104:6-11). There is no evidence that the Mayor directed City employees to shut off the utilities at any other property subject to a stop work order. (Murphy deposition, Dkt. 90-5 at 70:21-25); see also (Strickland deposition, Dkt. 90-7 at 101:10-13) ("Typically we don't turn the power off."); (Agnelli deposition, Dkt. 74-1 at 66:3-6) (Another builder testifies that he has never had power shut off at his business's properties even though several of his properties have received stop work orders.).

Kaleta testified that at some time after Strickland issued the stop work order at 9802 Gulf Drive, he told Strickland "I'll just go ahead and demo it." (Kaleta deposition, Dkt. 74-3 at 124:21-125:18). On September 27, 2015, City Commissioner Chuck Webb sent an e-mail to the other city commissioners stating that someone told him that he "stopped Kaletta [sic] from pulling permits in Anna Maria and would not allow construction on the [9802] Gulf property," and that "[w]hile I am happy to take credit for this, the credit goes to the Mayor." (Exhibits to Webb deposition, Dkt. 90-9). In the e-mail, Webb proposed "[l]ets [sic] see if we can save that cottage partially by tieing [sic] demo permits to building permits." (Id.). In November 2015, the City Commission passed Ordinance No. 15-806, requiring that a demolition permit shall not be issued prior to approval of a building permit on the same lot or parcel. (Id.).3

Strickland also issued red tags to 209 and 211 Magnolia Avenue on August 10, 2015 for not obtaining a certificate of occupancy. (Stop Work Orders, Dkt. 23-3).4 Although third parties own those properties, the City had not issued a final certificate of occupancy as a result of its dispute with Plaintiffs regarding the drainage system restoration. (Correspondence, Dkt. 23-2); (Kaleta deposition, Dkt. 74-4 at 177:17-179:22); see also (Agnelli deposition, Dkt. 74-1 at 25:14-23, 28:3-22) (Another builder testified that builders know the City will not issue a final certificate of occupancy until they repair damage to City property caused by construction activity.).

C. The Mayor Publicly Stated that Plaintiffs Are Banned

City Mayor Daniel Murphy publicly stated in September 2015 that the City was banning Plaintiffs from future building projects and from pulling permits, citing safety concerns. (The Islander Sept. 15, 2015 article, Dkt. 90-5); (Murphy deposition, Dkt. 90-5 at 10:10-13). The City provides evidence indicating that it has never denied Plaintiffs a permit, notwithstanding the Mayor's statements. (July 7, 2017 Affidavit of Gibbs, Dkt. 75-1). But Kaleta testified that City employees refused to accept permit applications from Plaintiffs or issue permits to them after the Mayor announced the ban. (Kaleta deposition, Dkt. 74-3 at 123:1-124:17, Dkt. 74-4 at 211:15-22). He averred that the City denied a permit in August 2015, and that the City's Planning and Zoning Commission affirmed the denial in November 2015. (Affidavit of Kaleta, Dkt. 90-10 at ¶ 4). Kaleta testified that the City lifted the ban a couple of months after the Mayor's statements and that Plaintiffs have since received permits. (Kaleta deposition, Dkt. 74-4 at 208:7-21). There is no evidence that the Mayor ever announced a ban on any other builder in the City, even those he acknowledges "tend to have more errors" than Plaintiffs. See (Murphy deposition, Dkt. 90-5 at 192:3-16); (Frank Agnelli deposition, Dkt. 74-1 at 65:25-66:2).

D. Florida Department of Business and Professional Regulation and Department of Children and Families Complaints Against Kaleta

Strickland filed a Department of Business and Professional Regulation complaint against Kaleta on September 16, 2015. (Dkt. 23-3). Although the DBPR complaint was filed only against Kaleta, the complaint affected Beach to Bay Construction because he is its licensed general contractor and sole owner. (Exhibits to Strickland deposition, Dkt. 90-7) (noting that "DBPR complaints could eventually result in Kaleta's Beach to Bay contracting firm losing the ability to serve as a certified contractor in Florida"). The evidence shows that the Mayor discussed filing a DBPR complaint against Plaintiffs at a City Commission meeting, and that Strickland may have worked with the Mayor while drafting the complaint. (Minutes for Sept. 10, 2015 City Commission meeting, Dkt. 90-8) ("Mayor Murphy stated the City is beginning to document the contractor's violations with the [DBPR]."); (Strickland deposition, Dkt. 90-7 at 119:16-3); (Murphy deposition, Dkt. 90-5 at 100:16-22). Murphy testified that the basis for the complaint was the City issuing three or four red tags to Plaintiffs' properties. (Murphy deposition, Dkt. 90 at 100:16-22). A city employee has not filed a DBPR complaint against any other builder, even those who have received red tags at twelve or more properties. (Id. at 192:17-193:4); (Agnelli deposition, Dkt. 74-1 at 65:10-15).

Former city commissioner Christine Toilette made a complaint against Kaleta to the Department of Children and Families hotline after Commissioner Nancy Yetter called her and stated that she and Commissioner Carol Carter observed Kaleta leave children in a car while he voted on election day in 2016. (Toilette deposition, Dkt. 90-11 at 20:21-21:6). According to Toilette, Yetter and Carter knew that Toilette herself had been a victim of child abuse. (Id. at 23:1-2).

E. Plaintiffs Identify Frank Agnelli as a Builder Who is Similarly Situated to Them

There is at least one other builder, Frank Agnelli, whose company engages in a similar, if not larger, volume of construction projects in the City as Plaintiffs.5 He testified that his companies had three to four hundred projects within the City in the last ten years, he believes he is currently doing the most builds in the City, and he is pulling the most permits. (Agnelli deposition, Dkt. 74-1 at 10:21-23, 33:7-9, 69:15-21); see also (Kaleta deposition, Dkt. 74-3) (Kaleta testified that Agnelli may be the biggest builder in the City currently.); (Murphy deposition, Dkt. 90-5 at 190:7-13) (The Mayor testified that Kaleta and Agnelli are the two biggest builders in the City.).

The Mayor testified that Agnelli's "business model appears to be I'm the fastest and I'm the quickest and I get things done. So when you use that business model . . . you tend to have more errors." (Murphy deposition, Dkt. 90-5 at 192:3-16). The Mayor acknowledged that the City has issued twelve or more red tag orders to Agnelli and his properties. (Id. at 192:21-193:1); see also (Agnelli deposition, Dkt. 74-1 at 38:18-21) (identifying twelve specific red tags). And Agnelli believes he has been issued the most red tags of all builders in the City within the last five years, including ten or fifteen within the past year alone. (Agnelli deposition, Dkt. 74-1 at 24:18-20, 29:1-5). The City has never turned off power at any of his red tagged properties. (Id. at 66:3-6).