JOHN ANTOON, II, District Judge.
Plaintiffs and Intervenors challenge the constitutionality of Ordinance 2011-1 ("the Ordinance"), which was passed by Defendant Seminole County, Florida ("the County") on January 11, 2011, and which bans "simulated gambling devices" in the County. Plaintiffs and Intervenors also allege that the policy of enforcing the Ordinance instituted by Donald Eslinger in his official capacity as the Sheriff of Seminole County violates Plaintiffs' and Intervenors' constitutional rights.
This case is before the Court on two motions filed by Sheriff Eslinger: the Motion for Summary Final Judgment (Doc. 74) and the Motion to Dismiss, Alternative Motion for Summary Final Judgment (Doc. 76). Initially, Sheriff Eslinger filed his motion for summary judgment, but the parties then seemingly agreed that Sheriff Eslinger would withdraw his motion for summary judgment and replace it with a motion to dismiss. Apparently there was some miscommunication or disagreement between the parties, however, because rather than withdraw his motion, Sheriff Eslinger simply filed an additional motion seeking dismissal. Thus, both motions remain pending before the Court.
Plaintiffs, Intervenor Empire PhoneSweep, and Intervenor Jack's Business Centers operate internet centers in Seminole County, Florida.
Initially, Plaintiffs requested and were granted a temporary restraining order ("TRO") that enjoined the enforcement of the Ordinance. (Doc. 8). Thereafter, however, this Court denied Plaintiffs' and Intervenors' motion for a preliminary injunction and dissolved the TRO. (Doc. 46). Once the TRO was dissolved, Sheriff Eslinger commenced enforcement efforts against Plaintiffs and Intervenors, including issuing a "Warning Notice of Code Violation" to Plaintiffs' and Intervenors' business locations. (Second Am. Compl. ("SAC"), Doc. 68, at 24). The Warning notified Plaintiffs and Intervenors that Sheriff Eslinger believed that they were in violation of the Ordinance and advised Plaintiffs and Intervenors that they had twenty-four hours to correct the violation and that failure to do so may result in the issuance of a citation and/or referral of the matter to the code enforcement board. (
"The court shall grant summary judgment if the movant shows that 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). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
Sheriff Eslinger does not dispute the essential facts as alleged by Plaintiffs and Intervenors; instead, Sheriff Eslinger asserts that even if those facts are true, he is entitled to summary judgment. First, Sheriff Eslinger asserts that he is entitled to a qualified immunity defense. Next, he asserts that Plaintiffs and Intervenors have no constitutional right to purvey simulated gambling devices and that therefore he did not violate their rights. Finally, Sheriff Eslinger asserts that he was improperly named as a defendant. Each argument will be addressed in turn.
Sheriff Eslinger's first argument-that he is entitled to qualifed immunity-fails because it is undisputed that he is sued only in his official capacity, and the defense of qualified immunity is available only to defendants who are sued in their individual capacities.
Next, Sheriff Eslinger summarily states that Plaintiffs and Intervenors have no constitutional or "clearly established" right to purvey simulated gambling devices. Presumably, Sheriff Eslinger is arguing that the Ordinance does not violate Plaintiffs' or Intervenors' constiutional rights and so his enforcement of the Ordinance does not either. In support, Sheriff Eslinger merely cites to caselaw that states that the activity of gambling in general is not constitutionally protected; he makes no attempt to analyze the Ordinance or the application thereof. As the Ordinance clearly regulates more than just traditional gambling, the Sheriff's argument is insufficient to establish that he is entitled to summary judgment.
Finally, Sheriff Eslinger argues that he is an improper defendant in this case and that suing him is wasteful and duplicative of the claims against the County. This argument is repeated and expanded the Sheriff's motion to dismiss and will be discussed in the section addressing that motion.
"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.'" Fed. R. Civ. P. 8(a)(2). "`[D]etailed factual allegations'" are not required, but "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'"
As noted, Plaintiffs and Intervenors have sued both the County and Sheriff Eslinger in his official capacity. Sheriff Eslinger asserts that suing both him in his official capacity and the County is a waste of public resources because an official-capacity suit against him is duplicative of a suit against the County. Sheriff Eslinger additionally argues that, even if the claims are not duplicative, he is still not a proper Defendant in this case because he is not the "final policymaker" with regard to the enforcement of the Ordinance. Sheriff Eslinger's arguments are not well-taken.
As a general rule, "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity" so long as that entity "receives notice and an opportunity to respond."
In this case, Plaintiffs and Intervenors have challenged two separate, although related, policies. The first "policy" that Plaintiffs and Intervenors challenge is the Ordinance itself, and the County is the proper "policymaker" to defend a constitutional challenge to one of its ordinances. The second policy is the policy of enforcing the Ordinance. Plaintiffs and Intervenors assert that Sheriff Eslinger is the policymaker responsible for the enforcement policy; Sheriff Eslinger asserts that it is either the County itself or the County's Code Enforcement Board ("the CEB").
Sheriff Eslinger's argument is based on the fact that failure to comply with the Ordinance could result in the matter being turned over to the CEB and that the CEB, in turn, would have the authority to impose administrative fines or other noncriminal penalties. As Plaintiffs and Intervenors point out, however, the Sheriff is also authorized to issue citations directly without turning the matter over to the CEB. Furthermore, even if a matter is ultimately turned over to the CEB, Sheriff Eslinger concedes that he at least sets the policies for initiating the enforcement. (Doc. 76 at 14). Thus, as alleged by Plaintiffs and Intervenors, Sheriff Eslinger is the policymaker for the allegedly unconstitutional enforcement of the Ordinance. Accordingly, Sheriff Eslinger is a proper Defendant in this suit.
In accordance with the foregoing, it is