Opinion
Case No. 5:19-cv-461-Oc-30PRL
11-13-2019
Patrick MCARDLE, Courtney Ramsey and Anthony Cummings, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF OCALA, FL, Defendant.
Andrew Pozzuto, Alavi, Bird & Pozzuto, PA, Ocala, FL, Chelsea Dunn, Southern Legal Counsel, Inc., Gainesville, FL, Daniel B. Tilley, ACLU Foundation of Florida, Inc., Jacqueline Nicole Azis, American Civil Liberties Union of Florida, Miami, FL, Jodi Lynn Siegel, Kirsten Anderson, Southern Legal Counsel, Inc., Gainesville, FL for Plaintiffs. Patrick G. Gilligan, Davie Law Firm, P.A., Green Cove Springs, FL, for Defendant.
Andrew Pozzuto, Alavi, Bird & Pozzuto, PA, Ocala, FL, Chelsea Dunn, Southern Legal Counsel, Inc., Gainesville, FL, Daniel B. Tilley, ACLU Foundation of Florida, Inc., Jacqueline Nicole Azis, American Civil Liberties Union of Florida, Miami, FL, Jodi Lynn Siegel, Kirsten Anderson, Southern Legal Counsel, Inc., Gainesville, FL for Plaintiffs.
Patrick G. Gilligan, Davie Law Firm, P.A., Green Cove Springs, FL, for Defendant.
ORDER
JAMES S. MOODY, JR., UNITED STATES DISTRICT JUDGE Patrick McArdle, Courtney Ramsey, and Anthony Cummings, all of whom are homeless residents of the City of Ocala, are suing the City to challenge the constitutionality of its "open lodging" ordinance. Plaintiffs allege the ordinance criminalizes sleeping per se for the homeless, in violation of various constitutional provisions.
The City moves to dismiss three of Plaintiffs' challenges: (1) that the ordinance is unconstitutionally vague, (2) that the ordinance violates Plaintiffs' substantive due process rights, and (3) that the ordinance violates the equal protection clause. The City relies primarily on Joel v. City of Orlando , 232 F.3d 1353 (11th Cir. 2000), in which the Eleventh Circuit held that a similar ordinance was not unconstitutional. As explained below, the Court concludes Joel is distinguishable and that the allegations in the Complaint are sufficient to withstand the City's Motion.
Because the City is only challenging three of the counts in the Complaint, this section will be limited to those facts necessary to resolve the issues before the Court.
McArdle, Ramsey, and Cummings are all residents of the City who are homeless. Each has been arrested for violating the City's open lodging ordinance, which provides as follows:
Sec. 42-10. - Trespass and unlawful lodging.
(a) Definitions.
(1) "Lodge" means to rest while awake or sleep on property described in subsection (b) of this section when one is:
a. Inside, on, or near a tent or sleeping bag, or asleep atop or covered by materials (i.e., bedroll, cardboard, newspapers) or inside some form of temporary shelter; and/or
b. Near a campfire he or she has built; and/or
c. When awakened relates that he or she is otherwise homeless.
(2) "Person without authority" means one who has not received authorization, license, or invitation by any owner or lessee, or his or her agent.
(b) Prohibitions.
(1) It shall be unlawful for any person without authority to trespass upon, enter, or remain in any church building or other public building, swimming pool, or enclosure surrounding any swimming pool, public building or athletic field in the city, except during the hours and at such times when such premises or building may be lawfully open for use by the public.
(2) It shall be unlawful for any person at any time to lodge in the open on private property, in vacant lots, in or under any bridge or structure, in any railroad car, without owning the same or without permission of the owner or person entitled to possession of same.
(3) It shall be unlawful for any person at any time to lodge in the open on public property, to include, but not limited to, government buildings, parks, sidewalks, public benches or government owned right-of-way.
(c) Evidence. Merely sleeping in a place listed in subsection (b) of this section shall not be enough for a citation or arrest under this section. There must be one or more indicia of lodging, including but not limited to those listed in subsection (a)(1).
§ 42-10, Ocala City Code. Because the ordinance applies to both public and private property, the ordinance prohibits a person from resting anywhere in the City if there are other indicia of lodging, unless the person has authorization to lodge there.
Plaintiffs allege they have been arrested for violating the open lodging ordinance during the day when homeless shelters are not open and on nights when the homeless shelters were at capacity, meaning Plaintiffs had no alternative place to sleep. Because the ordinance applies even when there are no alternative places to rest, Plaintiffs argue that the ordinance provides no opportunity for the City's homeless residents to comply with it since sleeping is an involuntary act of basic survival.
MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim on which relief can be granted. When reviewing a motion to dismiss, courts must limit their consideration to the well-pleaded allegations, documents central to or referred to in the complaint, and matters judicially noticed. See La Grasta v. First Union Securities, Inc. , 358 F.3d 840, 845 (11th Cir. 2004) (internal citations omitted); Day v. Taylor , 400 F.3d 1272, 1276 (11th Cir. 2005). Courts must accept all factual allegations as true and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus , 551 U.S. 89, 93–94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007).
Legal conclusions, however, "are not entitled to the assumption of truth." Ashcroft v. Iqbal , 556 U.S. 662, 664, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In fact, "conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal." Davila v. Delta Air Lines, Inc. , 326 F.3d 1183, 1185 (11th Cir. 2003). To survive a motion to dismiss, a complaint must instead contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks and citations omitted). This plausibility standard is met when the plaintiff pleads enough factual content to allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (internal citations omitted).
DISCUSSION
The City moves to dismiss three of Plaintiffs' claims: (1) that the open lodging ordinance is vague, both facially and as applied; (2) that the open lodging ordinance violates Plaintiffs' substantive due process rights, namely the fundamental right of bodily integrity; and (3) that the ordinance violates the equal protection clause because it targets a politically unpopular group. The City relies primarily on Joel , an Eleventh Circuit Court of Appeals opinion that considered a similar Orlando ordinance. The Court will summarize Joel , and then discuss its applicability to the City's open lodging ordinance.
A. Precedent under Joel , 232 F.3d 1353
James Joel, a homeless resident of Orlando, was arrested for violating an ordinance that prohibited camping on city property. The ordinance provided as follows:
Camping Prohibited; exceptions.
(1) For the purposes of this section, "camping" is defined as:
(a) Sleeping or otherwise being in a temporary shelter out-of-doors; or
(b) Sleeping out-of-doors; or
(c) Cooking over an open flame or fire out-of-doors.
(2) Camping is prohibited on all public property, except as may be specifically authorized by the appropriate governmental authority.
(3) Camping is prohibited on all property in the City used for residential purposes; provided, however, that camping is permitted on such property with the permission and consent of the property owner.
232 F.3d at 1356. Law enforcement officers were then given a handbook that clarified when someone violated the ordinance. Specifically, the handbook explained:
Local court rulings have held that in order to "camp", the suspect must do more than simply fall asleep on city property. There must be some indication of actual camping. One or more of the following should exist before an arrest under this section is appropriate:
(1) the property must be public property, including highway overpasses;
(2) the suspect is inside a tent or sleeping bag, or the suspect is asleep atop and/or covered by materials (i.e. bedroll, cardboard, newspapers), or inside some form of temporary shelter;
(3) the suspect has built a campfire;
(4) the suspect is asleep and when awakened volunteers that he has no other place to live. Homeless persons should additionally be advised of alternative shelter available at the Coalition for the Homeless.
(5) Upon arrest, evidence of camping (sleeping bags, bedroll, cardboard, newspapers, etc.), should not be destroyed, but should be seized and placed in Property and Evidence. Other personal property of the Defendant, which is not evidence, should be taken to the Orange County Jail with the Defendant.
Simply being asleep in a public place during late night or early morning hours makes the camping case stronger, but is not alone sufficient to justify an arrest under this section unless there is some indicia of true "camping" as noted above.
Id.
Joel sued the City of Orlando in district court. The parties filed cross motions for summary judgment, and the court granted Orlando's motion. On appeal, the Eleventh Circuit reviewed Joel's claims and ultimately affirmed.
The Eleventh Circuit first considered Joel's equal protection claim and concluded the rational basis test applied because "[h]omeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental right." Id. at 1357. The Eleventh Circuit concluded that the Orlando ordinance survived rational basis scrutiny because the Orlando government could have been pursuing the legitimate interests of "aesthetics, sanitation, public health, and safety" and that a rational basis existed for believing that prohibiting sleeping out-of-doors on public property would further those legitimate interests. Id.
The Eleventh Circuit then turned to Joel's vagueness challenge under the Due Process Clause of the Fourteenth Amendment. The Eleventh Circuit held that Joel's facial vagueness challenge failed "because his conduct was clearly within the scope of the ordinance's prohibition against sleeping out-of-doors on public property." Id. at 1359. As to the as-applied vagueness challenge, the Eleventh Circuit held that the ordinance was "sufficiently specific that a person of ordinary intelligence could reasonably understand the conduct that is prohibited" and that it did not "encourage arbitrary and discriminatory enforcement." Id. at 1360.
The Eleventh Circuit also briefly discussed Joel's substantive due process argument that the ordinance outlawed sleeping for the homeless. Id. at 1359 n.3. The Eleventh Circuit held that the ordinance did not outlaw sleeping per se because it "at most outlaws sleeping in public when there are alternative places to sleep." Id.
Finally, the Eleventh Circuit turned to Joel's argument that the ordinance violated the Eighth Amendment's prohibition against cruel and unusual punishment since, under the handbook guidelines, "a person's homeless status, combined with sleeping, constitutes a criminal offense." Id. at 1361. The Eleventh Circuit rejected this argument, again relying on record evidence that the ordinance only applied when there were alternative places to sleep—like a shelter. Id. at 1362. Because the ordinance only applied when there were other places to sleep, the Eleventh Circuit distinguished Joel's claim from other cases in which courts concluded the Eighth Amendment was violated.
B. Application of Joel to This Case
While the City relies on Joel to argue that Plaintiffs' claims are barred, the Court concludes Joel is inapplicable—at least at this stage. The Eleventh Circuit noted several times in Joel that the Orlando ordinance did not apply unless there were alternative places for the homeless residents to sleep. Here, though, Plaintiffs allege that they were arrested for violating the ordinance when there were no alternative places to sleep, either because it was during the day when shelters were closed or because the shelters were at capacity. This distinction matters.
As Plaintiffs argue, if the open lodging ordinance were enforced when there were no alternatives, then it could implicate fundamental rights. The Eleventh Circuit's analysis in Joel is dependent on the Orlando ordinance not affecting a fundamental right because, as the Joel court put it, the Orlando ordinance did not outlaw sleeping per se for homeless individuals. Accepting the allegations in the Complaint as true, as the Court must at this stage, the Court cannot conclude that the City's open lodging ordinance at issue here does not outlaw sleeping per se .
Because the issue is not yet ripe, the Court makes no decision as to what rights are implicated or whether they are fundamental, which would affect the level of scrutiny applied in both Plaintiffs' substantive due process and equal protection claims.
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Because the Court concludes Joel is distinguishable, the City's motion must be denied. The Complaint plausibly alleges that the open lodging ordinance is vague, and that it violates the substantive due process and equal protection provisions of the Constitution. Notwithstanding, the City may re-raise its arguments at the summary judgment stage when the Court can better consider the claims in light of the record evidence.
Accordingly, it is ORDERED AND ADJUDGED that the City of Ocala's Partial Motion to Dismiss Class Action Complaint (Doc. 5) is DENIED.
DONE and ORDERED in Tampa, Florida, this 13th day of November, 2019.