Judge also denies the city’s request to hold a separate trial on allegations regarding the city’s Panhandling Ordinance
A vice president of the American Civil Liberties Union (ACLU) Foundation of Florida says a federal judge’s refusal to strike portions of a lawsuit the organization filed against the City of Sarasota last fall on behalf of homeless persons “demonstrates the merits of the complaint.”
Michael Barfield, a paralegal who works with Sarasota attorney Andrea Flynn Mogensen, told The Sarasota News Leader this week, “We do think that the lawsuit raises substantial constitutional issues, and the court indicated it agrees.”
At the heart of the complaint the ACLU filed in late September 2015 is that the city is “criminalizing homelessness,” Barfield pointed out. Moreover, the ACLU points to documents the city has filed with the U.S. Department of Housing and Urban Development (HUD), saying it would build a shelter for homeless individuals and it has not done so. “Empty promises” is how Barfield characterizes the situation, with the City Commission having refused to collaborate with the Sarasota County Commission on constructing a come-as-you-are shelter, as recommended by Robert Marbut, a homelessness issues expert the two local governments hired in 2013.
On the city side of the issue, City Attorney Robert Fournier told the News Leader on June 28 that U.S. District Court Judge Elizabeth Kovachevich’s decision to let the case move forward is “something that’s not altogether surprising.”
Even if she had granted the City’s Motion to Strike, he said, he would have expected her to give the plaintiffs an opportunity to amend the complaint.
The ACLU lawsuit, filed on behalf of six homeless individuals, says that enforcement of a city ordinance prohibiting outdoor lodging “when there is no publicly available shelter violates the Eighth Amendment prohibition on cruel and unusual punishment.” All six of the plaintiffs are described in the complaint as lacking “a fixed, regular, and adequate nighttime residence” as well as a permanent residence.
The ordinance the suit cites is Section 34-41 of the City Code, which makes it illegal to lodge out of doors on public or private property without the permission of the property owner. The ordinance includes in that prohibition “the laying down of bedding, such as a blanket or sleeping bag or similar material for the purpose of sleeping.”
The primary factor in the case, Barfield told the News Leader, is “whether there was an available shelter” at the time the plaintiffs were cited for lodging out of doors.
In an interview with the News Leader last fall, Barfield said he and Mogensen have data to support the plaintiffs’ claims that the Salvation Army in Sarasota did not have sufficient space for homeless people seeking shelter on the nights in question, going back to January 2013. Through the end of September 2015, he added, on 235 of approximately 280 nights, the Salvation Army’s facility was “well beyond maximum legal capacity.”
The lawsuit says, “Under the terms of a Conditional Use Permit issued by the City, the Salvation Army is not permitted by zoning to have more than 262 beds.” The complaint adds, “Under current zoning regulations governing mass shelters, the Salvation Army is required to have a minimum of 35 square feet of space for each of the 262 beds at the facility,” which is on 10th Street, just north of downtown Sarasota.
The city’s Motion to Strike references the lawsuit’s discussion “of HUD’s involvement with local municipalities regarding homelessness,” including the five-year Consolidated Plan the city and Sarasota County collaborate on to file with HUD, as the two local governments share some federal grant funds for housing initiatives. The motion also points to the plaintiffs’ use of exhibits from the plan Robert Marbut proposed in November 2013 to address homelessness issues in the community.
Rule 12 (f) of the Federal Rules of Civil Procedure allow a court to strike from a pleading “any redundant, immaterial, impertinent or scandalous matter,” the city’s motion says. “[T]he Court ‘must treat all pleaded facts as admitted and cannot consider matters beyond the pleadings,’” the motion continues, citing judicial precedent established in a 1995 case in the U.S. District Court for the Middle District of Florida.
Referencing specific allegations in the ACLU complaint, the city’s motion says their only purpose “is to obfuscate the material issues of the matter and cause unnecessary effort by [the city] and the Court in addressing the substantive allegations” of the lawsuit.
In her order, dated June 21 in the U.S. District Court for the Middle District of Florida, in Tampa, Kovachevich wrote that the information the city sought to strike from the complaint “goes to the heart of Plaintiffs’ claims. Striking portions of a pleading is a drastic measure and the Court declines to exercise its discretion in this matter.”
Motion to Sever denied as well
Regarding another portion of the city’s November 2015 filing, Fournier told the News Leader, “I was maybe more surprised that the court didn’t grant the Motion to Sever.”
He was referring to the city’s request that Kovachevich order a separate trial for the portion of the ACLU lawsuit challenging the city’s Panhandling Ordinance. Earlier this year — incorporating recommendations from Barfield — the City Commission approved a revised Panhandling Ordinance that Fournier had prepared.
“They are two completely different cases that are joined,” Fournier added of the ACLU complaint.
Barfield also was pleased with the judge’s action on that city motion. “We have believed that [the Panhandling Ordinance] goes hand in hand with the city’s Lodging Ordinance,” he said.
In her order, Kovachevich wrote that in considering a motion to sever, “a court will look at (1) whether the claims arise out of the same transaction or occurrence, (2) whether the claims present a common question of law or fact, (3) whether severance would promote judicial economy, (4) the relative prejudice to each side in severing the claims, (5) protecting principles of fundamental fairness, and (6) whether different witnesses and/or evidence is required for each of Plaintiffs’ claims.”
She pointed out that while the ACLU’s challenge of the constitutionality of the city’s Panhandling Ordinance is distinct from the Lodging Ordinance, “both claims arise out of the City’s interaction and actions toward the homeless population present in the City.”
The first two counts of the ACLU lawsuit — focusing on the Lodging Ordinance — and the third count regarding the Panhandling Ordinance “share similar parties and Plaintiffs will present evidence related to all three counts to support their claim,” Kovachevich wrote. “Finally, judicial economy and fundamental fairness are promoted by maintaining consolidation of Plaintiffs’ claims as it would eliminate unnecessary case management and duplications in a second case that shares similar parties, facts, and evidence.” Therefore, she continued, she was denying the Motion to Sever.
Barfield pointed out during the June 29 interview with the News Leader that downtown Sarasota businesses are allowed to advertise their wares with signs, “but someone asking for a handout is [committing] a crime, and we think that is wrong. … You cannot selectively ban conduct,” he added. “That’s what the First Amendment is all about.”
Partial dismissal of action against police chief
Kovachevich did grant in part the city’s Motion to Dismiss the ACLU action against Sarasota Police Chief Bernadette DiPino.
The judge noted in her order that Count II of the ACLU complaint was brought against DiPino “in her official capacity,” but the plaintiffs sought more than injunctive relief. An 11th Amendment “exception exists for state officials as long as plaintiffs seek only prospective injunctive relief,” Kovachevich wrote, citing an 11th Circuit Court of Appeals case.
Because the plaintiffs in this case sought other remedies — including compensatory damages and attorneys’ fees and costs — she ordered the dismissal of all counts against DiPino in DiPino’s official capacity.
Proceeding with trial preparation
Although mediation was conducted in the case in May, records filed with the U.S. District Court for the Middle District of Florida show no indication of a settlement.
In early December 2015, Kovachevich issued an order calling for a jury trial during the first week of July 2017. A pretrial conference also was scheduled for June 6, 2017 before Magistrate Judge Julie S. Sneed in Tampa.