Opinion
CIVIL ACTION NO. 1:18-CV-5742-ODE
08-26-2020
6420 ROSWELL RD., INC. d/b/a Flashers, Plaintiff, v. CITY OF SANDY SPRINGS, GEORGIA and Douglas A. Brown, in his individual capacity, Defendants.
Cary Stephen Wiggins, Wiggins Law Group, Atlanta, GA, for Plaintiff. Dana Kristin Maine, Daniel William Lee, William J. Linkous, III, Freeman Mathis & Gary, LP, Atlanta, GA, for Defendants.
Cary Stephen Wiggins, Wiggins Law Group, Atlanta, GA, for Plaintiff.
Dana Kristin Maine, Daniel William Lee, William J. Linkous, III, Freeman Mathis & Gary, LP, Atlanta, GA, for Defendants.
ORDER
ORINDA D. EVANS, UNITED STATES DISTRICT JUDGE Plaintiff's 42 U.S.C. § 1983 claims and its negligence claim are before the Court on Defendants’ Motion to File Excess Pages [Doc. 30], Defendants’ Motion to Dismiss For Failure to State a Claim [Doc. 31], and Plaintiff's Motion to File Excess Pages [Doc. 35]. For the reasons provided below, the Court GRANTS Defendants’ Motion to File Excess Pages and Plaintiff's Motion to File Excess Pages. The Court also GRANTS Defendants’ Motion to Dismiss, finding that Defendant Brown is entitled to qualified immunity and that Plaintiff's Second Amended Complaint fails to state a claim for which relief can be granted. Because there are no longer federal claims before the Court, the Court does not retain jurisdiction over Plaintiff's state-law negligence claim through supplemental jurisdiction.
I. INTRODUCTION
A. Factual Background
The factual allegations from Plaintiff's Second Amended Complaint For Damages [Doc. 29] are as follows. Plaintiff 6420 Roswell Road, Inc. ("Plaintiff"), operating under the name "Flashers," is an establishment that offered nude dance entertainment at 6420 Roswell Road, Atlanta, Georgia 30339 [Doc. 29 at 2 ¶ 2]. Defendant City of Sandy Springs, Georgia ("Sandy Springs") is a political subdivision of the state of Georgia [Doc. 29 at 2 ¶ 3] and Defendant Douglas A. Brown ("Brown") is a Division Commander of the Fire Marshal's Office for the City of Sandy Springs Fire Department [Doc. 29 at 2 ¶ 4] (collectively, "Defendants"). Keith Sanders ("Sanders")--not named as a party in this lawsuit--is the city's police chief and fire chief [Doc. 25-1 at 9].
Plaintiff opened in 1990 and featured "live-nude, exotic dance performances in the City of Sandy Springs" [Doc. 29 at 4 ¶¶ 10, 13]. On December 1, 2005, Defendant Sandy Springs was incorporated as a municipal corporation and Plaintiff became subject to the city's jurisdiction [Doc. 29 at 5 ¶ 13]. Defendant Sandy Springs allegedly objected to the message communicated by Plaintiff as well as by other gentlemen's clubs and sexually-oriented businesses operating within the city [Doc. 29 at 5 ¶ 14].
Sandy Springs regulates Fire Prevention and Protection under Chapter 22 of its Code of Ordinances [Doc. 29 at 5-6 ¶ 16]. The city has adopted the International Fire Code ("IFC"), "for the purpose of establishing rules and regulations for the alteration and repair of existing buildings and other similar work in the city" [Doc. 29 at 5 ¶ 16]. See also SANDY SPRINGS , GA. , CODE § 22-26 (a) (1) (2008). Under the IFC, fire code officials may order the immediate evacuation of "any occupied building deemed unsafe where such building has hazardous conditions that present imminent danger to building occupants. Persons so notified shall immediately leave the structure or premises and shall not enter or re-enter until authorized to do so by the fire code official" [Doc. 29 at 7-8 ¶ 22]. See also INT'L FIRE CODE § 111.2 (2018). When a fire official deems a premises unsafe, the "owner ... shall abate or cause to be abated or corrected such unsafe condition either by repair, rehabilitation, demolition or other approved corrective action" [Doc. 29 at 8 ¶ 23]. See also INT'L FIRE CODE § 111.4 (2018).
The IFC also establishes a board of appeals "to hear and decide appeals of orders, decisions or determinations made by the fire code official relative to the application and interpretation" of the code [Doc. 29 at 8 ¶ 24]. See also INT'L FIRE CODE § 109.1 (2018) (emphasis omitted). Appeals "shall be based on a claim that the intent of [the IFC] or the rules legally adopted [t]hereunder have been incorrectly interpreted, the provisions of th[e] code do not fully apply, or an equivalent method of protection or safety is proposed." INT'L FIRE CODE § 109.2 (2018). "The board of appeals shall consist of members who are qualified by experience and training to pass on matters pertaining to hazards of fire, explosions, hazardous conditions or fire protections systems, and are not employees of the jurisdiction." INT'L FIRE CODE § 109.3 (2018) (emphasis omitted). Pursuant to the IFC, Defendant Sandy Springs created a board of appeals which--among other functions--"hears appeals from any person aggrieved by an action of the fire chief or any other city official or employee of the city fire department" [Doc. 29 at 8-9 ¶ 25]. See SANDY SPRINGS , GA. , CODE § 22-27 (a). Plaintiff contends that "[u]pon information and belief, the members of [Sandy Springs’] Board of Appeals do not meet the qualifications set out by the IFC" [Doc. 29 at 9 ¶ 27]. Specifically, Plaintiff avers that the board only meets once a month and has no rules guaranteeing appeals will be heard or requiring that a decision be made within any specified period of time [Doc. 29 at 18 ¶ 56].
In the fall of 2016, Sandy Springs allegedly began planning to "raid" all three establishments under its jurisdiction that offered live nude dance entertainment [Doc. 29 at 9 ¶ 29] (quotation marks added). On December 14, 2016, representatives of the Sandy Spring Fire Marshal's Office--along with other city employees--participated in a raid at Plaintiff's establishment without a search warrant [Doc. 29 at 10-11 ¶¶ 31, 34]. At Defendant Brown's direction, fire safety officials looked for "any conceivable violations" of the IFC [Doc. 29 at 10 ¶ 33] (quotation marks added).
On December 19, 2016, five days after the Fire Marshal's Office performed the inspection, Defendant Brown ordered Plaintiff to cease operations and provided Plaintiff with a Field Inspection Report (the "Report") [see Doc. 34-1] detailing alleged IFC violations [Doc. 29 at 11 ¶ 35]. In the Report, Defendant Brown identified alleged violations, marking with asterisks those which he believed needed to be corrected immediately [Doc. 29 at 11 ¶ 36]. The items which Defendant Brown marked with asterisks are as follows:
The Report may be considered on Defendants’ Motion to Dismiss because it is referenced in Plaintiff's pleadings [Doc. 29 at 11-12 ¶¶ 35-39], it is central to Plaintiff's claims, its contents are not in dispute, and it is attached to Defendants’ motion. See Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007). Plaintiff does not object to Defendants’ use of the Report.
• IFC-1008.1.9.5 Unlatching of doors: Doors with slide bolt style or any other lock other than panic hardware require signage that reads "THIS DOOR TO REMAIN UNLOCKED WHEN BUILDING IS OCCUPIED." Signs must be constructed of a sturdy material and weather resistant [Doc. 31-2 at 3].
• LSC-7.2.1.4.5.1 Door Leaf Operating Force: Rear door from kitchen area too hard to operate [Doc. 31-2 at 3].
• LSC-7.10.1.2.1 Marking of Means of Egress: North exit doors require signage that reads "FIRE EXIT - DO NOT BLOCK." Signs must be
constructed of a sturdy material and weather resistant [Doc. 31-2 at 3].
• IFC-605.1 Abatement of Electrical Hazards: Throughout the premises there are numerous violations of NEC standards: excessive use of extension cords being used in lieu of permanent wiring; excessive use of multi-plug strips in lieu of adequate electrical outlets; multiple missing electrical switch plate and outlet covers; lack of GFI receptacles adjacent to water sources; main electrical panel blocked by a ladder and building materials; exterior electrical panel boxes have no covers on them - exposing "live" electrical contacts to human contact (though in a semi-enclosed area); wiring to some light fixtures is not per code; light fixtures with open sockets were not covered and some did not have bulbs in them. There are also multiple locations where water leaks are proximal to electrical hazards increasing the chances of electrical shock [Doc. 31-2 at 4].
• IFC-1030.3 Unobstructed egress: There are multiple locations throughout the premises with damaged flooring material that could cause persons to trip if trying to escape a fire [Doc. 31-2 at 5].
• LSC-10.3.5 Flammable decorations to be removed: There is a Christmas tree in foyer of the main entrance / exit [Doc. 41-2 at 5-6].
The Report then stated that "due to the seriousness of th[e] violations," Plaintiff "is declared unsafe and is ordered to be closed to [sic] business" [Doc. 29 at 11 ¶ 36]. The Report concluded that Plaintiff would be "cleared by the Sandy Springs Fire Marshal's Office to re-open" upon correcting "the noted fire and life safety code violations and a follow-up inspection by local authorities to ensure compliance" [Doc. 29 at 11 ¶ 36].
After receiving the Report, Plaintiff hired an electrician to review and correct the items marked with asterisks [Doc. 29 at 12 ¶ 37]. Defendant Brown returned to Plaintiff's establishment on December 23, 2016 to ensure compliance with the Report's closure order [Doc. 29 at 12 ¶ 38]. After a second inspection, Brown informed Plaintiff that although it had repaired all of the Report's items flagged with an asterisk, the electrician had done the repairs without a permit and thus the closure order would continue indefinitely [Doc. 29 at 12 at ¶¶ 38, 39]. Brown also informed Plaintiff he had discovered new violations, and that he would send Plaintiff a written list of the new violations [Doc. 29 at 12 ¶ 39]. According to Plaintiff, neither defendant produced the complete list of violations as promised by Defendant Brown [Doc. 29 at 13 ¶ 45].
Plaintiff hired a second electrician after Brown's December 23, 2016 inspection who confirmed that all of the repairs made by the first electrician were sufficient and that they did not require a permit [Doc. 29 at 12 ¶ 40]. On December 27, 2016, Plaintiff's electrician applied for permits for past and future repairs, however Sandy Springs denied the permits without explanation [Doc. 29 at 13 ¶ 43]. Plaintiff sued Sandy Springs and other individuals on December 29, 2016, seeking a temporary restraining order requiring those defendants to withdraw the shutdown order prohibiting Plaintiff from operating its business [Doc. 29 at 14 ¶ 46]. On December 30, 2016, the Fulton County Superior Court granted Plaintiff's motion for a Temporary Restraining Order and ordered Sandy Springs to lift its shutdown order, noting "that all items marked with asterisks ha[d] been completed and the items that were not marked with asterisks ha[d] also been inspected and [were] determined by the electrical inspector to be satisfactory and not in violation of any code" [Doc. 29 at 14 at ¶ 46].
Plaintiff's complaint does not specify which electrician applied for permits.
Plaintiff contends that when Sandy Springs has inspected its premises in the past, it has never found a single condition or item dangerous [Doc. 29 at 15 ¶ 49]. Plaintiff also contends that when the city inspects a business and determines there are items needing repair, it normally provides the business with notice of the items and a reasonable time within which the business has to correct them while remaining open [Doc. 29 at 15 ¶ 50]. On September 6, 2018, Plaintiff closed its doors after its challenges to the city's adult entertainment ordinances failed [Doc. 29 at 5 ¶ 15].
B. Procedural History
Plaintiff filed its Original Complaint on December 14, 2018 [Doc. 1], in which it brought three constitutional claims under 42 U.S.C. § 1983 against both defendants and a negligence claim under state law against Defendant Sandy Springs. Plaintiff's § 1983 claims allege violations of the Fourteenth Amendment Procedural Due Process Clause, the First Amendment Free Speech Clause, and the Fourth Amendment [Doc. 1 at 15-19 ¶¶ 54-61]. Plaintiff's negligence claim against Defendant Sandy Springs alleges that Sandy Springs is liable under the doctrine of respondeat superior for Defendant Brown's failure to competently investigate Plaintiff's premises [Doc. 1 at 19-20 ¶¶ 63-68].
On April 3, 2019, Defendants filed their first Motion to Dismiss [Doc. 9], arguing that Plaintiff pleaded insufficient facts to hold Defendant Sandy Springs liable under § 1983 and that qualified immunity bars Plaintiff's § 1983 claims against Defendant Brown. Accordingly, Defendants argued the Court should decline to exercise supplemental jurisdiction over Plaintiff's negligence claim in the absence of any remaining federal-law claims. In response to Defendants’ motion to dismiss, Plaintiff filed its First Amended Complaint For Damages [Doc. 11] as a matter of right in accordance with Federal Rule of Civil Procedure 15(a) (1) (B) on April 17, 2019.
Defendants filed their Motion to Dismiss First Amended Complaint for Damages [Doc. 19] on May 8, 2019, in which they presented the same arguments from their first motion to dismiss. In an attempt to address the deficiencies identified by Defendants, Plaintiff filed a Motion for Leave to Amend Complaint [Doc. 25] on July 22, 2019. The Court granted Plaintiff's motion to amend on December 18, 2019 [Doc. 28]. Plaintiff's Second Amended Complaint was filed that same day [Doc. 29]. Defendants filed a Motion for Leave to File Excess Pages [Doc. 30] on January 2, 2020. That same day, Defendants filed a Motion to Dismiss Second Amended Complaint [Doc. 31]. Plaintiff responded in opposition on January 30, 2020 [Doc. 34] and filed a Motion for Leave to File Excess Pages [Doc. 35] that same day.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b) (6) permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." Id. In ruling on a pending motion to dismiss, all of the factual allegations in a plaintiff's complaint must be accepted as true and construed in the light most favorable to plaintiff. Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1037 (11th Cir. 2008) (citation omitted). While the Court must accept as true all of the factual allegations in the complaint, the Court is not required to accept legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations and internal quotation marks omitted).
[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Id. (citations and internal quotation marks omitted). The standard "calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of the claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). It is not necessary for a complaint to set out all the facts in detail, but a plaintiff has to at least allege "enough factual matter (taken as true) to suggest" the existence of the required elements of the claim. Id.; see also Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007). The "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp., 550 U.S. at 555, 127 S.Ct. 1955.
In civil rights actions, "a complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory." Smith v. Reg'l Dir. of Fla. Dept. of Corr., 368 F. App'x 9, 12 (11th Cir. 2010) (citing Fullman v. Graddick, 739 F.2d 553, 556 (11th Cir. 1984) ); see also Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) ("[C]onclusory allegations [and] unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal."). Therefore, to withstand a motion to dismiss, Plaintiff's proposed second amended complaint must contain well-pleaded factual allegations which plausibly give rise to an entitlement to relief. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010).
III. CLAIMS PRESENTED
Plaintiff makes three constitutional claims, all of which are against both Defendants. Plaintiff also makes a state-law negligence claim against Defendant Sandy Springs. Count I of Plaintiff's complaint alleges that Defendants denied Plaintiff due process by failing to provide a pre-deprivation hearing before closing Plaintiff's premises. Count II alleges that the closure violated Plaintiff's First Amendment freedom of speech. Count III alleges that Defendants’ warrantless inspection and subsequent closure of Plaintiff's premises constituted an unreasonable search and seizure under the Fourth Amendment. Lastly, Count IV is a negligence claim, alleging that Defendant Sandy Springs is liable under the doctrine of respondeat superior for Defendant Brown's failure to competently investigate Plaintiff's premises.
IV. DISCUSSION
Defendants first argue that the claims against Defendant Brown are barred by qualified immunity. Qualified immunity exists "to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation," Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), and "to ensure that before they are subjected to suit, offic[ial]s are on notice their conduct is unlawful." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citation omitted). Qualified immunity "protects from civil liability government officials who perform discretionary functions if the conduct of the officials does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ); see also Lee, 284 F.3d at 1193-94.
To be entitled to qualified immunity, an official "must first prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ " Lee, 284 F.3d at 1194 (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) ). Here, it is undisputed that Brown's actions were within his discretionary authority [Doc. 19-1 at 17]. Therefore, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate" by using the two-prong test established by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Id. The first inquiry asks whether the facts alleged--taken in the light most favorable to the party asserting the injury--show the officer's conduct violated a constitutional right. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If no constitutional right would have been violated were the allegations contained in the complaint established, the inquiry ends there. Id. However, "[i]f, and only if, the court finds a violation of a constitutional right," the second inquiry asks whether the right was clearly established. Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151 ).
The Supreme Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) clarified that although the sequence of the two-prong test in Saucier is often appropriate, it is not mandatory. Therefore, courts may start with the second inquiry should they desire. Id.
For a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It is not to say that the very action in question must have previously been held unlawful, "but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id.; see also Bennett v. Hendrix, 423 F.3d 1247, 1255 (11th Cir. 2005).
A. The Fourteenth Amendment Due Process Claim
The Due Process Clause of the Fourteenth Amendment provides that the State shall not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, Sec. I. The United States Supreme Court has interpreted this clause to contain two different kinds of constitutional protection: procedural due process and substantive due process. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). A violation under either of these protections may form the basis for a lawsuit under § 1983. Although Plaintiff does not specify in its complaint whether it is asserting a claim under substantive or procedural due process, Plaintiff's response brief focuses solely on its procedural due process rights [see Doc. 34 at 25 ("The City violated Flashers's due process rights by failing to provide either (1) a pre-deprivation hearing, or (2) an opportunity for a meaningful hearing following the deprivation.")]. When a claimant only complains that a state lacks constitutionally adequate pre-deprivation procedures or asserts that its particular hearing was not fair and impartial, it raises only procedural due process concerns. McKinney v. Pate, 20 F.3d 1550, 1559 (11th Cir. 1994). The Court therefore interprets Plaintiff's allegations as bringing a claim for a procedural due process violation. To state a claim under § 1983 for denial of procedural due process, a claimant must allege "(1) deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process." Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994) ). "[T]he deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law ." Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) ; see also Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property."). A procedural due process violation is therefore not complete "unless and until the State fails to provide due process." Zinermon, 494 U.S. at 126, 110 S.Ct. 975. "In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise." McKinney, 20 F.3d at 1557.
The Court notes that even if Plaintiff did bring a claim for substantive due process, that claim would fail. Plaintiff has not identified any fundamental right that Defendants have allegedly deprived. As stated by the United States Court of Appeals for the Eleventh Circuit:
It is well established that the substantive component of the Due Process Clause protects those rights that are "fundamental," that is, rights that are implicit in the concept of ordered liberty. Fundamental rights are those rights created by the Constitution. Property interests, of course, are not created by the Constitution, but rather by existing rules or understandings that stem from an independent source such as state law. As a result, there is generally no substantive due process protection for state-created property rights.
Kentner v. City of Sanibel, 750 F.3d 1274, 1279 (11th Cir. 2014) (internal quotation marks and citations omitted). Although the Eleventh Circuit creates an exception to this general rule "[w]here a person's state-created rights are infringed by a ‘legislative act,’ " Plaintiff has alleged no such legislative act in this case. Id.
Defendants do not challenge the first or second elements of Plaintiff's procedural due process claim. Therefore, the question remaining before the Court is whether Plaintiff has sufficiently alleged the third element: constitutionally inadequate process. To determine whether the state's process was constitutionally inadequate, "it is necessary to ask what process the State provided, and whether it was constitutionally adequate." Zinermon, 494 U.S. at 126, 110 S.Ct. 975. In doing so, the Court considers several factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
In applying this test, the Supreme Court "usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or process." Zinermon, 494 U.S. at 127, 110 S.Ct. 975 ; see, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (requiring hearing before cutting off utility service); Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (requiring informal hearing before students’ suspension from public school); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ("[T]he root requirement of the Due Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.").
In some cases, however, a post-deprivation remedy satisfies due process. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (noting "the necessity of quick action by the State or the impracticality of providing any predeprivation process" may justify the use of a post-deprivation process). Among such circumstances are "extraordinary situations" in which a need for quick action exists. Fuentes v. Shevin, 407 U.S. 67, 81-82, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ; see also Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1378 (11th Cir. 2019) (finding post-deprivation hearing sufficient when city closed nude dance club where law enforcement had reason to believe that the club had allowed a thirteen-year-old girl to perform under threat and act of physical abuse); Grayden v. Rhodes, 345 F.3d 1225, 1237 (11th Cir. 2003) (finding post-deprivation hearing sufficient when tenants were evicted from unsafe building citing the importance of protecting the citizens from immediate risk of serious bodily harm). The Supreme Court has recognized that "extraordinary situations," also referred to as "exigent circumstances," are marked by three characteristics:
(1) the seizure of property is necessary to secure an important governmental or general public interest; (2) there is a special need for prompt action; and (3) the person initiating the seizure is a government official responsible for determining, under the standards of a narrowly drawn statute, that the seizure was necessary and justified in the particular instance.
Id. at 1236-37 (citing Fuentes, 407 U.S. at 91, 92 S.Ct. 1983 ).
Defendants argue that its actions in closing Plaintiff met all three of these criteria. According to Defendants, Plaintiff's fire code violations raised immediate concern for the safety of Plaintiff's patrons and therefore a pre-deprivation hearing was not only impracticable, but also unsafe.
In response, Plaintiff argues that Defendants used its building and fire safety code as pretext to close Plaintiff's operations. In support of its claim of pretext, Plaintiff alleges:
• The violations were not sufficiently dangerous to warrant immediate closure [see Doc. 29 at 19-20 ¶ 58(c) ("The defendants knew that there were no serious code violations at [Plaintiff], and they knew that [Plaintiff] did not pose an immediate threat to the health, safety or welfare of the community.")].
• Defendants have not closed "other commercial establishments for the same type of alleged violations. Instead they employ the ‘normal’ code enforcement process, which provides for notice and a due process hearing before any final administrative action takes place" [Doc. 29 at 20 ¶ 58(f)].
• Defendant Sandy Springs has inspected Plaintiff on many occasions over the years, however it "has never found a single condition or item that it considered dangerous to human life" [Doc. 29 at 15 ¶ 49].
• Defendants waited five days after their review of Plaintiff's establishment to issue its closure order [Doc. 29 at 11 ¶ 35].
The Court agrees with Plaintiff that Defendants’ delay in ordering Plaintiff's closure can be read to suggest that Plaintiff's premises was not sufficiently dangerous to be considered an "exigent circumstance." However, Defendants have presented a bona fide, potentially serious violation. Defendant Brown's report reads:
Throughout the premises there are numerous violations of NEC standards: excessive use of extension cords being used in lieu of permanent wiring; excessive use of multi-plug strips in lieu of adequate electrical outlets; multiple missing electrical switch plate and outlet covers; lack of GFI receptacles adjacent to water sources; main electrical panel blocked by a ladder and building materials; exterior electrical panel boxes have no covers on them - exposing "live" electrical contacts to human contact (though in a semi-enclosed area); wiring to some light fixtures is not per code; light fixtures with open sockets were not covered and some did not have bulbs in them. There are also multiple locations where water leaks are proximal to electrical hazards increasing the chances of electrical shock [Doc. 31-2 at 4].
The Court finds this violation sufficiently dangerous to necessitate immediate closure. With respect to Plaintiff's pretext argument, there is nothing before the Court to suggest that such a five-day delay in issuing a fire report is unusual or uncommon.
Moreover, "a procedural due process violation is not complete ‘unless and until the State fails to provide due process.’ " McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994). Plaintiff argues that because the city's board of appeals do not meet the qualifications set out by the IFC, Defendants have failed to provide adequate due process. Specifically, Plaintiff contends that the board of appeals does not meet with sufficient frequency to give meaning to the appeals process.
However, "the process a state provides is not only that employed by the board, agency, or other governmental entity whose action is in question, but also includes the remedial process state courts would provide if asked." Horton v. Bd. of Cty. Comm'rs of Flagler Cty., 202 F.3d 1297, 1300 (11th Cir. 2000). Therefore, in Freeman v. Town of Eatonville, Fla., 225 F. App'x 775, 780 (11th Cir. 2006), the Eleventh Circuit rejected a club owner's claim that the city violated its procedural due process rights when it closed the club noting that the plaintiffs "could have pursued remedies in state court for lost profits or damages suffered by the club's closure." Freeman, 225 F. App'x at 780 ; see also Horton, 202 F.3d at 1300. Here, like in Freeman, Plaintiff has not shown that it could not have pursued remedies in Georgia state court for lost profits. The Court therefore finds that Defendants did not violate Plaintiff's procedural due process rights. Because the Court finds there was no due process violation, Defendant Sandy Springs likewise cannot be found liable. See City of L.A. v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) ; Knight through Kerr v. Miami-Dade Cty., 856 F.3d 795, 821 (11th Cir. 2017) ("There can be no policy-based liability or supervisory liability when there is no underlying constitutional violation."); Vineyard v. Cty. of Murray, Ga., 990 F.2d 1207, 1211 (11th Cir. 1993) ("Only when it is clear that a violation of specific rights has occurred can the question of § 1983 municipal liability for the injury arise.").
Even if the state's remedies were insufficient such that Plaintiff's closure amounted to a violation of its procedural due process rights, Plaintiff has not established that the unconstitutionality of Defendants’ conduct is "clearly established." For a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It is not to say that the very action in question must have previously been held unlawful, "but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id.
Qualified, or "good faith" immunity used to have both an "objective" and a "subjective" aspect. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (finding the appropriate test was whether the officer "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights"). The objective element involved a presumptive knowledge of and respect for "basic, unquestioned constitutional rights," whereas the subjective component referred to "permissible intentions." Id. However, in Harlow v. Fitzgerald, the Supreme Court eliminated the subjective component, finding that it frequently proved incompatible with the Court's admonition that insubstantial claims should not proceed to trial. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Because an official's subjective good faith became considered a question of fact, lower courts were requiring the issue to be resolved by a jury. Id. at 816, 102 S.Ct. 2727.
The Supreme Court therefore concluded that the proper formulation of the standard for judging the qualified immunity defense is as follows: "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. 2727. However, with respect to allegations of malicious intent to cause a constitutional deprivation, "bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery." Id. at 817-18, 102 S.Ct. 2727 ; Crawford-El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ("Under [ Harlow ], a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense.").
Plaintiff relies on Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir. 1982) to argue that the unconstitutionality of Defendants’ conduct was clearly established. See Espanola Way, 690 F.2d at 830. There, the plaintiffs argued that city commissioners had conspired together to conduct frequent inspections of hotels housing Cuban refugees in an attempt to drive the hotels out of business. Id. at 828. The Commissioners allegedly issued 344 building code violations as well as numerous fire code violations. Id. The Eleventh Circuit determined that qualified immunity did not apply because, among other reasons, "a conscious attempt to deprive property owners of property without due process of law clearly contravenes established law." Id. at 830.
However, in Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir. 1993), the Eleventh Circuit qualified its decision in Espanola. In Post, the city of Fort Lauderdale's code team visited a restaurant on at least four occasions, and each time gave the restaurant a notice of violation for exceeding its maximum occupancy cap of twenty-two. Post, 7 F.3d at 1555. The restaurant's owner and manager sued city officials under § 1983 based on alleged harassment that resulted from the owner's arrest and prosecution for violation the building's maximum restaurant capacity code. Id. The plaintiffs argued, among other things, that the defendants violated their procedural due process rights. Id. at 1560. In opposing the defendants’ motion for summary judgment, the plaintiffs offered evidence that the Assistant Director of the Building and Zoning Department was overheard discussing plans to "hit" the restaurant. Id. at 1556. The Assistant Director also allegedly said, referring to the plaintiffs, "we are going to teach those fucking ass holes [sic] a lesson." Id.
The defendants argued they were entitled to summary judgment on the procedural due process claim based on qualified immunity. The Eleventh Circuit agreed. First, the court noted that the district court proceedings in Espanola took place before Harlow was decided. Post, 7 F.3d at 1560. Second, the court distinguished the facts in Post from the facts in Espanola. The court observed that in Espanola, the officials were not due summary judgment because "the task force issued over 300 plainly unwarranted building and fire code violations to one hotel." Id. However, the court found that the code team's acts in Post were not plainly unwarranted. Id. Rather, the "code team could have reasonably believed that the max cap notices were justified." Id. Even if the defendants deliberately used the code to "ruin Post"--as the plaintiffs contended—the court determined that there were no facts to show that the team's "objective conduct in inspecting for violations, issuing citations, or making arrests was plainly unjustified." Id. The court therefore concluded that "[i]ssuing an unreasonably high number of fully warranted citations might violate due process. But, where no bright-line rule determines how many citations are too many, [the court is] ‘extremely wary’ of denying qualified immunity unless the number of citations ‘falls well outside’ the range of lawful conduct." Id.
Here, Defendants’ report cited thirteen fire code violations, only six of which needed to be corrected immediately [see Doc. 31-2]. Of importance, Plaintiff has not disputed the veracity of the violations. Instead, Plaintiff argues that the code violations were not serious and did not pose an immediate threat to the health or safety of Plaintiff's patrons. Given the relatively low volume of citations and the fact that Plaintiff does not contest their validity, the Court finds that much like in Post, the citations at issue are not plainly unjustified. The Court therefore finds that Defendant Brown is entitled to qualified immunity for Plaintiff's Due Process claims.
B. First Amendment Claim
Plaintiff alleges the following grounds in connection with its First Amendment claim:
(1) Sandy Springs’ ordinances impose a prior restraint on speech in a system that does not require an immediate post-deprivation hearing and in which discretion was intentionally abused to deprive Plaintiff of its speech rights;
(2) The timing and conduct of the inspection was calculated to scare away dancers and patrons;
(3) Sandy Springs relied on the IFC and Life Safety Code as a pretext because Defendants knew there were no serious code violations;
(4) Plaintiff was subjected to Defendants’ whims;
(5) Sandy Springs employed its fire safety code against Plaintiff because it disagreed with Plaintiff's speech; and
(6) Defendants do not use closure orders against other commercial establishments for the same type of violations.
[Doc. 29 at 19-20 ¶ 58].
It is true that nude dancing is considered expressive conduct which is afforded some First Amendment protection. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) ("[N]ude dancing ... is expressive conduct within the outer perimeters of the First Amendment."). However, "[s]imply because the [fire codes] incidentally burdened [Plaintiff's] First Amendment activities does not mean that [the fire codes] [are] subject to First Amendment scrutiny, since ‘every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities.’ " Wright v. City of St. Petersburg, Fla., 833 F.3d 1291, 1296 (11th Cir. 2016) (citing Arcara v. Cloud Books, Inc., 478 U.S. 697, 706, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986) ).
In Arcara v. Cloud Books, Inc., the Supreme Court upheld a court order that closed an adult bookstore that was being used as a place of prostitution. Id. at 700, 106 S.Ct. 3172. The Court first recognized that it had applied First Amendment scrutiny to: (1) statutes regulating conduct which has the incidental effect of burdening speech; and (2) statutes which, although directed at activities with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities.
See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (applying first amendment scrutiny to ban on camping and sleeping in Lafayette Park and on the Mall in Washington D.C. in relationship to demonstrators who sought to sleep overnight in these locations to protest the plight of homeless people); United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (applying first amendment scrutiny to statute which imposed criminal sanctions on one who destroys a draft card).
See Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 582-83, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (striking down tax imposed on the sale of large quantities of newsprint and ink because the burden of the tax fell disproportionately on the shoulders of newspapers).
However, the Supreme Court found that Arcara involved neither situation. Id. at 706-07, 106 S.Ct. 3172. The Court observed that the sexual activity giving rise to the store's closure "manifest[ed] absolutely no element of protected expression." Id. at 705, 106 S.Ct. 3172. Rather, "[t]he legislation providing the closure sanction was directed at unlawful conduct having nothing to do with books or other expressive activity." Id. at 707, 106 S.Ct. 3172. The Court ultimately concluded that the First Amendment is not implicated by the enforcement of a such a regulation of general application. Id. Therefore, "[b]ookselling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises." Id.; see also Wright, 833 F.3d at 1298 (finding First Amendment scrutiny had no relevance to ordinance that prevented claimant from re-entering a park after claimant committed unlawful conduct in the park because the ordinance was directed at imposing sanctions on nonexpressive activity); Talk of the Town v. Dep't of Fin. & Bus. Servs. ex rel. City of Las Vegas, 343 F.3d 1063, 1069-70 (9th Cir. 2003) (finding municipal code that bars consumption of alcohol in establishments that lack valid liquor license in no way regulates conduct containing an element of protected expression because "[t]he requirement applies to all businesses, whether they be bookstores or bars"); O'Connor v. City & Cty. of Denver, 894 F.2d 1210, 1216-17 (10th Cir. 1990) (affirming revocation of movie theaters’ amusement licenses where theaters did not prevent indecent acts from being committed in violation of public decency laws, finding the enforcement of the criminal code and closure of the theaters did not implicate First Amendment protections under Arcara ).
Defendants argue that like the law in Arcara barring prostitution, the fire codes at issue are generally-applied regulations. Fire codes are public health regulations of general application which relate to the safety of physical premises. They apply in equal force to every business subject to the codes’ domain. Therefore, Defendants argue that Plaintiff's closure imposed pursuant to the city's fire code does not trigger First Amendment scrutiny.
In response, Plaintiff argues that the codes are written so broadly as to allow an inspector to use the code as a pretext to harass or shut down an unwanted adult business. See Arcara, 478 U.S. at 708, 106 S.Ct. 3172 (O'Connor, J. concurring) (noting "[i]f, however, a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review").
The Court agrees with Defendants that the Sandy Springs Fire Codes are laws of general applicability and therefore do not trigger First Amendment scrutiny. Even if they did, the fact still remains that Defendants have presented a bona fide, serious fire code violation. The Court therefore finds that Defendants’ conduct did not violate Plaintiff's First Amendment rights. Because the Court finds there was no First Amendment violation, Defendant Sandy Springs likewise cannot be found liable.
Even if Plaintiff could make out a First Amendment violation, Plaintiff has failed to establish that the alleged unconstitutionality of Defendants’ conduct is "clearly established." As with its procedural due process claim, Plaintiff relies on Defendants’ subjective motivation in an effort to rebut the defense of qualified immunity. To the extent Plaintiff asserts that Defendant Brown was improperly motivated by the content of Plaintiff's speech and business, Plaintiff's argument is unavailing. Because the fire code violations were not plainly unwarranted, the unconstitutionality of Defendants’ conduct was not "clearly established." Defendant Brown is therefore entitled to qualified immunity as to its First Amendment claim.
C. Fourth Amendment Claim
Plaintiff's last claim is that Defendants’ conduct violated its Fourth Amendment rights. Plaintiff first argues that Defendants’ search of its premises exceeded the scope allowed by the administrative search exception to the warrant clause of the Fourth Amendment and thus contends the search itself violated the Fourth Amendment. Plaintiff also contends that closing its premises was an unconstitutional "seizure" under the Fourth Amendment.
The Fourth Amendment proscribes all unreasonable search and seizures. Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Therefore, warrants are generally required to search someone's home or his person. However, "because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions." Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ; see also Mincey, 437 U.S. at 393-94, 98 S.Ct. 2408 (citing McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) and Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ) (noting warrants are generally required "unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment").
One such exigency necessitating a warrant "is the need to assist persons who are seriously injured or threatened with such injury." Brigham City, 547 U.S. at 403, 406, 126 S.Ct. 1943 (allowing warrantless entry where officers were responding to a noise complaint and heard an altercation and people yelling "stop, stop" and "get off me"). Defendants argue that like in Brigham, there was a need to protect Plaintiff's patrons and dancers from imminent injury due to the fire code violations. Even assuming Defendants could prove the patrons and dancers were at imminent risk of serious injury, Defendants never claimed to have been made aware of the potential for injury prior to entering. Therefore, at the time of the search, Defendants cannot claim their entry was justified based on the need to assist persons, because they were not aware that there were fire code violations that necessitated prompt action.
Defendants next argue that their search met the administrative search exception. Although owners and operators of businesses have an expectation of privacy in commercial property, the expectation of privacy in commercial premises "is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 482 U.S. 691, 699-700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Although searches in commercial premises generally require a warrant in order to be reasonable, "legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment because adequate privacy protection may be provided by [the regulatory schemes]." Crosby v. Paulk, 187 F.3d 1339, 1346 (11th Cir. 1999) (internal quotation marks and citation omitted). Because, the privacy "expectation is particularly attenuated in commercial property employed in ‘closely regulated’ industries," Burger, 482 U.S. at 700, 107 S.Ct. 2636, "an administrative inspection of a closely regulated business is a well-established exception to the warrant requirement for a search." Crosby, 187 F.3d at 1346.
However, a warrantless inspection of a pervasively regulated business is only reasonable when three criteria are met: (1) there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made; (2) the warrantless inspections must be necessary to further the regulatory scheme; and (3) the statute's inspection program, in terms of the certainty and regularity of its application, must provide a "constitutionally adequate substitute for a warrant." Burger, 482 U.S. at 702-03, 107 S.Ct. 2636 ; Crosby, 187 F.3d at 1346. With respect to the third requirement, "the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers." Burger, 482 U.S. at 703, 107 S.Ct. 2636.
Plaintiff does not challenge that it operates in a closely regulated industry [see Doc. 34 at 13 ("In closely regulated industries like adult entertainment ....")]. See also Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) ; Crosby, 187 F.3d at 1346 ("The liquor industry long has been subject to close supervision and inspection.") (internal quotation marks and citation omitted); WBY, Inc. v. DeKalb Cty., Ga., 766 F. App'x 852, 858 (11th Cir. 2019) (noting all of the parties "agree[d] that adult-entertainment clubs are ‘closely regulated’ industries"). Rather, Plaintiff argues that Defendants have failed to identify a statute or ordinance authorizing the type of inspection conducted at Plaintiff's premises. However, the IFC--adopted by Defendant Sandy Springs--plainly authorizes such a search. Therefore, Plaintiff's argument is without merit.
Section 104.3 of the IFC states, in relevant part:
Where it is necessary to make an inspection to enforce the provisions of this code, or where the fire code official has reasonable cause to believe that there exists in a building or on any premises any conditions or violations of this code that make the building or premises unsafe, dangerous or hazardous, the fire code official shall have the authority to enter the building or premises at all reasonable times to inspect or to perform the duties imposed on the fire code official by this code.
Int'l Fire Code § 104.3.
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Plaintiff next argues that a warrantless administrative search may not be pretext "to ignore the requirement for a warrant where ‘the primary purpose of the search or seizure [is] to detect evidence of ordinary criminal wrongdoing.’ " Bruce v. Beary, 498 F.3d 1232, 1239 (11th Cir. 2007). However, "an administrative search is not rendered invalid because it is accompanied by some suspicion of wrongdoing." Id. at 1242 (citing United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) ). In Bruce, city officials received a criminal complaint and acted on that complaint to inspect the plaintiff's premises pursuant to a Florida statute. Id. The Eleventh Circuit noted that just because the officers had "an objectively reasonable basis to suspect they might find stolen cars or car parts in their inspection d[id] not invalidate that inspection." Id. Plaintiff is correct that the administrative search exception should not be permitted to become "pretext[ ] for crime control." Id. at 1241 (internal quotation marks and citation omitted).
Here, however, Plaintiff has not identified what "crime" Defendants were allegedly trying to investigate. Even in Bruce, where the defendants admitted to searching the plaintiff's premises pursuant to a tip, the Eleventh Circuit refused to find that the primary purpose of the search was "to detect evidence of ordinary criminal wrongdoing." Id. Without more to suggest that Defendants had "direct criminal suspicion" of wrongdoing in Plaintiff's establishment, Plaintiff's allegations are insufficient to suggest the search was pretext for investigating criminal wrongdoing. The Court therefore finds that Defendants were permitted to conduct a warrantless administrative inspection of Plaintiff's premises for the purpose of looking for fire code violations.
Plaintiff next argues that the search was unreasonable in its scope and execution. As with any search, "the scope and execution of an administrative inspection must be reasonable in order to be constitutional." Bruce, 498 F.3d at 1244. In this regard, "an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it." Id. at 1248. The Eleventh Circuit has on at least four prior occasions considered whether an administrative inspection was reasonable under the Fourth Amendment. In Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995) the Eleventh Circuit reviewed the constitutionality of two raids on a nightclub that were executed in response to complaints that drug transactions were being conducted there. Swint, 51 F.3d at 992-93. The raids were conducted with the help of a SWAT team, several of the officers pointed weapons at patrons, and the club patrons and employees were searched and detained for over an hour and a half. Id. at 993. The court rejected the officers’ contention that the searches were valid administrative inspections, noting that the "massive show of force and excessive intrusion" displayed during the raids far exceeded that of previous administrative inspections of the club. Id. at 999.
In Crosby v. Paulk, forty law enforcement officers searched adjoining nightclubs that were suspected of violating underage drinking laws. Crosby, 187 F.3d at 1343-33. "The officers stopped the band music, ordered the house lights to be illuminated, told the bartenders to stop serving alcohol, ordered the patrons to remain where they were, and instructed people on the dance floor to sit on the floor and not to return to their tables." Id. at 1343 n.5. The officers then checked the identifications of roughly 400 patrons, "many of whom were underage college students consuming alcoholic beverages." Id. at 1343, 1348. The investigation lasted two hours and resulted in fifty-four convictions for underage drinking. Id. at 1343. The court found that the searches were not unreasonable and that the officers’ actions "were not violative of clearly established law governing warrantless administrative searches that a reasonable government official would have known in 1994." Id. at 1349.
Next, in Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007), a group of twenty officers surrounded an auto-body repair shop and blocked all of the exits after an individual who purchased a car at the shop complained that the vehicle identification number ("VIN") plant did not match the confidential vehicle identification number ("CVIN") sticker on the car. Bruce, 498 F.3d at 1235-36. The officers, some of whom were dressed in SWAT uniforms with ballistic vests, entered the shop with guns drawn and ordered all of the employees to line up along a fence. Id. at 1236. The court held that search was more akin to a criminal raid than a routine inspection and therefore exceeded the bounds of the Fourth Amendment. Id. at 1245.
Lastly, in WBY, Inc. v. DeKalb Cty., Ga., the DeKalb County Police Department's vice unit decided to conduct "overt compliance checks" of the five adult clubs located in unincorporated DeKalb County. WBY, Inc., 766 F. App'x at 854. The inspection of the plaintiff's premises involved a total of thirty-six officials, including twelve members of the SWAT unit's Strike Force, every detective in both the vice and narcotics unit, a permits-unit officer, ordinary uniformed officers, code-compliance officials, and two state-revenue agents. The officers yelled at patrons and employees, used profanity, shoved an employee who was allegedly complying with officer commands, and removed the owner from the club in a "pain hold." Id. at 861. All fifty-five of the club's dancers were told to line up and submit to individual photographs--a process that took two hours. Id. One entertainer was "put to the floor" and arrested for talking on her cell phone. Id. The Eleventh Circuit affirmed the jury's verdict, finding a reasonable jury "could have concluded that the inspection of [the plaintiff] was unreasonable in scope and execution." The court noted that prior administrative inspections had been conducted much differently and without incident. It additionally noted that the jury could have felt the number of officers was "grossly disproportionate to the administrative needs that justified the inspection" and that the inspection was "unreasonably extended for a purpose aside from the administrative needs that justified the inspection." Id. at 861-62.
Plaintiff describes the raid conducted by Defendants as follows. City officials "stop[ped] all activity in the clubs (turn off the music, turn on the house lights, stop dance performances, and check identification), and segregate[d] patrons from dancers and employees" [Doc. 29 at 10 ¶ 30]. During the inspection, patrons and employees would not be permitted to enter or leave [Doc. 29 at 10 ¶ 30]. Unlike the raids in Swint, Bruce, and WBY, Inc., Defendants’ inspection--as described by Plaintiff--did not involve the use of weapons or physical violence or the presence of a SWAT team. Instead, Defendants’ inspection sounds almost identical to the inspection in Crosby, which the Eleventh Circuit determined was not unreasonable as a matter of law. The Court therefore finds that on the facts of Plaintiff's complaint--even in reading Plaintiff's complaint in a light most favorable to it--Defendants’ inspection was reasonably conducted and Defendants’ actions were not violative of clearly established law governing warrantless administrative searches that a reasonable government official would have known.
Plaintiff last argues that Defendants’ conduct resulted in the unlawful seizure of Plaintiff's establishment [Doc. 29 at 21 ¶ 62]. A seizure occurs under the Fourth Amendment when there is a meaningful interference with an individual's possessory interest. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). The parties agree that under Camara v. Mun. Court of City and Cty. of S.F., 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and Marshall v. Barlow's Inc., 436 U.S. 307, 321, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), "reasonableness" is the test applied to a closing of a premises. See also Soldal v. Cook Cty., 506 U.S. 56, 71, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (" ‘Reasonableness is still the ultimate standard’ under the Fourth Amendment[.]"). Defendants contend that their action was reasonable given the interest in public safety and need to protect the public from potential fire hazards. In response, Plaintiff argues that if its premises was so dangerous, Defendants should not have waited five days before closing it. See Kinnison v. City of San Antonio, 480 F. App'x 271, 279 (5th Cir. 2012) (noting "delays can serve as evidence of unreasonableness if lengthy enough to call into question the existence of vel non of an emergency") (internal quotation marks and citation omitted).
Plaintiff's pretext argument fails once again. As previously stated, Defendants have justified their closure order with evidence of a bona fide and serious violation of the Sandy Springs Fire Code. Because the Court finds the allegations insufficient to support a claim against Defendant Brown for a Fourth Amendment violation, Defendant Sandy Springs likewise cannot be found liable.
Even if Plaintiff could show there was a Fourth Amendment violation, again, Plaintiff has not established that the alleged unconstitutionality of such conduct is "clearly established." Plaintiff continues to challenge the severity of the fire code violations, suggesting the violations were pretextual. However, because Defendants’ decision to close Plaintiff's property was not plainly and objectively unjustified, the Court will not consider any bare allegations of Defendants’ subjective bad faith. Accordingly, the Court finds that Defendant Brown is entitled to qualified immunity on all four constitutional claims.
D. Supplemental Jurisdiction
Defendants last argue that the Court should decline to exercise supplemental jurisdiction over Plaintiff's negligence claim. "[W]hen the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction[.]" Carnegie-Mellon Univ. v. Cohil, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ; see also L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984) ("[I]f the federal claims are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of the state claims."). Because the Court dismisses Plaintiff's constitutional claims, the Court declines to exercise jurisdiction over Plaintiff's state-law negligence claim.
V. CONCLUSION
For the reasons provided above, the Court GRANTS Defendants’ Motion to File Excess Pages [Doc. 30] and Plaintiff's Motion to File Excess Pages [Doc. 35]. The Court also GRANTS Defendants’ Motion to Dismiss for Failure to State a Claim [Doc. 31], finding that Defendant Brown is entitled to qualified immunity and that Plaintiff's Second Amended Complaint fails to state a claim for which relief can be granted. Because there are no longer federal claims before the Court, the Court does not retain jurisdiction over Plaintiff's state-law negligence claim through supplemental jurisdiction.
SO ORDERED, this 26th day of August, 2020.