The Indigo Room, Inc. v. City of Fort Myers

589 F. App'x 938
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 16, 2014
Docket14-11041
StatusUnpublished
Cited by7 cases

This text of 589 F. App'x 938 (The Indigo Room, Inc. v. City of Fort Myers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Indigo Room, Inc. v. City of Fort Myers, 589 F. App'x 938 (11th Cir. 2014).

Opinion

PER CURIAM:

Plaintiffs-appellants The Indigo Room, Inc., Raimond Aulen, and Dylan Jones (collectively, “Appellants”), appeal the district court’s grant of summary judgment in favor of defendants-appellees the City of Fort Myers (“City”), Fort Myers Police Chief Douglas Baker, and Fort Myers Police Officer Alain Gagnon (collectively, “Appellees”). Appellants sued Appellees under 42 U.S.C. § 1983 for alleged ongoing and threatened violations of their First, Fourth, and Fourteenth Amendment rights, resulting in part from the City’s enforcement of an ordinance prohibiting persons under the age of twenty-one from entering certain alcohol-serving establishments. After careful review of the record and consideration of the parties’ arguments, we affirm the entry of summary judgment in favor of Appellees.

I.

Aulen is the owner of the Indigo Room, a commercial business in downtown Fort *940 Myers, Florida, that serves food and alcoholic beverages. Aulen opened the Indigo Room in 1996 and has been active in local politics since that time. He alleges that in September 2011 he increased his political activity, much of which was critical of the City and the police department, causing the Appellees to retaliate against him.

In 2011, during the alleged violations, Jones was nineteen years old and a member of “Occupy Fort Myers.” 1 He asserts that he was cited by police for violating the underage-persons ordinance in retaliation for attending one of Aulen’s political events at the Indigo Room. Before addressing the merits, we first summarize the evidence relevant to Appellants’ political activity, Appellees’ alleged retaliatory conduct, and Appellees’ awareness of Appellants’ political activity.

A. Appellants’ Political Activity

In September 2011, Aulen became actively involved with two groups known as Wake Up Fort Myers (“Wake Up”) and Find a Better Way for Lee County (“Find a Better Way”), which supported an anti-discrimination amendment to the City’s charter that prohibited, among other things, discrimination against persons based on age once they reach the age of majority. In particular, Aulen took issue with Fort Myers, Fla., Code § 6-88 (the “Ordinance”), which provides, “It shall be unlawful for persons under the age of 21 years to enter or remain in any alcoholic beverage establishment, or to be permitted to do so by owners, managers, employees or independent contractors of alcoholic beverage establishments, except as ... provided.” The City enforced that Ordinance against what it deemed to be alcohol-serving nightclubs, including the Indigo Room, to preclude 18-to-20-year-old people from patronizing them. In support of the amendment initiative, Aulen held voter-registration drives at the Indigo Room from September 2011 until the November 2011 election.

In addition, around this time, Aulen was interviewed on the local television news and was critical of the mayor of Fort Myers. Aulen also sent an email to “concerned citizens,” claiming that the police department was ineffective and unresponsive in certain respects. Later, Aulen was the leader of a charter-amendment effort to consolidate the police with the Lee County Sheriffs Office.

Aulen and Jones were both affiliated with Occupy Fort Myers (“Occupy”), and Aulen sometimes partnered with Occupy to host events at the Indigo Room. On November 17, 2011, Aulen held a petition drive to request an ethics investigation into the current mayor. Jones, who was wearing an Occupy t-shirt, and several other Occupy members entered the Indigo Room to sign the petition, signed the petition, and immediately exited. When Jones left the Indigo Room, Gagnon and Officer Najar were outside talking with members of Jones’s group who had left before Jones. The officers asked the group for identification, stating that individuals coming out of the Indigo Room looked like they were under twenty-one. Jones then admitted that he was under twenty-one and received a citation for violating the Ordinance. The other individuals in Jones’s group were over twenty-one and were not cited. Aulen, who also was wear *941 ing an Occupy t-shirt and was listed as the alcoholic-beverage-license holder for the property, was cited under the Ordinance as well.

As a result of these political activities, Aulen asserts, the City retaliated against him and his business by disproportionately increasing the number of inspections and citations to which it subjected them. Jones contends that the citation that he received on November 17, 2011, was in retaliation for exercising his First Amendment rights.

B. Appellees’ Alleged Retaliatory Conduct

The police department conducts war-rantless administrative inspections at alcohol-serving businesses in downtown Fort Myers, such as the Indigo Room, to ensure compliance with alcoholic-beverage laws. These inspections are authorized by statute. See Fla. Stat. § 562.41. The police department conducts planned operations, usually initiated by the officer or officers responsible for patrolling the area, as well as unplanned inspections, while on patrol. Baker, as Chief of Police, does not personally select businesses for administrative inspections or determine the frequency of those inspections. He has directed that inspections not be limited to a single geographic area.

Gagnon testified that, as a bike-unit officer in downtown Fort Myers, he is responsible for conducting inspections of alcohol-serving establishments in the area. Generally, he decides which locations will be targeted in a planned operation. There are no guidelines to determine the frequency of administrative inspections, although he often conducts them in response to reports of underage presence at the locations. The inspections generally take less than an hour and are conducted by at least two officers. All alcohol-serving establishments in the downtown area are inspected. ' According to both Baker and Gagnon, the frequency with which a given establishment is inspected is linked to past violations. If police find violations at a particular place, they are more likely to return to ensure compliance.

According to Aulen, the Indigo Room did not permit entry to underage persons from 2002, when the Ordinance went into effect, until September 2011. In the fall of 2011, however, Aulen took the position that the Indigo Room qualified for an exemption under the Ordinance as a “bona fide restaurant,” which would have allowed him to admit persons under twenty-one. 2 Then, Aulen held three “18 and up” events at the Indigo Room in September 2011. After the second of these events, Gagnon brought Aulen copies of the Ordinance, explained that persons under twenty-one could not enter the Indigo Room, and informed Aulen that he would be cited for violating the Ordinance if he again allowed entry to underage persons. Aulen responded that he intended to continue hosting 18-to-20-year-old people at the Indigo Room on Tuesdays. True to his word, on September 27, 2011, Aulen held a third “18 and up” event.

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589 F. App'x 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-indigo-room-inc-v-city-of-fort-myers-ca11-2014.