415 F.Supp.3d 1087
M.D. Fla.2019Background
- Tampa Ordinance 2017-47 prohibited licensed providers from performing sexual-orientation or gender-identity change efforts (SOCE/conversion therapy) on minors within city limits and prescribed civil fines enforced by the City’s Code Enforcement/Neighborhood Enhancement process.
- The Ordinance applied only to licensed practitioners (physicians, psychologists, licensed counselors, etc.), excluded clergy acting in pastoral roles, and allowed speech outside of therapy and treatment of adults.
- Plaintiffs (a licensed marriage-and-family therapist and a Christian ministry) sued, alleging among other claims that the Ordinance is impliedly preempted by Florida law regulating healthcare and professional discipline (Count VI).
- The City defended under its home-rule/police powers to protect minors and argued the Ordinance regulates local conduct, not the statewide practice of medicine.
- The district court avoided resolving the parties’ First Amendment dispute and granted summary judgment to Plaintiffs on Count VI, finding the Ordinance impliedly preempted by Florida’s pervasive, uniform regulatory scheme for health professions and discipline; the Ordinance was permanently enjoined and stricken.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tampa Ordinance is impliedly preempted by Florida law governing health professions | Florida law (Chs. 456, 458, 459, 490, 491, and related regs) creates a pervasive, uniform statewide scheme occupying the field; municipal regulation would conflict | City contends its ordinance is a valid exercise of municipal police/home-rule power to protect minors and does not regulate licensure or discipline statewide | Court: Ordinance is impliedly preempted; state occupies the field of substantive health-care regulation and discipline; grant SJ for Plaintiffs on Count VI |
| Whether Tampa’s enforcement scheme conflicts with state disciplinary procedures (standards, adjudicators, review) | City’s civil code enforcement process (special magistrate, greater-weight standard, circuit-court review limited to record) conflicts with state uniform discipline (clear-and-convincing standard, administrative adjudicators, appellate review) | City asserts code-enforcement is appropriate local enforcement and not a substitute for licensure discipline | Court: Found direct conflict — Tampa’s lesser burden and different adjudicatory process undermines the Legislature’s uniform discipline scheme |
| Whether municipal home-rule/police power authorizes substantive regulation of licensed therapy | Plaintiffs: No; Legislature has not delegated substantive regulation of health professions to municipalities; uniform statewide rules were intended | City: Home-rule police power permits local measures to protect public health/safety of minors | Court: Legislative supremacy and pervasive state regime mean municipalities cannot substantively regulate in this field where the Legislature has occupied it |
| Remedy — scope of relief and injunction | Plaintiffs sought declaratory judgment and permanent injunction against enforcement | City opposed striking the Ordinance | Court: Permanently enjoined enforcement and ordered Ordinance stricken; entered judgment for Plaintiffs |
Key Cases Cited
- BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169 (11th Cir. 2001) (federal courts should avoid constitutional questions when other grounds can decide the case)
- District of Columbia v. Little, 339 U.S. 1 (U.S. 1950) (Supreme Court endorsement of avoiding unnecessary constitutional rulings)
- D’Agostino v. City of Miami, 220 So. 3d 410 (Fla. 2017) (Florida Supreme Court on implied preemption—state regulatory schemes can preempt municipal action)
- Classy Cycles, Inc. v. Bay Cty., 201 So. 3d 779 (Fla. 1st DCA 2016) (state’s pervasive regulatory scheme impliedly preempted local insurance/vehicle rules)
- Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010) (consideration of state delegation to local authorities when evaluating preemption)
- Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (upholding municipal/state bans on conversion therapy)
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. 2018) (Supreme Court remarks relevant to First Amendment analysis cited by the court)
- Otto v. City of Boca Raton, 353 F. Supp. 3d 1257 (S.D. Fla. 2019) (similar challenge to municipal SOCE bans and observations about state disciplinary records)