Case Information
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION SUPPORT WORKING
ANIMALS, INC., et al.,
Plaintiffs , v. CASE NO.: 4:19cv570-MW/MAF RON DESANTIS, in his official
capacity as Governor of the State
of Florida, et al.,
Defendants .
_________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
This is a constitutional challenge to a recent amendment to the Florida Constitution prohibiting commercial dog racing in connection with wagering. Plaintiffs allege that the amendment violates the Takings Clause (Count I), the Equal Protection Clause (Count II), the Contracts Clause (Count III), and the Due Process Clause (Count IV). ECF No. 24. Defendants move to dismiss Plaintiffs’ Amended Complaint in its entirety. ECF No. 33.
Defendants argue Plaintiffs’ claims should be dismissed for lack of subject matter jurisdiction and for failure to state a claim. For the reasons stated below, this Court finds that it has jurisdiction over some, but not all, of Plaintiffs’ claims but finds Plaintiffs have failed to plausibly allege the amendment is unconstitutional. Accordingly, Defendants’ motion to dismiss is GRANTED .
I. Legal Standard
This Court accepts the allegations in the Amended Complaint as true and
construes them in the light most favorable to Plaintiffs.
See Hunt v. Amico Props.,
L.P.
,
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction “can
be asserted on either facial or factual grounds.”
Carmichael v. Kellogg, Brown &
Root Servs., Inc.
,
II. Factual Background
The pertinent facts, accepted as true and construed in the light most favorable to Plaintiffs, are as follows. Dog racing is part of Florida’s pari-mutuel industry. See Am. Compl. [ECF No. 24] ¶ 35. The pari-mutuel industry mainly consists of venues conducting pari-mutuel sports such as horse racing and greyhound racing. See id. ¶ 60. Greyhound racing has been a legal and thriving industry in Florida since the state legislature legalized gambling on dog races in 1931. Id. ¶ 9. Today, a web of state statutes and regulations form a comprehensive regulatory regime governing the industry. See id. ¶¶ 9, 35
In the lead-up to the November 2018 General Election, the “stars aligned against the greyhound industry with conservatives and liberals alike using their united political war-chests to deprive the greyhound industry of their livelihoods . . . .” Id. ¶ 42. Prominent political figures, the Humane Society of the United States, and the Animal Law Section of the Florida Bar lobbied successfully during the Constitutional Revision Commission process to have an amendment (“Amendment 13”) placed on the ballot in the November 2018 General Election. Id. ¶¶ 39–45. On November 6, 2018, 69.1% of Florida voters approved Amendment 13. [1] See id. ¶ 23.
Amendment 13 is now codified as article X, section 32 of the Florida Constitution. It states:
The humane treatment of animals is a fundamental value of the people of the State of Florida. After December 31, 2020, a person authorized to conduct gaming or pari-mutuel operations may not race greyhounds or any member of the Canis Familiaris subspecies in connection with any wager for money or any other thing of value in this state, and persons in this state may not wager money or any other thing of value on the outcome of a live dog race occurring in this state. The failure to conduct greyhound racing or wagering on greyhound racing after December 31, 2018, does not constitute grounds to revoke or deny renewal of other related gaming licenses held by a person who is a licensed greyhound permitholder on January 1, 2018, and does not affect the eligibility of such permitholder, or such permitholder’s facility, to conduct other pari-mutuel activities authorized by general law. By general law, the legislature shall specify civil or criminal penalties for violations of this section and for activities that aid or abet violations of this section.
Consequently, as of January 1, 2021, licensed Florida pari-mutuel operators will be forbidden from racing any dog in Florida in connection with a wager and all persons in Florida will be prohibited from wagering on live dog races which occur in Florida. Plaintiffs, owners of businesses in Florida’s greyhound racing industry and an organization dedicated to protecting the rights of owners of working animals, assert claims against Defendants Ron DeSantis, in his official capacity as Florida Governor (“the Governor”), Laurel Lee, in her official capacity as Florida Secretary of State (“the Secretary”), and Ashley Moody, in her official capacity as Florida Attorney General (“the Attorney General”).
III. Jurisdictional Issues
This Court will first explain why this case need not be dismissed for lack of subject-matter jurisdiction. As explained below, Plaintiffs have standing, their claims are ripe for review, and the Eleventh Amendment does not bar Plaintiffs’ claims against the Attorney General. [2]
A. Standing
“Standing ‘is the threshold question in every federal case, determining the
power of the court to entertain the suit.’ ”
CAMP Legal Def. Fund, Inc. v. City of
Atlanta
,
Plaintiffs make numerous allegations in the Amended Complaint that
demonstrate an injury in fact—namely, the economic loss resulting from their
impending inability to operate businesses in the pari-mutuel dog racing industry.
See
Adinolfe v. United Techs. Corp.
,
Defendants’ arguments regarding the second and third elements of standing
are both based on their erroneous contention that none of the Defendants have
enforcement authority for Amendment 13 and are therefore neither the cause of
Plaintiffs’ injuries nor are they able to redress them. “In the context of this pre-
enforcement challenge to a legislative enactment, the causation element does not
require that the defendants themselves have ‘caused’ [plaintiffs’] injury by their own
acts or omissions in the traditional tort sense; rather it is sufficient that the ‘injury is
directly traceable to the passage of [the Act].’ ”
Reprod. Health Servs. v. Strange
,
Finally, Plaintiffs’ injury would be redressed by a judgment declaring
Amendment 13 unconstitutional and enjoining its enforcement.
Ga. Latino All.
, 691
F.3d at 1260;
Reprod. Health Servs.
,
For these reasons, this Court finds that Plaintiffs have sufficiently established standing to bring their claims at this stage of the proceedings. [4]
B. Ripeness
“Ripeness is peculiarly a question of timing. Its basic rationale is to prevent
the courts, through premature adjudication, from entangling themselves in abstract
disagreements.”
Fla. ex rel. McCollum
,
Because Amendment 13 will not take effect until January 1, 2021, Defendants
argue Plaintiffs’ claims are unripe because “the future is clouded by the twin
unknowns” of what actions Plaintiffs may take in the interim and the nature of the
civil or criminal penalties the Florida Legislature will eventually enact pursuant to
Amendment 13. ECF No. 33 at 17. “However, ‘[w]here the inevitability of the
operation of a statute against [plaintiffs] is patent, it is irrelevant to the existence of
a justiciable controversy that there will be a time delay before the disputed provisions
come into effect.’ ”
Fla. ex rel. McCollum
, 716 F. Supp. 2d at 1149 (quoting
Blanchette v. Conn. Gen. Ins. Corps.
, 419 U.S. 102, 143 (1974)). “The Supreme
Court has long . . . held that where the enforcement of a statute is certain, a
preenforcement challenge will not be rejected on ripeness grounds.”
Id.
(quoting
Fla. State Conf. of the NAACP v. Browning
,
The alleged injury in this case is “certainly impending” as there is no reason
whatsoever to doubt that Amendment 13’s prohibitions will come into effect on
January 1, 2021.
See Babbit v. United Farm Workers Nat’l Union
,
Moreover, as Plaintiffs’ allegations regarding their employees’ departures
illustrate, the fact that Amendment 13 does not go into effect until 2021 does not
mean that its effects will not be felt in the immediate or very near future. In short,
Amendment 13 “requires an immediate and significant change in the [P]laintiffs’
conduct of their affairs with serious penalties attached to noncompliance.”
See
Abbott Labs v. Gardner
, 387 U.S. 136, 153 (1967). “The Eleventh Circuit has
recognized that ‘[p]otential litigants suffer substantial hardship if they are forced to
choose between foregoing lawful activity and risking substantial legal sanctions.’ ”
Life Partners, Inc.
,
C. Sovereign Immunity
“Under the Eleventh Amendment, ‘a state may not be sued in federal court
unless it waives its sovereign immunity or its immunity is abrogated by an act of
Congress under section 5 of the Fourteenth Amendment.’ ”
[6]
Osterback v. Scott
, 782
F. App’x 856, 858 (11th Cir. 2019) (quoting
Grizzle v. Kemp
,
But there is an exception to the exception; namely, a plaintiff may not
challenge a state law by choosing whichever state official appears most convenient
and haling them into federal court under the aegis of 42 U.S.C. § 1983. “Under
Ex
parte Young
, a litigant must bring his case ‘against the state official or agency
responsible for enforcing the allegedly unconstitutional scheme.’ ”
Id.
at 858–59 (quoting
ACLU v. Fla. Bar
,
Defendants, state officials sued in their official capacities, assert that they are immune from suit under the Eleventh Amendment and are therefore not proper parties. Defendants argue (1) they have no enforcement authority because Amendment 13 is “self-executing” and there is no statute for them to enforce until the Florida Legislature enacts civil or criminal penalties, [7] and (2) once the Florida Legislature has specified these penalties, Defendants will still lack enforcement authority because they do not have specific enforcement duties with respect to any gambling-related activities in Florida. See ECF No. 33 at 6.
For the following reasons, this Court concludes the Governor and the Secretary are immune from suit under the Eleventh Amendment and are therefore not proper parties to this suit. The Attorney General, however, is a proper defendant under Ex parte Young because of her authority to enforce Amendment 13’s proscriptions.
The Governor
Plaintiffs argue the Governor is a proper party because (1) “it is the
Governor’s duty to take care that the laws of the state of Florida are faithfully
followed and executed” and (2) the Governor “has clearly demonstrated his vested
power to intervene, revise and delay the implementation of” Amendment 13 as
demonstrated in the Governor’s “fight against” Amendment 4, an amendment passed
under the same constitutional amendment mechanism. Am. Compl. ¶ 26;
see also
Resp. at 8–9. With respect to Plaintiffs’ first point, “the Governor’s constitutional
and statutory authority to enforce the law and oversee the executive branch do not
make him a proper defendant under
Ex parte Young
.”
Osterback
, 782 F. App’x at
859;
see Women’s Emergency Network v. Bush
,
The Secretary
The Secretary is a closer call. She argues she has no authority to enforce
Amendment 13 and “has no duties related to racing of any animal or gambling of
any kind.” ECF No. 33 at 8. But
Ex parte Young
does not require a grant of explicit
enforcement authority. Rather, it requires “some connection with the enforcement
of the act.”
The Secretary is the custodian of Florida’s original statutes and records,
see
§§ 15.01, 15.02, & 20.10, Fla. Stat. (2019), and the official in charge of the
department tasked with “general supervision and administration” of “corporation
laws and such other such laws as are placed under it by the Legislature” and with
classifying, numbering, and furnishing copies of Florida’s laws.
See
§§ 15.13,
15.155, Fla. Stat. (2019). She would therefore seem to possess the requisite
connection with the enforcement of the “civil or criminal penalties” that will compel
compliance with Amendment 13.
[8]
Moreover, Florida case law supports the
conclusion that the Secretary of State is a proper party against whom to grant relief
if Amendment 13 is indeed unconstitutional.
See, e.g.
,
Murray v. Lewis
, 576 So. 2d
264, 266 (Fla. 1990) (declaring statute unconstitutional and directing the Florida
Secretary of State to expunge it);
Dickinson v. Stone
,
Despite these powers and responsibilities, a finding that the Secretary is a
proper defendant would run afoul of the concerns raised in the Eleventh Circuit’s
recent en banc decision in
Lewis v. Governor of Alabama
,
The Eleventh Circuit’s reasoning in
Lewis
is instructive here. While the court
declined to consider whether the Alabama Attorney General was a proper defendant
under
Ex parte Young
,
see id.
at 1296, “the requirements of
Ex parte Young
overlap
significantly with the last two standing requirements—causation and redressability.”
Doe v. Holcomb
,
Accordingly, guided by the reasoning articulated in Lewis , this Court concludes the Eleventh Amendment bars Plaintiffs’ claims against the Secretary. This Court is therefore without jurisdiction over Plaintiffs’ claims against the Secretary and those claims must be dismissed.
The Attorney General
The Attorney General argues she is not a proper defendant because it will be
Florida’s state attorneys’ responsibility to enforce any statutory penalties for
violations of Amendment 13. ECF No. 33 at 11. It is true that Florida’s Constitution
provides that each “state attorney shall be the prosecuting officer of all trial courts
in [her] circuit . . . .” Fla. Const. art. V, § 17. But the Attorney General is charged
with “exercis[ing] a general superintendence and direction over the several state
attorneys . . . as to the manner of discharging their respective duties . . . .” § 16.08,
Fla. Stat. (2019). The Attorney General’s authority to superintend and direct the state
attorneys constitutes a sufficient connection to the enforcement of the forthcoming
statutory penalties for violations of Amendment 13 for purposes of
Ex parte Young
.
Cf. GeorgiaCarry.Org, Inc. v. Georgia
,
Additionally, as the Attorney General concedes, she is Florida’s chief legal
officer and is “vested with broad authority to act in the public interest and, when she
deems it necessary, to defend statutes against constitutional attack.” ECF No. 33
at 11. The Attorney General has the statutory duty to “appear in and attend to, in
behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which
the state may be a party, or in anywise interested in the Supreme Court and district
courts of appeal of this state . . . [and] in any other of the courts of this state . . . or
of the United States.” § 16.01(4)–(5), Fla. Stat. (2019). Even absent an express grant
of statutory authority, the Attorney General has “the common law power to institute
lawsuits to protect the public interest . . . .”
Florida v. Memberworks, Inc.
, No. 8:03-
cv-2267,
District courts in Florida have split on the issue of whether the Attorney
General’s powers under Florida law constitute a sufficient “connection” to the
enforcement of a challenged criminal statute for purposes of
Ex parte Young
. Some
courts have concluded that the Attorney General’s discretionary authority to
participate and be heard on matters affecting the constitutionality of a statute is an
insufficient “connection” to the enforcement of that statute for purposes of
Ex parte
Young
and that it is instead the state attorney with direct enforcement authority that
is the proper defendant.
See Roberts v. Bondi
, No. 8:18-cv-1062,
This Court finds the
Teltech
court’s reasoning to be persuasive. The Attorney
General wields broad statutory and common law authority to enforce Florida law,
including the authority to police compliance with Amendment 13 and to enforce the
forthcoming civil or criminal penalties. This Court has no quarrel with the notion
that, standing alone, the Attorney General’s discretionary authority to intervene in
cases where the constitutionality of a statute is challenged is insufficient to make her
a proper defendant under
Ex parte Young.
But in cases where, as here, she will have
the authority to directly enforce the challenged law, the Attorney General falls within
the
Ex parte Young
exception.
See Teltech Sys., Inc.
,
Importantly, the concerns raised by the Eleventh Circuit in Lewis are not present here. The challenged statute in Lewis “provide[d] for no enforcement mechanism whatsoever” and instead contemplated private lawsuits between employers and employees. 944 F.3d at 1299; see id. at 1300 n.10 (noting the challenged statute “do[es’nt] contemplate state enforcement but, rather, merely regulate[s] the everyday relationships between private parties”). In contrast, Amendment 13 does not provide a private right of action to enforce its prohibition on the pari-mutuel dog racing industry. Instead, Amendment 13 expressly directs the Florida Legislature to “specify civil or criminal penalties for violations of this section and for activities that aid or abet violations of this section.” Thus, unlike the Alabama Attorney General in Lewis , the Attorney General will have the authority to “institute[e] a prosecution under—or otherwise affirmatively enforc[e]” Amendment 13’s proscriptions . See id. at 1301; cf. Summit Med. Assocs. , 180 F.3d at 1341 (holding “[t]he Eleventh Amendment bars Appellee’s challenge to the private civil enforcement provision of the partial-birth abortion statute” because Ex parte Young applies “[o]nly if a state officer has the authority to enforce an unconstitutional act in the name of the state”).
It is therefore not the case that the Attorney General “plays no role in enforcing” Amendment 13. ECF No. 33 at 11. To the contrary, the Attorney General could “superintend and direct” the state attorneys to bring prosecutions under Amendment 13’s forthcoming civil or criminal penalties, §16.08, Fla. Stat.; she could independently institute such prosecutions, see Memberworks, Inc. , 2003 WL 27374081, at *3; and she could intervene in the trial of the case or on appeal, § 16.01(4)–(5), Fla. Stat. That is sufficient to bring Plaintiffs’ claims against her within Ex parte Young .
Moreover, finding the Attorney General to be a proper defendant in this case
is consistent with decades of Supreme Court precedent finding standing in
preenforcement constitutional challenges to state laws.
See, e.g.
,
Susan B. Anthony
List v. Driehaus
,
For these reasons, the Eleventh Amendment does not bar Plaintiffs’ claims against the Attorney General.
IV. Adequacy of Plaintiffs’ Claims
Having determined Plaintiffs’ claims against the Attorney General are not due to be dismissed pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction, this Court now turns to the sufficiency of Plaintiffs’ allegations under Rule 12(b)(6).
A. Takings Clause Claim (Count I)
Plaintiffs claim that the enactment of Amendment 13 effected a “taking”
under the Fifth and Fourteenth Amendments because it deprived Plaintiffs of
“substantially all economically beneficial or productive use of their property and
return on their investments.” Am. Compl. ¶¶ 58, 63. The Taking Clause of the Fifth
Amendment, applicable to the States through the Fourteenth Amendment, prohibits
the government from taking private property for public use without just
compensation.
[10]
U.S. Const. amend. V.;
see Murr v. Wisconsin
, 137 S. Ct. 1933,
1942 (2017). A takings claim is evaluated under a two-part analysis.
See Givens v.
Ala. Dep’t of Corrs.
,
Defendants argue Plaintiffs fail to state a claim under the Takings Clause
because Plaintiffs (1) have not identified a constitutionally protected property
interest with which Amendment 13 interferes; (2) have not alleged a per se taking;
and (3) to the extent Plaintiffs bring an as-applied challenge to Amendment 13,
Plaintiffs have failed to allege the necessary elements to state a claim. Plaintiffs
respond that they have adequately pled the “general principles governing the
Takings Clause” and that discovery is required for a proper analysis of the factors
for as-applied takings claims outlined in
Penn Central Transportation Co. v. City of
New York
,
First, this Court finds that Plaintiffs have adequately alleged a constitutionally
protected property interest. “The Takings Clause protects private property; it does
not create it.”
Givens
,
Despite adequately identifying a cognizable Fifth Amendment property
interest, Plaintiffs have failed to allege a compensable “taking” of their dogs or dog
racing-related property. The Takings Clause does not require compensation unless
private property has been taken “for public use.” U.S. Const. amend. V. It is well-
settled that there is no taking for “public use” where the government acts pursuant
to its police power.
See Keystone Bituminous Coal Ass’n v. DeBenedictis
, 480 U.S.
470, 491 (1987) (“ ‘[A]ll property in this country is held under the implied obligation
that the owner’s use of it shall not be injurious to the community,’ and the Takings
Clause did not transform that principle to one that requires compensation whenever
the State asserts its power to enforce it.”) (citation omitted);
Goldblatt v. Town of
Hempstead
, 369 U.S. 590, 592 (1962) (“If this ordinance is otherwise a valid
exercise of the town’s police powers, the fact that it deprives the property of its most
beneficial use does not render it unconstitutional.”);
Sentell v. New Orleans & C.R.
Co.
,
The enactment of Amendment 13 represents a valid exercise of Florida’s
police power and is therefore not a “taking.” Through Amendment 13, Florida has
prohibited Plaintiffs’ property from being used in a particular manner that the State
has determined to be contrary to the health, morals, or safety of the community.
Whether Amendment 13’s purpose was to protect the health and welfare of racing
dogs or to prohibit wagering on dog races, Amendment 13 is a legitimate exercise
of Florida’s police power.
See Gulfstream Park Racing Ass’n, Inc. v. Tampa Bay
Downs, Inc.
,
Even assuming, arguendo, the “police power doctrine” were not fatal to
Plaintiffs’ takings claim, their claim would still fail for additional, independent
reasons. First, Plaintiffs have failed to state a claim for a per se taking. A per se
regulatory taking occurs where a regulation “denies all economically beneficial or
productive use of land.”
Murr
,
Second, Plaintiffs have also failed to allege facts sufficient to demonstrate an
as-applied regulatory taking under the test articulated in
Penn Central
. In that case,
the Supreme Court recognized three factors that should be considered to identify an
as-applied regulatory taking: (1) the economic impact of the regulation on the
plaintiff; (2) the extent to which the regulation interferes with the plaintiff’s
investment-backed expectations; and (3) the character of the governmental action.
Here, Plaintiffs fail to plausibly allege that Amendment 13 interferes with
their reasonable investment-backed expectations in their dog racing-related
property. Plaintiffs allege the dog racing industry has been permitted in the state of
Florida for nearly a century and they have “invested money in training, transporting,
breeding, and racing greyhounds.”
See
Am. Compl. ¶¶ 9, 21, 51. But, as Plaintiffs
themselves affirm, dog racing in Florida is a highly regulated industry.
Id.
¶¶ 9, 35;
see also
§ 550.1625(1), Fla. Stat. (“The operation of a dog track and legalized pari-
mutuel betting at dog tracks . . . is an operation that requires strict supervision and
regulation in the best interests of the state.”);
License Acquisitions, LLC v. Debary
Real Estate Holdings, LLC
, 155 So. 3d 1137, 1148 (Fla. 2014) (“Pari-mutuel
wagering is a heavily regulated industry in Florida.”);
Dep’t of Legal Affairs v.
Sanford-Orlando Kennel Club, Inc.
,
Plaintiffs assert that Florida’s First District Court of Appeal’s decision in
State
v. Basford
precludes dismissal of their takings claim.
See
Resp. at 13–14. In that
case, a Florida pig farmer challenged an amendment to the Florida Constitution
prohibiting the confinement of pregnant pigs in enclosures that “prevented [the pigs]
from turning around freely.”
This Court finds
Basford
distinguishable. The pig farming industry, while
certainly regulated to some extent, is in no way comparable to the heavily regulated
pari-mutuel gambling industry. Any reasonable investment-backed expectation held
by Plaintiffs must have incorporated Florida’s “extensive and complex regulatory
scheme” and considered Florida’s ability to use its police power “in a more arbitrary
manner” in controlling the pari-mutuel industry.
See Sanford-Orlando Kennel Club,
Inc.
,
For these reasons, Plaintiffs have failed to plausibly allege that a cognizable
“taking” has occurred.
See Nat’l Viatical, Inc.
,
B. Equal Protection Claim (Count II)
Plaintiffs claim Amendment 13 “denies equal protection because the State of
Florida allows wagering on all other animal racing and only prohibits wagering on
dog racing; one particular type of animal racing now considered politically
unpopular.” Am. Compl. ¶ 67. It is undisputed that Amendment 13 affects only
wagering on dog racing and does not directly affect other forms of gaming, including
horse racing.
See Dep’t of State v. Fla. Greyhound Ass’n, Inc.
,
The Fourteenth Amendment’s Equal Protection Clause requires that the
government treat similarly situated persons in a similar manner.
Leib v. Hillsborough
Cty. Pub. Transp. Comm’n
,
Here, Plaintiffs’ allegations fall far short of stating any viable Equal
Protection claim.
[14]
The rational basis test applies to Plaintiffs’ Equal Protection
claim because Amendment 13 does not involve suspect classes such as race, gender,
or national origin.
See F.C.C. v. Beach Commc’ns, Inc.
,
“The rational-basis test asks (1) whether the government has the power or
authority to regulate the particular area in question, and (2) whether there is a rational
relationship between the government’s objective and the means it has chosen to
achieve it.”
Avera v. Airline Pilots Ass’n Int’l
,
As the Eleventh Circuit has recognized, the rational basis standard is “highly deferential,” such that legislative acts reviewed under this standard are found to be unconstitutional “in only the most exceptional circumstances.” Id. Importantly, a court must give “great deference to economic and social legislation.” Gary , 311 F.3d at 1339. Under rational basis review, the challenged act will withstand scrutiny “even when there is an imperfect fit between means and ends.” See Leib , 558 F.3d at 1306.
Under this highly deferential standard, this Court concludes that Amendment
13 satisfies the rational basis test. Whether, as Plaintiffs assert, the purpose of
Amendment 13 is to protect greyhound dogs from being harmed or whether its
purpose is to prohibit a certain form of pari-mutuel wagering in the state,
Amendment 13 is rationally related to a legitimate state interest.
See Gulfstream
Park Racing Ass’n, Inc.
,
Plaintiffs’ argument that Amendment 13 violates the Equal Protection Clause
because it is underinclusive is unpersuasive. That Florida has chosen, in the field of
pari-mutuel wagering on animal races, to prohibit wagering on dog racing but not
horse racing simply embodies the permissible exercise of its discretion to “select one
phase of one field and apply a remedy there, neglecting the others.”
See Williamson
v. Lee Optical of Okla. Inc.
,
For these reasons, Plaintiffs have failed to plausibly allege a violation of the
Equal Protection Clause.
See Leib
,
C. Impairment of Contracts Claim (Count III)
Plaintiffs allege that Amendment 13 “impaired the contracts of all people
engaged in the business of dog racing in the State of Florida.” Am. Compl. ¶ 70. The
Contracts Clause provides that “[n]o State shall . . . pass any . . . Law impairing the
Obligation of Contracts . . . .” U.S. Const. art. I, § 10.
[15]
Although sweeping in its
language, that “Clause is not . . . the Draconian provision that its words might seem
to imply.”
Allied Structural Steel Co. v. Spannaus
,
Nevertheless, a state’s “sovereign power . . . to safeguard the welfare of [its]
citizens . . . has limits when its exercise effects substantial modifications of private
contracts.”
Id.
at 244 (citation and quotation omitted). But a “state regulation that
restricts a party to gains it reasonably expected from a contract does not necessarily
constitute a substantial impairment.”
See Energy Reserves Grp., Inc. v. Kan. Power
& Light Co.
,
Here, Plaintiffs fail to even allege the existence of a specific contract impaired
by Amendment 13.
Life Partners, Inc.
, 2008 WL 11337548, at *4 (dismissing
Contracts Clause claim because plaintiff “[did] not allege when the contracts were
executed or explain how the Act impairs those contracts”);
APT Tampa/Orlando,
Inc. v. Orange County
, No. 97-891-CIV,
Furthermore, even to the extent Amendment 13 substantially impairs
Plaintiffs’ contractual interests, Amendment 13 “rests on, and is prompted by,
significant and legitimate state interests.”
See Energy Reserves
, 459 U.S. at 416;
Gulfstream Park Racing Ass’n, Inc.
,
Plaintiffs have failed to plausibly allege that Amendment 13 violates the
Contracts Clause.
See Etherton v. City of Rainsville
, No. CV-14-BE-1832-M, 2015
WL 6123213, at *12–13 (N.D. Ala. Oct. 19, 2015) (dismissing Contracts Clause
claim where plaintiffs failed to plausibly allege the challenged law did not serve “a
significant and legitimate public purpose”),
aff’d per curiam
,
D. Substantive Due Process Claim (Count IV)
Plaintiffs claim that Amendment 13 denies their property rights without due
process of law in violation of the Fourteenth Amendment to the U.S. Constitution
and the Constitution of the State of Florida. Am. Compl. ¶ 73. “In the Eleventh
Circuit, an arbitrary or capricious legislative act may provide the basis for a
substantive due process claim, which is called ‘an arbitrary and capricious due
process claim.’ ”
Romero v. Watson
, No. 1:08 CV 217,
As a preliminary matter, this Court finds that Amendment 13 is a “legislative act.” There is no definitive test for determining whether challenged actions are legislative or executive (i.e., nonlegislative). See Kentner , 750 F.3d at 1280. Nevertheless, the Eleventh Circuit has set forth a number of guideposts to assist courts in this determination. See id. Legislative acts most commonly occur in the form of “laws and broad-ranging executive regulations” that “generally apply to a larger segment of—if not all of—society.” Id. (quotation omitted). “A legislative act also involves policy-making rather than mere administrative application of existing policies.” Id. Based on this guidance, Amendment 13 is a legislative act because it applies generally to all citizens of Florida and involves policy-making rather than mere administrative application of existing policies. See id ; 75 Acres, LLC v. Miami- Dade County , 338 F.3d 1288, 1296–97 (11th Cir. 2003). Accordingly, Plaintiffs’ claim falls within an exception to the general rule prohibiting due process claims premised on state-created interests. [16]
“Substantive due process challenges that do not implicate fundamental rights are
reviewed under the ‘rational basis’ standard.”
[17]
Kentner
,
Moreover, that Amendment 13 was enacted by “bypass[ing] public officials who were
deemed not responsive to the concerns of a majority of the voters” is of no consequence because
the voters of Florida were well within their right to “act[] in concert and statewide” to adopt their
preferred policy.
See Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant
Rights & Fight For Equality By Any Means Necessary (BAMN)
,
[17] Florida courts utilize an identical rational basis test to analyze substantive due process
claims under the Florida Constitution.
See Silvio Membreno & Fla. Ass’n of Vendors, Inc. v. City
of Hialeah
,
protected by the U.S. Constitution do not include state-created property interests
such as Plaintiffs’ interests in their pari-mutuel licenses.
See Ford
, 580 F. App’x at
711 (affirming dismissal of plaintiffs’ due process claim because plaintiffs’
allegation that their “rights in their [bingo] licenses” had been “improperly
invalidated” did not plausibly claim a violation of their fundamental rights because
“their purported rights in the bingo licenses were created and defined by state law”);
Avera
,
As previously explained in the context of Plaintiffs’ Equal Protection claim,
a rational basis exists to believe that Amendment 13 would further Florida’s
legitimate interests in regulating pari-mutuel wagering or protecting the health and
welfare of domestic animals.
See Cook v. Bennett
,
V. Conclusion
For these reasons, Defendants’ motion to dismiss is granted. This Court is
concerned about the potential futility of an amended pleading.
See Patel v. Ga. Dep’t
BHDD
,
Accordingly,
IT IS ORDERED :
1. Defendants’ motion to dismiss, ECF No. 33, is GRANTED .
2. Plaintiffs’ claims against the Governor and the Secretary are DISMISSED without prejudice for lack of subject-matter jurisdiction.
3. Plaintiffs’ claims against the Attorney General are DISMISSED without prejudice for failure to state a claim.
4. On or before May 11, 2020 , Plaintiffs shall either (1) file a second amended complaint or (2) file a notice stating their intention not to file a second amended complaint, in which case this Court will enter a final judgment consistent with this Order.
SO ORDERED on April 27, 2020.
s/Mark E. Walker Chief United States District Judge
Notes
[1] A proposal requires approval by 60% of the voters to pass.
See
Fla. Const. art. XI, § 5(e).
This election result is taken from the Florida Department of State website.
See
https://results.elections.myflorida.com/Index.asp?ElectionDate=11/6/2018&DATAMODE= (last
visited April 24, 2020). This Court takes judicial notice of the publicly filed election results, as
they are “capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b)(2);
see Martinez v. Bush
,
[2] While “the Eleventh Amendment is not jurisdictional in the sense that courts must address
it
sua sponte
, [the Eleventh Circuit] h[as] held that Eleventh Amendment immunity sounds in
jurisdiction since it entitles the recipient to bypass the burdens of litigation.”
Curling v. Sec’y of
Ga.
,
[3] Although this Court concludes that Plaintiffs’ claims ultimately fail on the merits, “one
must not ‘confus[e] weakness on the merits with absence of Article III standing.’ ”
Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n
,
[4] Defendants do not specifically challenge Plaintiff Support Working Animals’ (“SWA”)
standing. Although only one named Plaintiff needs to have standing for each claim asserted in the
Amended Complaint,
see Ga. Latino All.
, 691 F.3d at 1258, this Court will address SWA’s
standing for the sake of completeness. To establish “associational standing,” an organization must
establish that “(1) at least one of its members would have standing to bring an individual claim
regarding the challenged practice; (2) the interests that the organization seeks to protect ‘are
germane to the organization’s purpose;’ and (3) individual participation of each injured party is
not indispensable to either the claim brought or the relief sought in the case.”
Alumni Cruises, LLC
v. Carnival Corp.
,
[5] This Court is cognizant that the Florida Legislature did not pass legislation related to Amendment 13 during the 2020 regular session (a bill that would have established a trust fund to compensate persons affected by Amendment 13 died in committee, see S.B. 1316, 2020 Leg., Reg. Sess. (Fla. 2020)). The parties have not suggested—nor is this Court aware—that there has been any indication that the Florida Legislature does not intend to comply with Amendment 13’s requirements. In any case, the Florida Legislature’s inaction does not change the analysis because Amendment 13’s sunset provision in and of itself confers standing. See Fla. ex rel. McCollum , 716 F. Supp. 2d at 1149.
[6] Plaintiffs argue Florida waived its sovereign immunity for federal suits “based on
violations of the state or federal constitution.” Resp. [ECF No. 39] at 7 (citing
Dept’t of Revenue
v. Kuhnlein
,
[7] This Court is troubled by the implications of Defendants’ argument. It would be a peculiar
loophole in American law if the Eleventh Amendment immunized a patently unconstitutional state
law from a constitutional challenge in federal court simply because the law is “self-executing.”
See
ECF No. 33 at 7, 8, 12, 15. If this were the law, states could legislate around
Ex parte Young
’s
protections.
See Curling
,
[8] Indeed, when questioned at oral argument by the Eleventh Circuit panel in a separate case challenging the constitutionality of Florida’s ballot order statute, the Secretary took the position that local officials charged with the clerical task of preparing and printing ballots—rather than the Secretary in her role as Florida’s “chief election officer”—would be proper defendants to a constitutional challenge to that law. Oral Argument at 1:58–6:56, 34:40–36:45, Jacobson v. Fla. Sec’y of State, (Feb. 12, 2020) (No. 19-14552), http://www.ca11.uscourts.gov/oral-argument- recordings?title=&field_oar_case_name_value=jacobson&field_oral_argument_date_value%5B value%5D%5Byear%5D=2020&field_oral_argument_date_value%5Bvalue%5D%5Bmonth%5 D=2. If a local official’s clerical duty to prepare and print ballots suffices to make that official a proper defendant in that case, then surely the Secretary’s clerical duty to classify, number, and furnish copies of Florida’s laws would make her a proper defendant here.
[9] In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc ), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
[10] For ease of exposition, this Court hereinafter refers only to the Fifth Amendment in discussing Plaintiffs’ takings claim; however, these references should be interpreted to mean takings claims under the Fifth and Fourteenth Amendments.
[11] To the extent Plaintiffs assert they possess a constitutionally protected property interest
in the continued operation of their dog-racing businesses, Plaintiffs’ participation in the dog-racing
business is a privilege and is not a legal right. § 550.1625(1), Fla. Stat. (2019) (“The operation of
a dog track and legalized pari-mutuel betting at dog tracks in this state is a privilege . . . .”);
see
State ex rel. Biscayne Kennel Club v. Stein
,
[12] This Court “[is] bound by the Supreme Court’s summary determinations.”
Hand v. Scott
,
[13] On their face, the terms employed by the Supreme Court in
Lucas
indicate that its holding
is indeed limited to regulations affecting land.
See Lucas
,
[14] It is unclear that Plaintiffs have plausibly alleged that other pari-mutuel animal racing industries are “prima facie identical in all relevant respects” to pari-mutuel dog racing. Even on the most basic level, it would seem that dog racing is quite literally a different animal than horse racing. Moreover, Florida has historically treated dog racing and horse racing as “separate and distinct” classes: Petitioner claims that all holders of pari-mutuel permits . . . belong in one large class and as members of such a class they all must, by law, be treated equally in all respects. Historically and traditionally, however, these permittees have been treated differently by the legislature. . . . The conclusion that must be reached . . . is that different classifications exist among the various pari-mutuel permittees. . . . It is to these reasonable classifications between the different types of permittees established by the legislature that the constitutional concepts of due process and equal protection must be applied. . . . Petitioner cannot allege that the statute discriminates against dog tracks [in favor of horse racing tracks] since the dog racing permittees belong to a separate and distinct classification not affected by this legislation. Miami Beach Kennel Club, Inc. v. Bd. of Bus. Regulation of Dep’t of Bus. Regulation , 265 So. 2d 373, 375–76 (Fla. 3d DCA 1972). This Court assumes, without deciding, that stakeholders in other pari-mutuel animal racing industries are similarly situated comparators because, even if they were, Plaintiffs’ Equal Protection claim fails under the rational basis test.
[15] As noted by
LL Liquor, Inc. v. Montana
,
[16] While the Amended Complaint does not explicitly assert a claim for a violation of Plaintiffs’ procedural due process rights, Plaintiffs’ allegations may be read to imply that the enactment of Amendment 13 constituted a procedural due process violation. See Am. Compl. ¶¶ 10–14, 53–57 (alleging, for example, that “Amendment 13 escaped the checks and balances that are traditionally afforded to proposed legislation” via the Constitutional Revision Commission). As Defendants correctly argue, the process by which Amendment 13 was proposed and adopted comported with Florida law. See ECF No. 33 at 39–40. The Eleventh Circuit has repeatedly made clear that the legislative process itself provides all the process constitutionally due to a property