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

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11041
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-00039-SPC-CM
THE INDIGO ROOM, INC.,
RAIMOND AULEN,
DYLAN JONES,
Plaintiffs-Appellants,
versus
CITY OF FORT MYERS,
DOUGLAS BAKER,
FMPD Chief, in his individual capacity,
ALAN GAGNON,
FMPD Officer, Badge No. 299, in his individual capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 16, 2014)
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Before TJOFLAT, ROSENBAUM, and ANDERSON, Circuit Judges.
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 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.
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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 § 6-83 (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
1
“Occupy Fort Myers” was an unincorporated association of individuals who had
gathered in Fort Myers, Florida, to bring visibility to the influence of private money on the
nation’s political process through symbolic, around-the-clock, peaceful protests referred to as
“occupations.” Occupy Fort Myers v. City of Fort Myers, 882 F. Supp. 2d 1320, 1324 (M.D. Fla.
2011).
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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 Sheriff’s 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
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citation for violating the Ordinance. The other individuals in Jones’s group were
over twenty-one and were not cited. Aulen, who also was wearing 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 warrantless 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.
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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
2
A “bona fide restaurant” is an establishment “engaged primarily in the service of food
and nonalcoholic beverages, where the sale or service of alcoholic beverages is incidental to the
sale and service of food and nonalcoholic beverages,” and meets certain criteria. Fort Myers,
Fla., Code § 6-81. A judge later found that the Indigo Room did not qualify as a bona fide
restaurant.
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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. Police visited the Indigo Room during the
event and issued five citations for Ordinance violations. In an email to his
superiors, Gagnon explained that, although twenty to thirty underage people were
present at that event, he issued only five citations to Aulen. Gagnon further opined
that he was “sure you will hear about this sooner than later knowing Aulen.” No
additional “18 and up” events were held after the one on September 27. According
to Aulen, however, officers showed up every Tuesday in October 2011 to ask
patrons for identification.
On January 7, 2012, police officers, including Gagnon, conducted an
inspection of the Indigo Room in conjunction with the Florida State Division of
Alcoholic Beverages and Tobacco. Officers had received information that
underage persons were drinking alcohol and using fake identification at the Indigo
Room. Four underage girls were cited. Aulen was not present on this occasion,
but was issued four citations on January 12, 2012, for the underage girls’ presence
in the Indigo Room on January 7.
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Aulen testified that he had not seen “a lot of activity from the police or code
enforcement prior to my political activity. And then suddenly I was getting visits
from them constantly.” He also described the police presence as “excessive.”
According to Aulen, Gagnon sometimes would inspect the Indigo Room multiple
times on a single night. Baker testified that departmental policy allows an officer
to enter an alcohol-serving establishment more than once in a single night.
According to police department records, officers issued thirty-seven total
citations for Ordinance violations in 2011, six of them to Aulen and one to Jones.
Five of the citations issued to Aulen were given on September 27, 2011 3, and one
was given on November 17, 2011, when Jones received his citation. For
comparison, one other establishment received six citations and two others received
five citations in 2011. In 2012, officers issued twenty-one total citations for
violations of the ordinance. Aulen received six of these citations, four on January
12, 2012, one on April 26, 2012, and one on December 1, 2012. Gagnon
confirmed that other establishments have been cited under the Ordinance and
stated that one other establishment had more citations than the Indigo Room.
Neither Aulen nor the Indigo Room received any citations in 2013.
3
It appears that the citations technically were issued on September 28, 2011, likely early
in the morning, but arose out of Aulen’s third “18 and up” event held on the evening of
September 27. The date September 27 will be used for all citations related to this event.
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Appellants contend that the record supports the inference that Gagnon
conducted an administrative search or inspection of the Indigo Room 88 times
since the fall of 2011. They base their position on the fact that Gagnon testified
that he visited the Indigo Room on “official business” about one hundred times
since 2008 and that he also testified that he conducted around a dozen inspections
of the Indigo Room from 2008 to September 2011. Subtracting the twelve visits
from the 100, Appellants assert that Gagnon testified to inspecting the Indigo
Room 88 times since September 2011.
The district court found that Appellants mischaracterized Gagnon’s
testimony, and that, in context, “visits” for official business was a much broader
category than “searches or inspections.” In this regard, Gagnon prefaced his
answer to the question about how many times he was “at the Indigo Room on
official business” by stating, “I don’t know. It’s a lot of times. I mean, sometimes
they call us to—to be there for something. . . .” In addition, during the same
deposition testimony on which the Appellants relied to argue that Gagnon had
conducted 88 inspections of the Indigo Room, Gagnon actually answered the
specific question, “[F]rom September 1st, 2011, to the present, how many times
have you conducted a warrantless administrative search or inspection at the Indigo
Room, to detect the possible violation of the City’s underage persons ordinance?”
Gagnon responded, “I would say ten.” Thus, the district court determined that,
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when viewed in context, Gagnon’s testimony that he had visited the Indigo Room
100 times included all of the times that he had been at the Indigo Room, including
when he had been there at the Indigo Room’s request.
C. Appellees’ Awareness of Appellants’ Political Activity
Appellants argue that the City was monitoring the political activity at the
Indigo Room, that Baker was actively involved in directing police activity toward
the Indigo Room, and that Gagnon was motivated by animus toward them. We
review the evidence relating to these contentions.
With respect to the City, it appears that some officials within the City
forwarded an email Aulen sent entitled, “More downtown Shootings. Another
black eye for merchants,” which was critical of the police department. It is
unclear to whom Aulen sent the email; he asserts that it was sent to “concerned
citizens.” The forwarded emails contain no negative comments toward Aulen.
The record also contains City Council minutes relating to the anti-
discrimination ballot measure and to the charter-amendment measure to merge the
police department with the Sheriff’s Office. A few of the council members
described the anti-discrimination measure as an attempt to change the City Code
prohibiting persons under twenty-one from entering alcohol-serving
establishments. Finally, in an email dated January 11, 2013, one of the council
members responded to an email from a “concerned Businessowner” complaining
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about Aulen and the Indigo Room. The council member stated that there are
“ongoing issues with the Indigo Room” and that the concerns identified in the
email would be placed on the next City Council agenda.
Baker and Gagnon both testified that they had no knowledge of Aulen’s or
Jones’s political activity with respect to Wake Up, Find a Better Way, or Occupy
Fort Myers, at the time of the supposed retaliatory conduct. According to Baker,
the first time he heard about the petition drive was at the deposition, he had no
knowledge that Aulen was targeted for his political activity, and he did not know
Jones before this case. Communications between Baker and others show that
Baker had been informed of the inspections and citations at the Indigo Room and
numerous other establishments, and that he had directed officers, through a
subordinate, to “[w]rite a citation for EACH underage person[,] [n]ot just a few of
them,” if they “encounter any more issues with Ray or the other clubs.” Baker also
received updates on the Occupy movement. One officer visited the Indigo Room’s
Facebook page, viewed its photo album, and identified underage persons.
Gagnon was listed as one of the recipients of an email on September 25,
2011, that noted that Aulen was involved in the political group Wake Up, which
wanted “to allow 18 and up in the clubs,” and directed the email recipients to “be
careful” enforcing the Ordinance because it would not be surprising if Aulen was
cited and then called to talk to the media about it. Gagnon was not asked about
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this email during his deposition, and the copy contained in the record appears to
have been obtained from another listed recipient, so it is unknown whether or when
Gagnon received or reviewed the email. In emails sent on September 25 and 26,
2011, however, Gagnon requested information about the Indigo Room’s licenses
and occupant capacity, in an apparent attempt to investigate Aulen’s claim that the
Ordinance did not apply to the Indigo Room since he was operating the Indigo
Room a bona fide restaurant, “even though he’s operating as a nightclub.”
Aulen videotaped the police inspection conducted on September 27, 2011.
Soon after, Aulen posted a video, entitled “Human Rights Violated by Police Raid
at Indigo Room Mix Tape Tues 9-27-11,” on YouTube. Gagnon emailed his
supervisor about the video on October 6, 2011, stating:
This libelous statement is directed toward me personally and Aulen’s
associate made sure my name on my shirt was visible as you can see
toward the end of the video. There are civil laws prohibiting such
defamation. Do you think our city legal department should look into
this matter and serve Aulen with a letter or possibly take civil action
against Aulen?
Regarding the proposed merger of the police department with the Sheriff’s
Office, Gagnon testified he first heard about the merger proposal in the summer of
2013. He further stated that he did not know that Aulen was the chairperson of the
group supporting the merger. Gagnon admitted that he believed that the merger
would negatively affect his job.
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II.
Appellants filed a ten-count civil-rights complaint under § 1983. Counts I-
IV were facial challenges to the Ordinance, seeking permanent injunctive relief
against the City. The district court denied Appellants’ motion for a preliminary
injunction with respect to these counts. On appeal, this Court affirmed the denial
of injunctive relief, holding that the Ordinance does not infringe on Appellants’
First Amendment rights and it is not unconstitutionally vague. Indigo Room, Inc.
v. City of Fort Myers, 710 F.3d 1294, 1299-302 (11th Cir. 2013). The district court
subsequently granted unopposed summary judgment in favor of the City with
respect to these counts. That left Counts V-X, which are the subject of this appeal.
Aulen and Jones alleged First Amendment retaliation claims against the City
(Count V), and against Baker (Count VI) and Gagnon (Count IX) in their
individual capacities. Aulen and the Indigo Room alleged violations of the Fourth
Amendment against Baker (Count VII) and Gagnon (Count X) in their individual
capacities. Finally, all plaintiffs alleged First Amendment viewpoint
discrimination against Gagnon in his individual capacity (Count VIII). Baker and
Gagnon raised the defense of qualified immunity.
The district court granted summary judgment in favor of Appellees on the
remaining counts, finding no violation of a constitutional right, and, even if a
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violation occurred, the individual defendants were entitled to qualified immunity.
Appellants bring this appeal, challenging the court’s resolution of Counts V-X.
III.
We review de novo a district court’s grant of summary judgment, applying
the same legal standards that governed the district court. Bradley v. Franklin
Collection Serv., Inc., 739 F.3d 606, 608 (11th Cir. 2014). Summary judgment is
appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
dispute about a material fact is “genuine” “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.”
Id. at 249-50, 106 S. Ct. 2505 (citations omitted).
In making this determination, we consider the record and draw all
reasonable inferences in the light most favorable to Appellants, the non-moving
parties. See Bradley, 739 F.3d at 608; Feliciano v. City of Miami Beach, 707 F.3d
1244, 1247 (11th Cir. 2013). “[W]hen conflicts arise between the facts evidenced
by the parties, we credit the nonmoving party’s version.” Evans v. Stephens, 407
F.3d 1272, 1278 (11th Cir. 2005) (en banc) (emphasis omitted).
IV.
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We first analyze Appellants’ claims against the individual defendants, Baker
and Gagnon. We then turn to Appellants’ claims against the City.
A. Claims Against the Individual Defendants
1. Unreasonable Warrantless Administrative Inspections
Aulen and the Indigo Room argue that summary judgment should have been
entered in their favor on their Fourth Amendment claims that they were subjected
to an excessive number of warrantless inspections. Because there was no
justification for the increased police activity, Appellants assert, the administrative
searches were unreasonable and simply a pretext to harass and intimidate Aulen.
The Fourth Amendment’s prohibition against unreasonable searches applies
to administrative inspections of private commercial businesses. Donovan v.
Dewey, 452 U.S. 594, 598, 101 S. Ct. 2534 (1981). Warrantless administrative
inspections “do not offend the Fourth Amendment if they are necessary in order to
monitor closely regulated businesses for the purpose of learning whether a
particular business is conforming to the statute regulating that business.” Bruce v.
Beary, 498 F.3d 1232, 1239 (11th Cir. 2007). Liquor establishments, including
nightclubs and bars like the Indigo Room, are “closely regulated.” Crosby v.
Paulk, 187 F.3d 1339, 1346-48 (11th Cir. 1999); see Colonnade Catering Corp. v.
United States, 397 U.S. 72, 77, 90 S. Ct. 774 (1970).
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Administrative inspections may be unreasonable if they do not have a
“properly defined scope.” Bruce, 498 F.3d at 1240 (quotation marks omitted).
The primary purpose of the Fourth Amendment in this context “is to protect
citizens from the ‘unbridled discretion [of] executive and administrative officers.’”
Id. (quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 323, 98 S. Ct. 1816 (1978)).
Appellants do not argue that Gagnon had no authority to conduct
administrative inspections of the Indigo Room to ensure compliance with
alcoholic-beverage laws, or that the statute authorizing such searches violates the
Fourth Amendment. See Crosby, 187 F.3d at 1346-48 (concluding that a similar
Georgia statute satisfied the requirements of the Fourth Amendment). Rather, their
argument rests on the contention that the number of searches was excessive and,
therefore, unreasonable. This contention, in turn, is based on the inference
Appellants draw from Gagnon’s testimony that Gagnon conducted 88 inspections
of the Indigo Room between September 2011 and August 2013.
We conclude that the evidence is insufficient to raise a genuine issue of
material fact with respect to the reasonableness of the warrantless inspections
under the Fourth Amendment. We respectfully reject Appellants’ assertion that
Gagnon testified that he searched or inspected the Indigo Room 88 times since
September 2011. At his deposition, Gagnon testified that he visited the Indigo
Room on “official business” about 100 times since 2008, and he specifically stated
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that he had conducted about ten inspections of the Indigo Room since September
2011. Gagnon did not testify that he conducted 100 inspections from September
2008 through 2013. Nor does Aulen point to any other evidence contradicting
Gagnon’s statement that he executed about ten inspections of the Indigo Room
between September 2011 and 2013, other than Aulen’s general description of the
increase in police activity as “huge” or “excessive.” This vague testimony has
little probative value as to the number of inspections actually conducted.
There is similarly no “significantly probative” evidence in the record to
support Appellants’ contention that the inspections were for a purpose other than
learning whether the Indigo Room was conforming to the alcoholic-beverage laws,
including the Ordinance. See Anderson, 477 U.S. at 248, 106 S. Ct. 2505; Bruce,
498 F.3d at 1239-40. The City admitted that the Indigo Room experienced some
additional police activity beginning in September 2011, which Appellants argue
was because of Aulen’s increased political activity. But Aulen himself concedes
that he held three “18 and up” nights at the Indigo Room on Tuesdays in
September in violation of the Ordinance. One such event was held after Gagnon
specifically told Aulen that the events violated the Ordinance and that if he
continued to hold them in the future, he would receive citations for violations.
Then Aulen advised Gagnon that he intended to continue to hold such events in the
future.
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Consistent with the policy of returning to inspect an establishment found in
violation to ensure compliance, officers went to the Indigo Room every Tuesday in
October to check patrons’ identification. Officers also searched the Indigo Room
in January 2012 after receiving information that underage persons were drinking
alcohol and using fake identification at the Indigo Room, and this search turned up
four additional violations of the Ordinance. Thus, despite Appellants’ contentions
on appeal, the City presented evidence of a pattern of violations with respect to
underage persons at the Indigo Room that provided a legitimate basis for the
increased police activity.
We do not find Appellants’ reliance on Bruce persuasive. Bruce favorably
cited a Fourth Circuit case holding that it was unreasonable for officers to perform
over 100 inspections of a particular bar, when there was no evidence in the record
to support the need for such repeated searches. Bruce, 498 F.3d at 1245 (citing
Turner v. Dammon, 848 F.2d 440, 446 (4th Cir. 1988)). First, contrary to
Appellants’ contentions and for the reasons previously discussed, the record in this
case, unlike in the Fourth Circuit case, does not support the notion that Gagnon and
other Fort Myers Police Department officers conducted 100 inspections, or even 88
of them, between September 2011 and 2013. Second, Bruce noted that the record
in the Fourth Circuit case contained only the officers’ “unsubstantiated statements”
in support of the need for the searches. Here, by contrast, the reasonableness of the
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repeated inspections was objectively supported by record evidence. Third, this
Court in Bruce addressed a situation where the defendants’ inspections exceeded
the scope of authority conferred by statute. See Bruce, 498 F.3d at 1248. Here,
Appellants’ challenge is to the frequency of Gagnon’s inspections; they do not
assert that the inspections exceeded the scope of authority granted by Fla. Stat.
§ 562.41.
For these reasons, we affirm the grant of summary judgment on Counts VII
and X.
2. First Amendment Retaliation Claims
Appellants argue that a jury could find that Baker and Gagnon used city
ordinances to harass and intimidate them in retaliation for their political activity.
According to Appellants, both Baker and Gagnon exhibited animus toward Aulen.
To state a First Amendment retaliation claim under § 1983, a plaintiff must
establish the following: (1) his speech or conduct was constitutionally protected;
(2) the retaliatory conduct of the defendant adversely affected the protected speech,
in that the retaliation “would likely deter a person of ordinary firmness” from
engaging in the protected speech; and (3) there is a causal connection between the
retaliatory conduct and the protected speech. O’Bryant v. Finch, 637 F.3d 1207,
1212 (11th Cir. 2011); Bennett v. Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir.
2005).
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The causal-connection inquiry asks whether the defendants were
subjectively motivated to retaliate because the plaintiffs engaged in protected
speech. O’Bryant, 637 F.3d at 1217. Subjective motivation in turn requires that
the defendants had actual knowledge of the plaintiffs’ protected speech, which can
be established by circumstantial evidence. See Brungart v. BellSouth Telecomms.,
Inc., 231 F.3d 791, 798-800 (11th Cir. 2000) (for a retaliation claim under the
Family and Medical Leave Act, the plaintiff generally must show that the decision
maker was aware of the protected conduct at the time of the adverse action).
Circumstantial evidence of temporal proximity alone is insufficient when there is
unrefuted testimony from the defendant that he knew nothing of the protected
conduct. Id. at 799-800.
After a careful examination of the entire record, we conclude that no
reasonable jury could find even circumstantial evidence sufficient to return a
verdict favorable to Jones and Aulen on their retaliation claims.
With respect to Jones, the alleged retaliation complained of—a single
citation for violating an ordinance prohibiting persons under the age of twenty-one
from entering certain alcohol-serving establishments—is insufficient under the
circumstances to “deter a person of ordinary firmness” from engaging in the
protected speech. O’Bryant, 637 F.3d at 1212. We previously have held that the
Ordinance, on its face, does not infringe upon the Appellants’ First Amendment
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rights. Indigo Room, 710 F.3d at 1300. Jones remains free to engage in similar
political speech, but he simply cannot do so in establishments that primarily derive
their sales from alcoholic beverages consumed on the premises—until he reaches
the age of twenty-one. See id.
Moreover, the record evidence is insufficient to support an inference that
Jones’s protected activity—signing the ethics petition and assembling with other
members of Occupy Fort Myers—was a motivating factor behind the citation.
Jones arrived in Fort Myers only a week before he received the citation, and Baker
testified that he had no prior knowledge of Jones, his political activity, or the ethics
petition drive at the Indigo Room. Nor does any evidence in the record tend to
contradict Baker’s assertions in this regard. Therefore, no reasonable jury could
conclude that Baker was subjectively motivated to retaliate against Jones because
he signed the ethics petition. See Brungart, 231 F.3d at 799-800.
As for Gagnon, although he did have actual knowledge that Jones was an
Occupy member, we disagree that the evidence could support an inference that
Jones was targeted for his affiliation with Occupy or the signing of the ethics
petition. First, Gagnon testified that he went to the Indigo Room on routine patrol,
and Appellees have pointed to no evidence in the record to contradict that.
Second, as recounted previously, just a few weeks earlier, Aulen had advised
Gagnon that he intended to continue to host events that welcomed 18-to-20-year-
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old people, in violation of the Ordinance. Third, when Gagnon encountered Jones
coming out of the Indigo Room, a place that the Ordinance required him to be at
least 21 to have entered, Jones admitted that he was underage. Fourth, the officers’
interaction with the members of the group that Jones was with was limited to
checking their identification. Fifth, both Jones and the other persons in his group
all had left the Indigo Room and all had signed the ethics petition, so, presumably,
under Appellants’ reasoning, all of them took the same position that was contrary
to Gagnon’s liking. Yet only Jones, who was the only one under 21 and who, as a
result, was in violation of the Ordinance, was cited for violating a law. Quite
simply, there is nothing about these facts that suggests that Jones was targeted
because of his participation in Occupy or his signing of the ethics petition.
With respect to Aulen’s claims against Baker, Appellants have not identified
any record evidence showing that Baker was aware of Aulen’s political activity
and acted in response to it, either by directing subordinates to engage in unlawful
actions or by failing to stop them from acting unlawfully. See Keating v. City of
Miami, 598 F.3d 753, 764-65 (11th Cir. 2010) (for a supervisor to be liable under
§ 1983, plaintiffs much establish a causal connection between the actions of the
supervising official and the alleged constitutional violation). Baker does not
personally select establishments for administrative searches. And, although Baker
knew of inspections at the Indigo Room and directed officers to issue citations to
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any underage person found in any alcohol-serving establishment, there is no
support for the contention, other than sheer speculation, that Baker knew that the
searches were allegedly conducted in retaliation for protected speech.
Accordingly, the district court properly granted summary judgment in favor of
Baker on Count VI.
Regarding Aulen’s claims against Gagnon, it is a closer question whether a
reasonable jury could infer from the circumstances, taken as a whole, that Aulen’s
political activities were a motivating factor in Gagnon’s decisions to inspect the
Indigo Room and to cite Aulen for violating the Ordinance. The record contains
some evidence supporting Aulen’s contention that Gagnon was motivated to
retaliate against Aulen. Specifically, after Aulen posted to YouTube a video from
the September 27, 2011, inspection, claiming that Gagnon violated human rights
during the “police raid,” Gagnon emailed his supervisor about the possibility of
initiating legal action against Aulen. Yet, aside from that email, there is little, if
any, evidence of a causal connection between Aulen’s political speech and
Gagnon’s conduct.
Nonetheless, even assuming that a reasonable jury could infer that Gagnon
was subjectively motivated to retaliate against Aulen for some of his political
speech, the record is clear that Gagnon would have taken the same actions in the
absence of Aulen’s protected activity. See O’Bryant, 637 F.3d at 1217; Smith v.
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Mosley, 532 F.3d 1270, 1278-79 (11th Cir. 2008). In particular, Gagnon testified
that all alcohol-serving establishments in the downtown area are inspected and that
other owners were cited under the Ordinance.
Indeed, Gagnon’s reports show that he and other officers regularly
conducted compliance reviews of numerous establishments in a single evening.
For example, on September 30, 2011, the Gagnon’s report shows that the officers
contacted ten businesses, none of which were the Indigo Room. Similarly, over a
two-day period from January 12 to 13, 2012, the officers inspected fourteen
businesses, including the Indigo Room. On February 25, 2012, the officers visited
ten businesses to conduct underage checks, including the Indigo Room. Three
days later, on February 28, 2012, the officers “made contact with” fifteen
businesses, none of which included the Indigo Room. On March 16, 2012, they
“made contact with” fourteen businesses, again, none of which included the Indigo
Room. None of this evidence was contradicted by anything else in the record.
Other unrefuted record evidence showed that, in 2011, Aulen was not cited
for Ordinance violations more than other establishments that apparently did not
participate in the same political activities as Aulen. Furthermore, the particular
inspections evidenced in the record—on September 27, 2011, Tuesdays in October
2011, January 7, 2012, April 26, 2012, and December 1, 2012—were linked either
to specific unlawful conduct at the Indigo Room or to planned police operations
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involving multiple alcohol-serving establishments. Consequently, we conclude
that Aulen could not prevail before a reasonable factfinder on his claim of First
Amendment retaliation again Gagnon. We therefore affirm the district court’s
grant of summary judgment in favor of Gagnon as to Count IX.
3. Viewpoint Discrimination
Appellants argue that the district court erred in granting summary judgment
on their claim for First Amendment viewpoint discrimination because, on
November 17, 2011, the police cited only Aulen and Jones, who were both wearing
Occupy t-shirts at the time. We disagree. The Ordinance, on its face, does not
infringe upon the Appellants’ First Amendment rights, and there is no record
evidence supporting an inference that the Ordinance violated Appellants’ rights as
applied in these circumstances. Indigo Room, 710 F.3d at 1300. Accordingly, the
court properly granted summary judgment on Count VIII.
B. Claims Against the City
A local government is liable under § 1983 for its policies and customs that
cause constitutional torts. McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 784,
117 S. Ct. 1734 (1997) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694,
98 S. Ct. 2018 (1978)). Because we have concluded that no constitutional
violation occurred in this case, the City cannot be held liable. To the extent that
the claim against the City alleges constitutional harm apart from what has been
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discussed above, after reviewing the entire record, we find the record evidence
insufficient for a reasonable jury to infer that the City had a policy or custom that
caused, or was the “moving force” behind, the purported constitutional violations.
See City of Oklahoma v. Tuttle, 471 U.S. 808, 819-24, 105 S. Ct. 2427 (1985).
V.
In sum, we hold that the district court properly granted summary judgment
in favor of Appellees on Counts V-X. 4 Accordingly, we affirm the judgment of the
district court.
AFFIRMED.
4
Because we have concluded that no constitutional right was violated, we do not address
the district court’s alternative ruling that the individual defendants would have been entitled to
qualified immunity even if they had violated Appellants’ constitutional rights.
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