Young Apartments, Inc. v. Town of Jupiter, FL

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 5, 2008
No. 07-12076
________________________ THOMAS K. KAHN
CLERK

D.C. Docket No. 05-80765-CV-KLR

YOUNG APARTMENTS, INC.,

Plaintiffs-Appellants,

versus

TOWN OF JUPITER, FL,
ANDREW LUKASIK,
ROBERT LECKY,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 5, 2008)
Before ANDERSON and BARKETT, Circuit Judges, and TRAGER,* District
Judge.

TRAGER, District Judge:

Plaintiffs-appellants Young Apartments, Inc. (“Young Apartments”) appeals

a district court order dismissing several of its equal protection claims under 42

U.S.C. § 1983 (“§ 1983”) against defendants-appellees Town of Jupiter, Florida

(“Jupiter”), Jupiter Town Manager Andrew D. Lukasik (“Lukasik”) and Jupiter

Building Official Robert Lecky (“Lecky”), as well as a breach of contract claim

against Jupiter. Young Apartments claims that Jupiter, through the actions of

town officials including Lukasik and Lecky, is attempting to drive away the

Town’s growing population of Hispanic immigrant residents by targeting the

landlords (including Young Apartments) who provide these residents with

affordable housing. Young Apartments claims that it has suffered significant

financial injury as a result of Jupiter’s discriminatory attempts to eliminate the

affordable housing available to Hispanic immigrants. Young Apartments also

asserts that Jupiter’s condemnation of some of Young Apartments’ housing units

breached the express terms of an agreement negotiated between the parties.

In a ruling on defendants’ motion to dismiss, the district court found that

*
Honorable David G. Trager, United States District Judge for the Eastern District of New
York, sitting by designation.

2
(1) Young Apartments lacked standing to bring a race-based equal protection

claim, so that it could only review the housing ordinance under a rational basis

standard and Young Apartments could only proceed with its selective enforcement

claim under a “class of one” analysis;1 (2) the complaint failed to state a cause of

action against Lukasik and Lecky in their individual capacities; and (3) Young

Apartments could not state a cause of action for breach of contract because a

municipality cannot bargain away its police power.

After careful review, we reverse the district court’s determination that

Young Apartments lacked standing to bring an equal protection claim alleging

discrimination against its Hispanic tenants. We further reverse with respect to the

district court’s determination that Young Apartments only sued Lukasik and

Lecky in their official capacities. Finally, we affirm the district court’s dismissal

of Young Apartments’ breach of contract claim.

1
A “class of one” equal protection claim does not allege discrimination against a
protected class, but alleges that the plaintiff “‘has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.’”
Griffin Indus. v. Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007) (quoting Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000)).

3
 BACKGROUND

(1)

Factual History

Because this case comes to us as an appeal from a motion to dismiss, the

facts alleged in the complaint must be accepted and construed in the light most

favorable to the plaintiff. Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th

Cir. 1998). Accordingly, the following statement of facts is drawn from Young

Apartments’ first amended complaint.

Young Apartments is the owner of an apartment complex in Jupiter, Florida.

The apartment complex is made up of two buildings which have a total of thirty

rental housing units. Young Apartments purchased the property in March 2000

for $1.145 million. At the time, the property was in full compliance with the

Housing Standards Code of Jupiter and the complex was nearly one-hundred

percent rented and occupied. The property was part of an area of Jupiter known as

“Center Street,” with approximately one hundred rental units similar to the ones

owned by Young Apartments.

At the time that Young Apartments purchased the property, Jupiter’s

Hispanic population was increasing, primarily as a result of an influx of immigrant

workers seeking jobs in the construction and labor-intensive sectors of Jupiter.

4
Because of the relatively affordable price of its rental units, Young Apartments’

apartment complex—as well as most of the Center Street area—was occupied

primarily by these Hispanic immigrant workers. Young Apartments estimates that

the immigrant population in Jupiter at the time of its amended complaint consisted

of approximately 3000 people, mostly from Mexico and Guatemala, including 200

to 300 families and a ratio of approximately 70% men to 30% women.

The increasing presence of the Hispanic immigrant population in the Center

Street area was a topic of concern for some of Jupiter’s citizens. Young

Apartments states that some Jupiter citizens believed these immigrant workers

were living and working in their community illegally. Some Jupiter residents also

believed that Hispanic immigrants were hurting the town’s economy by taking

local jobs and using public resources. One Jupiter resident was quoted in national

news reports as claiming that “[t]he landlords here are harboring illegal aliens, and

it’s depressing our property values.”

Young Apartments alleges that Jupiter was especially troubled by the

gathering of these workers around Center Street, where they were picked up by

employers to be transported to their daily jobs. As a result, soon after Young

Apartments purchased the property on Center Street, Jupiter allegedly began

implementing and enforcing policies and practices intended to eliminate the

5
presence of these immigrant workers. One of these policies was to target

landlords, such as Young Apartments, who provided affordable housing to

Hispanic immigrants through a campaign of “excessive and selective” housing

inspections.

Young Apartments alleges that Jupiter adopted Ordinance No. 6-04 (the

“Overcrowding Ordinance” or the “Ordinance”) on May 4, 2004 as part of this

effort to eliminate available and affordable housing for Hispanic immigrant

workers. According to Young Apartments, the discriminatory motive behind this

ostensibly neutral ordinance was clear throughout the enactment process. For

example, Young Apartments quotes participants at a January 2004 meeting of the

of the Jupiter Planning and Zoning Commission as stating that the proposed

Ordinance was intended to eliminate the “problem” posed by “the workers on

Center Street.” Jupiter officials allegedly reassured local residents that a

“complaint-driven” scheme focusing on overcrowding would allow the town to

target only the landlords of Hispanic immigrant tenants for enforcement, without

affecting the rights of other property owners. Jupiter adopted the Ordinance

despite the warning of at least one advocate for the local immigrant population

that an overcrowding measure enforced only against Hispanic residents raised the

specter of potential civil rights violations.

6
 Young Apartments claims that individual defendants Lukasik (Jupiter’s

Town Manager appointed to execute the Town’s policies) and Lecky (Jupiter’s

Building Official in charge of administering the Building and Building Regulation

provisions of the Jupiter Code of Ordinances) both partook in the decision-making

process leading up to the enactment of the Overcrowding Ordinance as well as its

enforcement. The Overcrowding Ordinance adopted in May 2004 requires, among

other things, that no more than five persons occupy any housing unit, unless all

members of the housing unit are related by blood or marriage. The Ordinance also

provides an exemption to the five-person maximum occupancy limitation for

children less than eighteen years old.2

After the May 2004 adoption of the Overcrowding Ordinance, the Jupiter

Town Council continued to discuss the problems posed by immigrant laborers. On

2
The Overcrowding Ordinance is codified in Article VIII of the Jupiter Housing Code at
Sections 21-206, 21-254, and 21-255. Section 21-206, containing the five-person limitation,
provides that “[f]amily is one or more persons occupying a single housekeeping unit and using
common cooking facilities; provided that unless all members are related by blood or marriage, no
such family shall contain over five persons.” Section 21-254 assigns levels of occupants to
square footage levels, setting forth limitations on the number of occupants based on available
space, with an exemption for children under the age of eighteen. Finally, Section 21-255
provides that “[a]n unlawful structure is one found in whole or in part to be occupied by more
persons than permitted under this Code or was erected, altered or occupied contrary to law. Such
structures are deemed unfit for human occupancy and shall be vacated unless the number of
occupants is reduced to meet the requirements of section 21-254. Failure of the owner to comply
will cause the premises to be condemned and utility services terminated to the property pending
compliance with this chapter.” Once a rental property has been condemned, its owner may not
lease that property to tenants until it has been brought into compliance with the Housing Code.

7
October 26, 2004, the Town Council held a workshop to consider the development

of a “day labor center” where employers could meet and arrange jobs with local

workers.3 Opponents of the day labor center reportedly criticized the inadequate

enforcement of the Overcrowding Ordinance and the continued presence of

allegedly undocumented immigrant workers in the Center Street area. Town

officials and citizens at that meeting also questioned whether the Overcrowding

Ordinance had been effective in getting rid of immigrant laborers living in Jupiter.

Lecky and Lukasik, among other Jupiter officials, reportedly responded to such

concerns by pledging to continue code enforcement efforts in the Center Street

area.

Citizen opposition to the presence of Hispanic immigrants continued to be

voiced at subsequent Town Council meetings and elsewhere. Jupiter residents

reportedly complained that these immigrants were living and working in Jupiter

3
Although the fate of the day labor center is not addressed in the record before us, news
reports show that Jupiter later assisted in the development of the El Sol Jupiter Labor Center.
The El Sol Center provides a location for employers to hire workers, in order to keep these
workers from loitering in the Center Street area, and also provides social services to Jupiter’s
Hispanic immigrant community. See, e.g., Pamela Perez, Jupiter Day-Labor Center Dedicated,
Palm Beach Post, June 3, 2006, at 3B. Indeed, although the present litigation involves
allegations that Jupiter discriminated against its Hispanic immigrant residents, the Town has
more recently come under fire from protestors who object to Jupiter’s support for the El Sol
Center and complain that the Town has provided too much assistance to these same immigrant
residents. See, e.g., Dwayne Robinson, Anti-Immigrant Protest Targets Day-Labor Site, Palm
Beach Post, Mar. 2, 2008, at 3C.

8
illegally, and that they were sending their wages back to their home countries

rather than reinvesting their money into Jupiter’s economy. Jupiter allegedly

responded to such complaints by increasing its enforcement of the Overcrowding

Ordinance, in order to put additional pressure on Hispanic immigrants (and their

landlords) to leave the Town.

Young Apartments alleges that audience members at a January 4, 2005

Town Council meeting once again pressed Jupiter officials to use the

Overcrowding Ordinance to “solve the perceived Center Street day laborer

problem.” One week later, in the pre-dawn hours of January 11, 2005, Jupiter

Building Official personnel and Jupiter Police Officers, along with perhaps others,

entered the thirty rental units on Young Apartments’ property without seeking the

consent of Young Apartments and without an inspection warrant, in order to

conduct an inspection for violations of Jupiter’s Overcrowding Ordinance.

As a result of the inspections, Jupiter initiated four separate Code

Enforcement Board cases against Young Apartments. Jupiter cited violations of

the Overcrowding Ordinance as well as physical defects on the property resulting

from hurricane damage in September 2004. Young Apartments claims that it was

already in the process of repairing hurricane damage to the property at the time of

the January 11, 2005 raid. Jupiter initially gave Young Apartments until January

9
21, 2005 to cure all of the defects, a deadline that Young Apartments claims was

“literally impossible” to meet.

Prior to these inspections, in December 2004, Young Apartments had

entered into a contract to sell the property for $3.75 million. A meeting took place

on January 21, 2005 between Jupiter and Young Apartments, at which Lecky was

present. The purpose of the meeting was to discuss the four Code Enforcement

Board cases, which were set to be heard five days later. Knowing that the

apartment complex could be demolished if all the defects were not corrected by

February 18, 2005—a new deadline which had been set by Jupiter in a January 21,

2005 letter to Young Apartments—and having signed a contract to sell the

property for $3.75 million, Young Apartments negotiated an agreement with

Jupiter to avoid demolition of the property. Under the terms of the agreement, or

Agreed Order, Young Apartments conceded its code violations and waived its

right to be heard by the Board. The parties agreed to a three-tier schedule for

repairs, which required Young Apartments to remedy most code violations by

January 28, 2005; to have a remediation plan for mold in place by February 4,

2005; and to complete roof repairs by February 18, 2005. The Agreed Order also

stated that Young Apartments would be assessed fines of $250 per day if the

violations continued after these agreed-upon dates.

10
 Young Apartments met the first two of its repair deadlines, but it was unable

to complete roof repairs made necessary by hurricane damage by February 18,

2005. As a result, on February 24, 2005, after an inspection of the property that

found roof problems, missing dry-wall and exposed wiring, Jupiter condemned

fourteen of the thirty units and ordered that the units be vacated. Young

Apartments claims that Jupiter singled its property out for enforcement, and that

its inability to complete roof repairs in such a short time span was “not surprising,

since hundreds of other properties in Jupiter that had [received] damage from the

Hurricanes during the same time period remained unrepaired as of that time as

well.” Young Apartments states that the condemnation of the fourteen units led its

buyer to cancel the property purchase agreement on March 4, 2005. This

cancelled contract, along with revenue lost from the fourteen vacated units,

resulted in financial loss to Young Apartments. Young Apartments continued to

conduct roof repairs after vacating the apartments, and obtained certificates of

occupancy for all of the units by July 22, 2005.

Young Apartments alleges that Jupiter intended, through its enactment and

enforcement of the Overcrowding Ordinance, to force property owners to sell or

otherwise eliminate the housing available to Hispanic immigrant workers. In

support it cites a subsequent Town Council meeting held on April 5, 2005, where

11
one Jupiter citizen reported that a Center Street landlord was beginning to sell off

property as evidence that the Ordinance was showing signs of success. Jupiter’s

vice-mayor reportedly stated at this meeting that the Overcrowding Ordinance was

working, and that landlords who rented overcrowded housing should be

encouraged to leave town. Young Apartments claims that this meeting, and other

similar town discussions, shows that the true purpose of Jupiter’s code

enforcement effort was to eliminate housing for Hispanic immigrant residents.

Because this appeal comes to us on a motion to dismiss, this version of

events remains one-sided. Future proceedings may show the motives of Jupiter

and its officials to be more balanced than alleged by Young Apartments. A review

of Jupiter Town Council minutes, which were submitted into the district court

record during proceedings subsequent to this motion to dismiss, certainly suggests

that Jupiter’s residents and officials were sharply divided in their opinions about

the issues raised here. But it is not the role of a court of appeals to review such

evidence in the first instance. Primera Iglesia Bautista Hispana of Boca Raton,

Inc. v. Broward County, 450 F.3d 1295, 1306-07 (11th Cir. 2006). We instead

look to the district court to make appropriate findings of fact on remand.

12
 (2)

Procedural History

On August 22, 2005, Young Apartments filed a complaint against Jupiter,

Lukasik, and Lecky. In its seven-count amended complaint filed on November 15,

2005, Young Apartments alleged, inter alia, claims under 42 U.S.C. § 1983 as well

as a claim for breach of the Agreed Order. Four causes of action of the complaint

are against Jupiter while the other three are against Lukasik and Lecky. The

complaint alleges violations of the Fourteenth Amendment against Jupiter for its

enactment and enforcement of the Overcrowding Ordinance (Count I) and the

February 24, 2005 condemnation action (Count VI). The complaint also raises

similar claims under the Fourteenth Amendment against Lukasik and Lecky

(Counts II and V). It also alleges violations of the Fourth Amendment against

Jupiter (Count IV) and Lukasik and Lecky (Count III). Finally, Young Apartment

brought a cause of action for breach of contract against Jupiter (Count VII).

In its Omnibus Order dated January 13, 2006, the district court dismissed

Counts II, III, IV, V, and VII of the amended complaint. The district court granted

Lukasik and Lecky’s motion to dismiss in its entirety, finding that the amended

complaint did not state a cause of action against them in their individual

capacities, thereby dismissing Counts II and IV. The court also dismissed Count

13
III against Lukasik and Lecky because it found that Young Apartments lacked

standing to assert a Fourth Amendment violation. With respect to Jupiter, the

district court dismissed all claims except those related to the selective enforcement

of the Overcrowding Ordinance. The court found that Young Apartments did not

have standing to assert a race-based discrimination claim on behalf of its Hispanic

residents. Because the court concluded that it lacked such standing, it conducted

its analysis under Count I based on differential treatment of a non-suspect

characteristic and concluded that the Overcrowding Ordinance had a rational

basis—to promote sanitation, public health and safety.

With the case proceeding solely against Jupiter, and the only surviving

claim being the selective enforcement of the Ordinance under Counts I and VI, the

court granted summary judgment in favor of Jupiter on March 30, 2007. This

appeal followed. On appeal, Young Apartments does not contest the court’s

granting of summary judgment in favor of Jupiter with respect to the unlawful

condemnation claims of Count VI and the “class of one” selective enforcement

claims of Count I. Furthermore, Young Apartments does not contest dismissal of

its Fourth Amendment claims (Counts III and IV) against both Jupiter as well as

Lukasik and Lecky, nor does it contest the dismissal of its equal protection claim

under Count V against Lukasik and Lecky for the selective condemnation of its

14
property. Thus, the only issues on appeal relate to the district court’s

determinations that (1) Young Apartments lacked standing to bring a race-based

discrimination claim against Jupiter under Count I, (2) Young Apartments’ failure

to state a cause of action against Lukasik and Lecky in their individual capacities

under Count II and (3) its breach of contract claim against Jupiter under Count

VII.

DISCUSSION

(1)

Standard of Review

We review an order granting a motion to dismiss with prejudice de novo,

applying the same standards the district court used. Hoffman-Pugh v. Ramsey,

312 F.3d 1222, 1225 (11th Cir. 2002). All of the factual allegations in the

complaint must be accepted and construed in the light most favorable to the

plaintiff. Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1998). A

motion to dismiss does not test the merits of a case, but only requires that “the

plaintiff’s factual allegations, when assumed to be true, ‘must be enough to raise a

right to relief above the speculative level.’” Mills v. Foremost Ins. Co., 511 F.3d

1300, 1303 (11th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, ___U.S. ___,

127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007)).

15
 (2)

Count I: Young Apartments Has Standing to Challenge the
Overcrowding Ordinance as Discriminatory.

Young Apartments’ first cause of action claims that Jupiter violated the

Equal Protection Clause of the Fourteenth Amendment by enacting the

Overcrowding Ordinance and then enforcing it only against properties that housed

Hispanic immigrant tenants. The district court divided these allegations into an

“enactment” claim and an “enforcement” claim. The court held that Young

Apartments did not have standing to challenge Jupiter’s actions as racially

discriminatory for either of these claims, because “a non-Hispanic landlord lacks

standing to bring a race discrimination claim on behalf of its Hispanic residents.”

(D. Ct. Op. at 7.) Therefore, the court found that Young Apartments could not

challenge the enactment of the ordinance on the basis of a suspect classification,

and instead scrutinized the ordinance under a rational basis standard of review.

The court upheld the ordinance as valid under this rational basis review, and

dismissed the enactment claim. Because Young alleged that other similarly-

situated landlords were not targeted for enforcement, the court allowed Young’s

selective enforcement claim to move forward under a “class of one” analysis.

Young Apartments is currently only challenging the district court’s denial of

16
standing to challenge Jupiter’s actions as racially discriminatory, and not the

subsequent summary judgment ruling in which the district court found that Young

Apartments could not prevail on its selective enforcement claim.

The analytical framework for resolving standing issues requires

consideration of both “constitutional” and “prudential” requirements for standing.

Warth v. Seldin, 422 U.S. 490, 498-99 (1975); Harris v. Evans, 20 F.3d 1118,

1121 (11th Cir. 1994) (en banc). “The constitutional requirements derive from

Article III’s limitation of federal jurisdiction to situations where a justiciable ‘case

or controversy’ exists between the litigants.” Harris, 20 F.3d at 1121 (citing

Warth, 422 U.S. at 498). The Eleventh Circuit has explained that to meet the

requirements of Article III, “the plaintiff must show: (1) that he has suffered an

actual or threatened injury, (2) that the injury is fairly traceable to the challenged

conduct of the defendant, and (3) that the injury is likely to be redressed by a

favorable ruling.” Id. (citing Saladin v. Milledgeville, 812 F.2d 687, 690 (11th

Cir. 1987)). If a plaintiff cannot satisfy these constitutional standing requirements,

the case lies outside the authority given to the federal courts by Article III and

must be dismissed. Id.

At the initial pleading stage, a plaintiff may establish standing based on

general factual allegations of injury. Miccosukee Tribe of Indians v. S.

17
Everglades Restoration Alliance, 304 F.3d 1076, 1080 (11th Cir. 2002). Because

this issue reaches us on a motion to dismiss, we must presume that a plaintiff’s

allegations are sufficient to establish the facts alleged. Id. Under this standard of

review, there is no dispute that Young Apartments’ allegations fulfill all three of

these constitutional requirements. Young Apartments has suffered a financial

injury based on lost rent and the lost sale of its property. It claims that this injury

was caused by Jupiter’s enactment of the Overcrowding Ordinance and the

Town’s subsequent enforcement measures.4 Young Apartments’ injury would be

remedied by the proposed damages and injunctive relief, which would compensate

Young Apartments for the loss in its property’s value and prevent future unlawful

4
Jupiter argues on appeal that Young Apartments’ financial loss was not actually caused
by the Overcrowding Ordinance. In support, Jupiter notes that all of Young Apartments’
overcrowding violations were cleared up within days of the raid. Jupiter thus argues that any
financial losses suffered by Young Apartments were solely caused by its failure to perform
necessary repairs in a timely manner. Young Apartments responds that Jupiter’s raid to inspect
for overcrowding violations, in and of itself, was a cause of its financial losses. Young
Apartments also argues that Jupiter threatened to demolish its property if it did not perform all of
its hurricane-related repairs within an impossibly short amount of time. Construing these
allegations in favor of plaintiff, as we must at this stage, it is possible that Jupiter’s pre-dawn raid
could injure Young Apartments as part of a concerted selective enforcement campaign intended
to drive away its Hispanic immigrant tenants.
We do not comment on the merits of either side’s assertions here. This matter comes to
us on a motion to dismiss. Accordingly, this panel must decline the invitation to weigh the
evidence for such arguments. The necessary findings of fact – about the enactment of the
Overcrowding Ordinance and whether it was a cause of Young Apartments’ injuries – must be
addressed by the district court in the first instance. See Primera Iglesia Bautista Hispana, 450
F.3d at 1306-07.

18
enforcement actions. Accordingly, the amended complaint fulfills the

constitutional requirements for standing.

In addition to the constitutional requirements of Article III, the Supreme

Court has also instructed courts to consider three prudential principles when

weighing whether judicial restraint requires the dismissal of a party’s claims.

Warth, 422 U.S. at 499-500; Bischoff v. Osceola County, 222 F.3d 874, 883 (11th

Cir. 2000). The Eleventh Circuit has summarized these prudential considerations

as:

1) whether the plaintiff’s complaint falls within the zone of interests
protected by the statute or constitutional provision at issue;
2) whether the complaint raises abstract questions amounting to
generalized grievances which are more appropriately resolved by the
legislative branches; and 3) whether the plaintiff is asserting his or
her own legal rights and interests rather than the legal rights and
interests of third parties.

Harris, 20 F.3d at 1121 (quoting Saladin, 812 F.2d at 690).

The district court found that Young Apartments lacked “standing to

complain of the alleged racial or ethnic discrimination by” Jupiter, because it

believed that “a non-Hispanic landlord lacks standing to bring a race

discrimination claim on behalf of its Hispanic residents.” (D. Ct. Op. at 6-7.) This

ruling, however, is erroneous for two reasons. First, this ruling ignores that

Young Apartments is suing Jupiter to remedy its own mistreatment, which it

19
claims resulted from Jupiter’s discriminatory targeting of its Hispanic tenants.

Accordingly, Young Apartments has standing under § 1983 to vindicate its own

rights, which are distinct from the rights of its Hispanic tenants. Second, to the

extent that Young Apartments is raising claims that implicate the rights of its

Hispanic tenants, the district court wrongly concluded that prudential

considerations should prevent Young Apartments from bringing such claims.

i. Young Apartments Has Standing Based on Its Own Injury.

Young Apartments’ first cause of action alleges that Jupiter enacted and

enforced the Overcrowding Ordinance in order to harass landlords who provide

affordable housing to Hispanic immigrants in the Center Street area. Although

Jupiter’s alleged animosity toward its Hispanic residents is at the heart of this

claim, Young Apartments seeks to remedy its own injury. Courts have routinely

found that a business has standing to bring § 1983 claims against state officials

who are harming its business by discriminating against its customers. This rule of

law is based on the uncontroversial principle that it is unconstitutional for a state

actor, motivated by discriminatory animus, to interfere with an individual’s right

to contract or associate with members of a protected class. See Adickes v. Kress

& Co., 398 U.S. 144, 151-52 (1970); Sullivan v. Little Hunting Park, Inc., 396

U.S. 229, 237 (1969).

20
 This Court’s ruling in Baytree of Inverrary Realty Partners v. City of

Lauderhill, 873 F.2d 1407 (11th Cir. 1989), illustrates this principle. Plaintiff

Baytree, a real estate developer, claimed that the defendant city had refused to

amend its zoning ordinance in order to prevent Baytree from developing low-

income housing. Baytree filed a civil rights suit against the city which alleged that

the zoning decision was racially discriminatory. This Court found that Baytree

had standing to make this claim based on its own injury, in language that is well

suited to the current case:

The defendants argue that there is no standing in this case, however,
because of the so-called “prudential” limitations. These prudential
principles recognize, inter alia, that even a plaintiff who has satisfied
the Article III requirements must still assert his own legal rights and
interests, and not those of third parties. [See Valley Forge Christian
College v. Americans United for Separation of Church and State, 454
U.S. 464, 474-75, 102 S. Ct. 752, 759-60 (1982).] The district court
held that Baytree, a non-minority developer, had no standing because
it was asserting the rights of hypothetical third persons. Whether
non-minority developers have standing to pursue civil rights claims
which allege that a local government’s zoning decisions have a
discriminatory adverse effect on racial minorities is an issue left open
by the Supreme Court. [See Village of Arlington Heights v.
Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263-64 & n.9, 97 S. Ct.
555, 562-63 & n. 9 (1977).] That, however, is not the case here, for
Baytree argues its own injury from zoning decisions which are
motivated by racial animus, not the injury that would be incurred by
prospective tenants.

21
Baytree, 873 F.2d at 1408-09. Similarly, Young Apartments has standing to allege

that it was injured by Jupiter’s discriminatory actions, regardless of whether such

claims might also vindicate the rights of its immigrant tenants.

Other courts have similarly found that a non-minority plaintiff has standing

to allege that it was injured by defendants’ discriminatory animus toward third

parties. The non-minority plaintiff’s own injury is sufficient to confer standing,

separate from the question of whether the non-minority plaintiff also has standing

to vindicate the rights of third parties. See Scott v. Greenville County, 716 F.2d

1409, 1415 (4th Cir. 1983) (concluding that non-minority housing developer had

standing to make an equal protection claim under § 1983, because “if defendants

singled out [plaintiff] for disadvantageous treatment because of his willingness to

house minority tenants, then [plaintiff] in his own stead suffered injury to his right

to be free from official discrimination”); Des Vergnes v. Seekonk Water Dist., 601

F.2d 9, 17 (1st Cir. 1979), vacated on other grounds, 454 U.S. 807 (1981) (finding

that real estate corporation has standing under § 1983 to allege that state municipal

corporation discriminated against it for its willingness to sell housing to low-

income and minority families); Pagliuco v. City of Bridgeport, No. 3:01-CV-836,

2005 U.S. Dist. LEXIS 33738, at *16-17 (D. Conn. Dec. 13, 2005) (finding that

club owners have standing to bring equal protection claims under § 1983 alleging

22
they were singled out for enforcement because of their African-American

clientele; explaining that prudential bar against third-party standing is not relevant

because “[p]laintiffs are not attempting to vindicate the rights of their clientele.

They are asserting their own right to be free from unequal enforcement of the laws

based on discriminatory criteria - namely the race of their patrons.”); Hallmark

Developers, Inc. v. Fulton County, No. 1:02-cv-01862-ODE, 2004 U.S. Dist.

LEXIS 30616, at *51 (N.D. Ga. Sept. 27, 2004) (finding that plaintiff housing

developers “have Article III standing to vindicate, at a minimum, their own rights”

under § 1983 based on allegations that discriminatory zoning decisions prevented

development of housing for low-income and minority residents); Pisello v. Town

of Brookhaven, 933 F. Supp. 202, 212 (E.D.N.Y. 1996) (finding that management

company had standing to maintain equal protection claims under § 1983 where

plaintiff alleged it was singled out for enforcement actions due to its efforts to

place minority tenants in local rental housing); Puglisi v. Underhill Park Taxpayer

Assoc., 947 F. Supp. 673, 689 (S.D.N.Y. 1996) (finding that non-minority

landlord had standing to vindicate his own rights under § 1983 based on

23
allegations that he was targeted for enforcement in effort to drive out his African-

American tenants).5 As the First Circuit explained in the Des Vergnes case:

[A] State may not punish a non-white for having social contacts with
a black. Likewise it may not through one of its creatures, punish or
discriminate against a corporation for its willingness, past or present,
to make contracts with blacks. And if it does so, then the person so
punished or discriminated against has a § 1983 right of action.

Des Vergnes, 601 F.2d at 17 (citations omitted). Because Young Apartments

alleges that it was directly injured by Jupiter’s enactment and enforcement of the

Overcrowding Ordinance, it has standing – on its own behalf – to challenge the

allegedly discriminatory nature of Jupiter’s actions.

ii. Prudential Principles of Standing Do Not Bar Young Apartments’
Claims.

Prudential principles of third-party standing also present no bar to Young

Apartments’ standing in this case. These prudential principles “are not

constitutionally mandated, but rather stem from a salutary ‘rule of self-restraint’

designed to minimize unwarranted intervention into controversies where the

5
The district court wrongly cited Puglisi, 947 F. Supp. at 692, as holding that a “non-
minority landlord lacked standing to bring race discrimination action against local residents and
municipal officials who allegedly attempted to force landlord to evict minority tenants and
engaged in selective enforcement of ordinances, housing codes, and fire and zoning regulations.”
(D. Ct. Op. at 7.) Puglisi in fact found that a landlord did have standing to bring such claims
under § 1983. Puglisi, 947 F. Supp. at 689. The section selectively cited by the district court
only found that the landlord did not have standing to bring such claims under 42 U.S.C.
§ 1985(3), which the Puglisi court said had never been extended to apply to a plaintiff who was
not a member of the class protected by the statute. 947 F. Supp. at 692.

24
applicable questions are ill defined and speculative.” Craig v. Boren, 429 U.S.

190, 193 (1976). In an ordinary case, a plaintiff is denied standing to assert the

rights of third parties. Warth v. Seldin, 422 U.S. 490, 499 (1975). One exception

to this rule, however, allows businesses to advocate, on behalf of their clients and

customers, against discriminatory actions that interfere with that business

relationship. See Craig, 429 U.S. at 195 (“[V]endors and those in like positions

have been uniformly permitted to resist efforts at restricting their operations by

acting as advocates of the rights of third parties who seek access to their market or

function.”). This exception applies to the current case.

In order to bring claims on behalf of third parties, a litigant must satisfy

three important criteria.

[T]he litigant must have suffered an “injury-in-fact,” thus giving him
or her a “sufficiently concrete interest” in the outcome of the issue in
dispute; the litigant must have a close relation to the third party; and
there must exist some hindrance to the third party’s ability to protect
his or her own interests.

Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir. 1994) (quoting Powers v. Ohio,

499 U.S. 400, 411 (1991) (citations omitted)). All three of these criteria are met in

the current case.

First, as already noted, Young Apartments has sufficiently alleged that it has

a concrete interest in the outcome of this dispute. Young Apartments’ pursuit of

25
economic damages is sufficient to ensure that it would be an effective advocate in

this dispute. See Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208,

1212-13 (8th Cir. 1972). This prong weighs particularly strongly in favor of

standing for Young Apartments, because it claims an economic injury (for the loss

in value of its housing property) that would not be remedied in a suit brought by

the immigrant tenants themselves. See Puglisi, 947 F. Supp. at 688.

Second, the interests of Young Apartments and its tenants are sufficiently

aligned to ensure that Young Apartments will properly frame the issues in this

dispute. See Harris, 20 F.3d at 1123. The district court found that Young

Apartments had no standing because its interests were not “intimately close” to the

interests of its tenants. (D. Ct. Op. at 7 n.4.) But this test is overly strict. The

appropriate question is whether the identity of interests between plaintiff and the

third party are “sufficiently close.” As another circuit court has stated, “[t]hough,

generally speaking, the right to equal protection is a personal right of individuals,

this is ‘only a rule of practice,’ which will not be followed where the identity of

interest between the party asserting the right and the party in whose favor the right

directly exists is sufficiently close.” Brewer v. Hoxie Sch. Dist. No. 46, 238 F.2d

91, 104 (8th Cir. 1956) (emphasis added & internal citations omitted).

26
 The district court adopted the “intimately close” test from Clifton Terrace

Assocs., Ltd. v. United Tech. Corp., 929 F.2d 714, 721 (D.C. Cir. 1991), which in

turn was quoting Park View Heights, 467 F.2d at 1213-14. But the Park View

Heights case explicitly states that the applicable test is whether the interests are

“sufficiently close,” not “intimately close.” The Eighth Circuit, in the passage at

issue, found that plaintiff affordable housing developers had standing to raise

discrimination claims on behalf of their prospective tenants, because the identity

of interests between these parties “is not only sufficiently close, so as to satisfy the

Brewer test, but intimately close.” Id. at 1214 (emphasis in original). The court

was simply stating that the alignment of interests in that case went beyond what

was required in order for the plaintiff to have standing to bring a racial

discrimination claim on behalf of minorities. Nowhere did it adopt an “intimately

close” test.6

6
Additionally we note that Clifton Terrace, which was relied on by the district court for
its standing ruling, is factually distinguishable from this case. While the case was similar in that
an owner of a low-income housing complex sought to sue on behalf of its African-American
residents, no claim was brought under § 1983. The court found that the owner lacked standing to
sue under 42 U.S.C. § 1981 and § 1982.
Based on the allegations currently before us, the standing questions raised by these cases
also differ on the merits. The D.C. Circuit concluded that Clifton Terrace and its tenants had
diverging interests, so that the landlord could not be trusted to be an appropriate advocate for the
rights of its tenants. Clifton Terrace, 929 F.2d at 721. In contrast, we have found that the
interests of landlord and tenant are sufficiently aligned to permit standing in this case. The D.C.
Circuit also found that “[t]he fact that the tenants could have brought their own action . . . argues
against allowing Clifton to assert their rights as a third party.” Id. While this is a relevant factor,
as explained below, we find that the tenants in the current case may be hindered from asserting

27
 In finding that Young Apartments’ interests are sufficiently aligned with its

tenants, we acknowledge that the interests of this landlord and its tenants are not

identical. Indeed, we find some merit in Jupiter’s warning that a landlord should

not be permitted to attack a town housing ordinance on behalf of its tenants, when

such ordinances are generally intended to protect the health and safety of tenants

against unscrupulous landlords. However, the facts alleged in Young Apartments’

complaint, if accurate, paint a scenario in which both the Hispanic immigrant

tenants and their landlords were targeted by Jupiter officials, through a single

course of conduct intended to drive the tenants out of town and the landlords out

of business. Moreover, because Jupiter is allegedly targeting Hispanic immigrants

by taking measures against their landlords, it would be difficult (if not impossible)

for Young Apartments to vindicate its own rights fully without implicating the

rights of its tenants. Accordingly, the facts as alleged depict a sufficiently close

relationship between Young Apartments and its tenants to ensure that Young

their own rights in court, so that this also should not prevent Young Apartments from having
standing to bring its claims.

28
Apartments will be a zealous advocate of the legal rights at issue in the suit.7 See

Park View Heights, 467 F.2d at 1213.

Third, Young Apartments is an appropriate plaintiff because of the

likelihood that its tenants would be hindered from asserting their own rights in this

case. Here, the district court erred by only asking whether these tenants are

“plainly identifiable.” (D. Ct. Op. at 7 n.4.) While the inability to identify

appropriate minority plaintiffs is one reason to grant third-party standing in a civil

rights case, it is not the only reason. See Puglisi, 947 F. Supp. at 687-88 (finding

that third-party standing is not limited to cases where appropriate minority

plaintiffs are not readily identifiable). A court’s inquiry into whether or not a

minority plaintiff is readily identifiable is part of a larger inquiry into whether the

existing plaintiff is “uniquely positioned” to vindicate the rights of the third-party

minorities in question. See Doe v. Village of Mamaroneck, 462 F. Supp. 2d 520,

547 (S.D.N.Y. 2006). The court must also ask whether it “would be difficult if not

7
In so concluding, we do not intend to endorse a general rule that a landlord always has
standing to represent the interests of its tenants. But the district court has made no findings of
fact regarding the relationship between Young Apartments and its tenants that would contradict
the allegations in the amended complaint. Jupiter argues that Young Apartments (like the
landlord in the Clifton Terrace case decided by the D.C. Circuit) is actually in an adversarial
position to its tenants due to its violations of the town building code. Cf. Clifton Terrace, 929
F.2d at 721 (denying standing where landlord’s “interests in the subject of this suit to some
extent conflict with those of the tenants whose rights it purports to advance”). This issue,
however, requires a fact-specific inquiry that must be addressed by the district court in the first
instance.

29
impossible for the persons whose rights are asserted to present their grievance

before any court.” Barrows v. Jackson, 346 U.S. 249, 257 (1953). If that is the

case, then “the reasons which underlie our rule denying standing to raise another’s

rights, which is only a rule of practice, are outweighed by the need to protect the

fundamental rights which would be denied” otherwise. Id.

In this case, Young Apartments is uniquely positioned to assert claims on

behalf of its Hispanic residents. Young Apartments is subject to enforcement

under the Overcrowding Ordinance, and claims to have suffered significant

financial injury under that ordinance, so that it has strong incentives to pursue this

lawsuit. It has shown that it is willing and able to pursue this claim in court. By

contrast, according to the allegations in the complaint, its Hispanic tenants face

hostility from the residents of Jupiter and may be reluctant to raise such claims for

fear of provoking additional policing measures. It is also reasonable to presume

that some of the immigrants living in Jupiter may fear drawing attention to the

immigration status of themselves or their neighbors, and that Young Apartments’

immigrant tenants could fear that a lawsuit against Jupiter would invite other legal

risks. Under such circumstances, Young Apartments stands in a unique position

to vindicate its tenants’ rights.

30
 In short, Young Apartments alleges that Jupiter adopted the Overcrowding

Ordinance in order to reduce the amount of housing available to Hispanic

immigrant workers in Jupiter. It contends that its property was specifically

targeted by Jupiter officials because it provided affordable housing to these

Hispanic immigrant workers. Taking Young Apartment’s allegations to be true,

there is a sufficient nexus of interests to establish that Young Apartments will be a

zealous advocate of the rights at issue in this suit. Moreover, denying Young

Apartment standing to raise these claims would unfairly limit its ability to

vindicate its own right to be free from official misconduct. Therefore, Young

Apartments is uniquely positioned, and should have standing, to bring a

discrimination claim on behalf of its Hispanic immigrant tenants.

In reaching these conclusions, we do not offer any judgments about the

merits of Young Apartments’ allegations. But a standing ruling at the motion to

dismiss stage should only address the sufficiency of the allegations in a complaint,

not their merits. Miccosukee Tribe of Indians v. S. Everglades Restoration

Alliance, 304 F.3d 1076, 1080 (11th Cir. 2002). Accepting the facts in Young

Apartments’ complaint, as we must, Young Apartments has standing to pursue

these discrimination claims against Jupiter.

31
 iii. Young Apartments’ Claims are Subject to Strict Scrutiny on Remand.

Because the district court believed that Young could not challenge the

Overcrowding Ordinance on the basis of a suspect classification, the district court

reviewed the ordinance under the rational basis test of Haves v. City of Miami, 52

F.3d 918, 921 (11th Cir. 1995). However, because Young Apartments has

standing to attack this ordinance as racially discriminatory, a stricter standard of

review is appropriate. As we have previously stated, “[a] facially-neutral law

violates the Equal Protection Clause if adopted with the intent to discriminate

against a racial group.” Johnson v. Governor of Florida, 405 F.3d 1214, 1222

(2005) (en banc) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)).

Johnson provides the appropriate legal framework for claims that a facially neutral

statute was enacted to further unlawful discrimination: such a law is

unconstitutional if (1) “discrimination was a substantial or motivating factor” in

the government’s enactment of the law, and (2) the government cannot rebut that

claim by showing “that the provision would have been enacted in the absence of

any racially discriminatory motive.” Johnson, 405 F.3d at 1223 (citing Hunter v.

Underwood, 471 U.S. 222, 227-28 (1985)).

Determining whether invidious discriminatory purpose was a motivating

factor in adopting a statute or ordinance demands a sensitive inquiry into such

32
circumstantial and direct evidence of intent as may be available. Village of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). The

impact of the official action—that is, whether it bears more heavily on one race

than another—may provide an important starting point. Id. However, unless there

is a clear pattern that the action is impacting one race more than another, impact

alone is not determinative, and courts must look to other evidence such as the

historical background behind the state’s action and the specific sequence of events

in the state’s decision-making process. Id. at 266-68. If Young Apartments is

able to show that racial discrimination was a substantial or motivating factor in

enacting the Overcrowding Ordinance, based on such evidence, then the burden

would shift to Jupiter to demonstrate that the provision would have been enacted

in the absence of any racially discriminatory motive.

A more difficult question is raised by the impact of our standing decision on

Young Apartments’ unequal enforcement claims. Jupiter argues that the unequal

enforcement claim has already been fully decided, because the district court

granted Jupiter summary judgment on this issue and Young Apartments failed to

appeal that ruling. The district court applied a “class of one” analysis to Young

Apartments’ unequal enforcement claims, which excluded any consideration of

discrimination based on a suspect classification. Under the “class of one”

33
analysis, “Plaintiffs must show (1) that they were treated differently from other

similarly situated individuals, and (2) that Defendant unequally applied a facially

neutral ordinance for the purpose of discriminating against Plaintiffs.” Campbell

v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006) (citing Strickland v.

Alderman, 74 F.3d 260, 264 (11th Cir. 1996)). Jupiter correctly observes that a

plaintiff must satisfy the “similarly situated” prong of this test, whether or not its

discrimination claim is based on a suspect classification. See Griffin Indus. v.

Irvin, 496 F.3d 1189, 1204-05 (11th Cir. 2007) (finding that the same strict

“similarly situated” standard applies whether an equal protection claim is brought

under a “class of one” theory or a traditional theory of unlawful discrimination);

Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006)

(explaining in context of habeas ruling that “[t]o establish an equal protection

claim, a prisoner must demonstrate that (1) he is similarly situated to other

prisoners who received more favorable treatment; and (2) the state engaged in

invidious discrimination against him based on race, religion, national origin, or

some other constitutionally protected basis”); Hollywood Cmty. Synagogue, Inc.

v. City of Hollywood, 430 F. Supp. 2d 1296, 1322 (S.D. Fla. 2006) (applying the

two-part test from Campbell where synagogue claimed it was being targeted for

selective code enforcement because of anti-religious bias). Therefore, Jupiter is

34
correct that Young Apartments must show disparate treatment compared to a

similarly situated party, whether it is alleging discrimination based on a suspect

classification or under a “class of one” theory.

Nonetheless, Young Apartments claims that it was unable to introduce

relevant evidence concerning Jupiter’s discriminatory motives. It also claims that

the district court’s analysis failed to examine fully whether Young Apartments was

treated differently compared to landlords of non-Hispanic tenants. Because the

summary judgment order was not appealed, and the district court’s ruling that

Young Apartments could not prove discrimination compared to similarly situated

parties is not before us, we do not address the merits of these arguments.

However, it does appear that the district court’s subsequent summary judgment

order was affected by its erroneous ruling on standing, and that the district court

may have wrongly refused to consider any evidence of discrimination against

Jupiter’s Hispanic immigrants. See Young Apartments, Inc. v. Town of Jupiter,

No. 05-80765-CIV, 2007 U.S. Dist. LEXIS 24073, at *13-14 (S.D. Fla. March 30,

2007) (“Plaintiffs do not have standing to complain of the alleged racial or ethnic

discrimination by Defendant. Thus, Plaintiffs can only bring this action because

of differential treatment based on a non-suspect characteristic, such as the

proximity of the properties to Center Street.”). Therefore, Young Apartments may

35
raise its unequal enforcement claims anew on remand, but only insofar as it can

establish these claims based on evidence of discrimination that it was unable to

adduce because of the district court’s erroneous narrowing of the relevant issues.

Young Apartments may not press forward with any selective enforcement claims

that merely duplicate its failed “class of one” unequal enforcement challenge.8

(3)

Count II: Lukasik and Lecky Had Notice They Were Being
Sued in Their Individual Capacities.

The district court, in its January 13, 2006 ruling on the motions to dismiss,

found that Young Apartments’ complaint did not clearly specify whether Lukasik

and Lecky were being sued in their official or individual capacities. The court

decided that the individual defendants were being sued in their official capacity,

because the complaint alleged that they engaged in discrimination while taking

actions within the scope of their official duties. The court then concluded that the

claims against the individual defendants should be dismissed as redundant,

8
We also note that the district court’s summary judgment ruling applied a rational basis
standard to the second prong of the Campbell test, which asks whether “[d]efendant unequally
applied a facially neutral ordinance for the purpose of discriminating against [plaintiff].”
Campbell, 434 F.3d at 1314. If Young Apartments is able to reassert its unequal enforcement
claims by offering new evidence of disparate treatment vis-a-vis the landlords of non-Hispanic
tenants, then strict scrutiny of Jupiter’s motivations would, of course, apply. See Pisello v.
Town of Brookhaven, 933 F. Supp. 202, 212 (E.D.N.Y. 1996) (explaining that where a claim
“addresses selective treatment based on the plaintiff’s business dealings with his minority
clientele,” that claim is entitled to “strict scrutiny rather than rational basis analysis”).

36
because Jupiter was already named as a defendant for essentially identical claims.

On appeal, Young Apartments only raises one of its claims against the individual

defendants, for “Unlawful Application and Enforcement of Ordinance No. 6-04.”

Young Apartments argues that the district court misconstrued the complaint, and

that this claim was made against Lukasik and Lecky in their individual capacities.

As explained below, Young Apartments is correct.

The main concern of a court in determining whether a plaintiff is suing

defendants in their official or individual capacity is to ensure the defendants in

question receive sufficient notice with respect to the capacity in which they are

being sued. In general, plaintiffs have a duty to “make plain who they are suing

and to do so well before trial.” Colvin v. McDougall, 62 F.3d 1316, 1318 (11th

Cir. 1995). However, plaintiffs are not required to designate with specific words

in the pleadings that they are bringing a claim against defendants in their

individual or official capacities, or both. Hobbs v. Roberts, 999 F.2d 1526, 1529-

30 (11th Cir. 1993). “When it is not clear in which capacity the defendants are

sued, the course of proceedings typically indicates the nature of the liability sought

to be imposed.” Jackson v. Georgia Dep’t of Trans., 16 F.3d 1573, 1575 (11th

Cir. 1994). Thus, while it is “clearly preferable” that a plaintiff state explicitly in

what capacity defendants are being sued, “failure to do so is not fatal if the course

37
of proceedings otherwise indicates that the defendant received sufficient notice.”

Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001).

In looking at the course of proceedings, courts consider such factors as the

nature of plaintiff’s claims, requests for compensatory or punitive damages, and

the nature of any defenses raised in response to the complaint, particularly claims

of qualified immunity which serve as an indicator that the defendant had actual

knowledge of the potential for individual liability. Id. at 772 n.1. In examining

the course of proceedings in this case, we are persuaded that Young Apartments

raised claims against the individual defendants in their personal capacities, and

that the individual defendants were aware of their potential individual liability.

First, in its amended complaint, Young Apartments seeks punitive damages

against Lukasik and Lecky. In a § 1983 action, punitive damages are only

available from government officials when they are sued in their individual

capacities. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981); see

also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (observing that

plaintiff’s “request for punitive damages suggests an intent to sue the officers in

their individual capacities”).

Second, the individual defendants’ Dec. 2, 2005 motion to dismiss the

amended complaint was almost entirely concerned with establishing their qualified

38
immunity. In a § 1983 action, “[i]t is well-settled that qualified immunity only

protects public officials from lawsuits brought against them in their individual

capacity.” Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1184 n.16 (11th

Cir. 1994). This defense is evidence that Lukasik and Lecky believed they were

being sued in their individual capacities. See Tapley v. Collins, 211 F.3d 1210,

1211 n.2 (11th Cir. 2000) (treating suit as against defendants in their individual

capacities where the complaint was silent but the parties briefed the issue of

qualified immunity).

Third, the amended complaint included language that was intended to put

the individual defendants on notice of their personal liability. For example, the

amended complaint alleged that Lecky was “personally motivated by a race and

national origin-based animus toward the Hispanic immigrants and an animus

toward their landlords, including Young Apts.” (First Am. Compl. ¶ 92.) Young

Apartments also made the allegation that a “similarly situated reasonable

government official” would know such actions were unlawful, which was included

in the amended complaint to avoid a qualified immunity defense. (Id. ¶ 93.)

Finally, the complaint’s caption refers to Lukasik and Lecky only by name

and does not list their official titles. All of this evidence about the course of

proceedings establishes that Young Apartments intended to sue the individual

39
defendants in their individual capacities, and that the defendants were on notice of

this.

The district court identified the proper “course of proceedings” inquiry but

misapplied this test. First, the district court wrongly began its analysis by citing

Soper ex rel. Soper v. Hoben, 195 F.3d 845 (6th Cir. 1999), for the proposition

that “a defendant may be deemed to be sued in his official capacity” when a

complaint does not specify how the defendant is sued. (D. Ct. Op. at 11.) Soper,

however, applied a strict pleading requirement that “plaintiffs must designate in

which capacity they are suing defendants; if not, by operation of law, defendants

are deemed sued in their official capacities.” 195 F.3d at 853.9 This rule, as

applied by Soper, created a presumption that conflicts with our Court’s “course of

proceedings” test. Second, the district court’s analysis relied on the fact that

“Lecky and Lukasik’s actions were undertaken pursuant to performance of their

duties within the scope of their authority.” (D. Ct. Op. at 12.) But personal

liability under 42 U.S.C. § 1983 is specifically available when an official’s

allegedly unconstitutional actions are “within the official’s authority and necessary

9
The rigidity of this rule was later questioned by the Sixth Circuit in Moore v. City of
Harriman, 272 F.3d 769, 772 (2001) (en banc), which concluded that a “course of proceedings”
analysis is more appropriate than the strict rule articulated by Soper.

40
to the performance of governmental functions.” Hafer v. Melo, 502 U.S. 21, 28

(1991). Therefore, this cannot be the end of the analysis.

Instead, we find that Young Apartments intended to sue Lukasik and Lecky

in their individual capacities, and that both defendants had sufficient notice of this

fact. We reverse the district court’s decision and remand for further proceedings

in light of our decision. We do not address the merits of the individual

defendants’ claims of qualified immunity, and leave such claims to be addressed

by the district court in the first instance.

(4)

Count VII: Young Apartments’ Breach of Contract Claims
Have No Merit.

As noted in the statement of facts, Jupiter ordered that fourteen of Young

Apartments’ units be vacated after an inspection on February 24, 2005 found

continued roof damage, missing dry-wall and exposed wiring. Young Apartments

alleges that this action violated the terms of the Agreed Order it had previously

reached with Jupiter. Specifically, Young claims that the parties’ Agreed Order

had the force of a settlement agreement; that Jupiter was obligated under its terms

to fine Young $250 per day if repairs were not completed on time; and that any

other enforcement action violated the agreement.

41
 Young Apartments’ “breach of contract” claims have no merit. First, Young

Apartments’ argument is not supported by the terms of the Agreed Order. The

agreement states that Young Apartments would be subject to daily fines if the

agreed-upon timeline for repairs was not met. Young Apartments interprets this

language to mean that such fines would be Jupiter’s only remedy if repairs were

not completed on time. But there is no language in the Agreed Order to suggest

that Jupiter had negotiated away the right to engage in other enforcement actions if

the repair timeline was not met, or that this agreement limited Jupiter’s

enforcement ability in any fashion other than to postpone fines until February 18,

2005. At most, this agreement shows that Jupiter agreed to toll any available fines

for a limited period of time to allow Young Apartments to address the code

violations through repairs.

Second, even if Young Apartments’ interpretation of the agreement was

correct, that agreement would be unenforceable under Florida law as against

public policy. It has long been held that a “city can neither abdicate nor limit its

police power when the continued use and availability thereof are essential to

public welfare.” Gardner v. City of Dallas, 81 F.2d 425, 426 (5th Cir. 1936); see

also Contributors to Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20,

23 (1917); Stone v. Mississippi, 101 U.S. 814, 817-18 (1880). This general

42
principle applies under Florida law as well. See County of Volusia v. City of

Deltona, 925 So. 2d 340, 345 (Fla. Dist. Ct. App. 2006) (“[A]n agreement

effectively contracting away a city’s exercise of its police power is

unenforceable.”); P.C.B. Partnership v. City of Largo, 549 So. 2d 738, 741 (Fla.

Dist. Ct. App. 1989) (“The City does not have the authority to enter into such a

contract, which effectively contracts away the exercise of its police powers.”).

This rule of law was properly applied by the district court. Jupiter had the

authority and discretion to enter into an agreement with Young Apartments to

postpone condemnation while Young Apartments proceeded with repairs. But

Young Apartments cannot reasonably claim that Jupiter, when faced with leaking

roofs and exposed wiring, could be limited in its police power because of a prior

agreement whose deadline had expired. Under Florida law, Jupiter can neither

waive nor contract away its police powers.

CONCLUSION

For the foregoing reasons, we reverse the district court’s motion to dismiss

with respect to Young Apartments’ standing claim and remand for the district

court to consider whether Jupiter adopted and enforced the Overcrowding

Ordinance with the intent to discriminate against Young Apartments’ Hispanic

immigrant tenants. We also reverse the district court’s finding that Lukasik and

43
Lecky were sued solely in their official capacities. Thus, we remand to the district

court to consider the claims against Lukasik and Lecky, as well as their affirmative

defense of qualified immunity. Finally, we affirm the district court’s dismissal of

Young Apartments’ breach of contract claim.

REVERSED in part, AFFIRMED in part, and REMANDED.

44