Case 6:24-cv-01665-WWB-NWH Document 48 Filed 09/10/25 Page 1 of 11 PageID 963

UNITED STATES DISTRICT COURT

6064 NOA, LLC, 4654 NOA, LLC and

Plaintiffs,

v. Case No.: 6:24-cv-1665-WWB-NWH

THE CITY OF ORLANDO and POLICE

Defendants.
/

ORDER

THIS CAUSE is before the Court on Defendants’ Motion to Dismiss (Doc. 18),

Plaintiffs’ Opposition (Doc. 21) thereto, and Defendants’ Reply (Doc. 27). 1 For the

reasons set forth below, the Motion will be granted.

I. BACKGROUND

Plaintiffs are small businesses that operate bars, clubs, and concert venues in a

portion of downtown Orlando, Florida, that Defendant City of Orlando (“the City”) has

designated as the Downtown Entertainment Area (“DEA”) since 2008. (Doc. 1, ¶¶ 6–18,

23–24). In the aftermath of the COVID-19 pandemic, the City became concerned about

increased violent crime in the DEA. (Id. ¶¶ 34–37). To address these concerns, the City

elected to increase police presence in the DEA, focusing on venues that attracted

1 The parties’ filings fail to comply with the Court’s January 13, 2021 Standing
Order. Further, Plaintiff’s Opposition fails to comply with Local Rule 3.01(b), which
provides that a response to a motion must be “no longer than twenty pages inclusive of
all parts.” In the interests of justice, the Court will consider the filings, but the parties are
cautioned that future failures to comply with all applicable rules and orders of this Court
will result in the striking of denial of filings without notice or leave to refile.
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significant crowds. (Id. ¶¶ 37–39, 53). The City opted to finance the increased police

presence by amending the City Code of the City of Orlando, section 33.03, effective May

2023. (Id. ¶¶ 42–45). This amendment implemented a special land use permit, the After

Midnight Alcohol Sales Permit (“AMS Permit”), which allowed businesses in the DEA to

sell alcohol after midnight, provided that those businesses implement certain security

measures and agree to bear the costs of the increased police presence by paying a fee

(the “Police Protection Fee”) (Id. ¶¶ 42–52).

The number of officers assigned to a venue—and the amount of the accompanying

Police Protection Fee—depend on the venue’s occupancy limits, with venues with

occupancy limits below 125 persons exempt from paying for any additional police

presence to receive and maintain an AMS Permit. (Id. ¶ 53–56). Smaller venues may

be required to hire police officers upon a finding by the Chief of Police, Defendant Eric

Smith, that the venue “has had a disparate impact on traffic control, has had a history of

violent incidents at the establishment, or as otherwise required for public safety.” (Id. ¶

53). Also excluded from the Police Protections Fee are venues that only sell beer and

wine, hotels, convention centers, and “civic auditoriums and sports arenas . . . public

lodging establishments . . . and motion picture theaters . . . so long as their principal

business is not the sale, service, or consumption of alcoholic beverages.” (Id. ¶ 57).

Plaintiffs allege that although approximately eighty-five businesses in the DEA

carry an AMS Permit, only thirty-three (including Plaintiffs) pay the Police Protection Fee

associated with hiring and deploying the additional police presence. (Id. ¶ 56). Plaintiffs

allege that although part of the discrepancy results from the exemption for smaller

venues, the City has also arbitrarily allowed larger venues, including auditoriums, arenas,

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and hotels, to hold AMS Permits without hiring additional police. (Id. ¶ 60–65). Plaintiffs

accordingly bring the instant suit pursuant to 42 U.S.C. § 1983, alleging violations of the

Takings Clause of the Fifth Amendment, and substantive due process rights and equal

protection guaranteed by the Fourteenth Amendment. (Doc. 1, ¶¶ 103–141).

II. LEGAL STANDARD

“A pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Where a complaint alleges fraud or mistake, “a party must state with particularity

the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Malice, intent,

knowledge, and other conditions of a person’s mind may be alleged generally.” Id.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss

a complaint for “failure to state a claim upon which relief can be granted.” In determining

whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the

complaint as true and construes them in a light most favorable to the non-moving party.

See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless,

“the tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Furthermore, “[t]o survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

III. DISCUSSION

As an initial matter, it appears that the Complaint is an impermissible shotgun

pleading with respect to Count II. “The failure to identify claims with sufficient clarity to

enable the defendant to frame a responsive pleading constitutes a ‘shotgun pleading.’”

Beckwith v. BellSouth Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005) (citing

Byrne v. Nezhat, 261 F.3d 1075, 1029–30 (11th Cir. 2001)). “[S]hotgun pleadings wreak

havoc on the judicial system” and “divert already stretched judicial resources into disputes

that are not structurally prepared to use those resources efficiently.” Wagner v. First

Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006) (alteration in original)

(quotation omitted). As such, “[w]hen presented with a shotgun complaint, the district

court should order repleading sua sponte.” Ferrell v. Durbin, 311 F. App’x 253, 259 n.8

(11th Cir. 2009); see also Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d

1290, 1333 (11th Cir. 1998) (noting that shotgun pleadings drain judicial resources, and

the district should act sua sponte to define the issues at the earliest possible stage).

The Eleventh Circuit has defined four types of shotgun pleadings. “The most

common type—by a long shot—is a complaint containing multiple counts where each

count adopts the allegations of all preceding counts, causing each successive count to

carry all that came before and the last count to be a combination of the entire complaint.”

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015). The

second most common type “is a complaint that . . . is guilty of the venial sin of being

replete with conclusory, vague, and immaterial facts not obviously connected to any

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particular cause of action.” Id. at 1322. “The third type of shotgun pleading is one that

commits the sin of not separating into a different count each cause of action or claim for

relief.” Id. at 1322–23. “Fourth, and finally, there is the relatively rare sin of asserting

multiple claims against multiple defendants without specifying which of the defendants

are responsible for which acts or omissions, or which of the defendants the claim is

brought against.” Id. at 1323.

In Count II, Plaintiffs seek relief under two distinct legal theories: substantive due

process and equal protection, both arising under the Fourteenth Amendment. (Doc. 1,

¶¶ 127–141). Count II thus falls into the third type of shotgun pleading by failing to

separate “into a different count each cause of action or claim for relief.” Weiland, 792

F.3d at 1323. The Court could dismiss the Complaint on this ground alone. However, in

the interests of judicial economy, the Court will address Defendants’ arguments regarding

the substance of Plaintiffs’ allegations.

A. Claims Under the Takings and Due Process Clauses

Defendant first argues that Counts I & II must be dismissed because Plaintiff has

failed to establish a constitutionally protected property interest. To state a claim under

the Takings Clause, “a plaintiff must first demonstrate that he possesses a ‘property

interest’ that is constitutionally protected.” Givens v. Alabama Dep’t of Corrs., 381 F.3d

1064, 1066 (11th Cir. 2004). Similarly, a plaintiff alleging a violation of due process must

establish “(1) a deprivation of a constitutionally protected property interest, (2) state

action, and (3) a constitutionally inadequate process.” Lexra, Inc. v. City of Deerfield

Beach, 593 F. App’x 860, 863–64 (11th Cir. 2014) (citing Grayden v. Rhodes, 345 F.3d

1225, 1232 (11th Cir. 2003). “State law forms the basis for an alleged deprivation of a

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constitutionally protected property interest.” Id. at 864 (citing Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972)).

In their Opposition, Plaintiffs argue that the Police Protection Fees associated with

their AMS Permit are so excessive that they deny “substantially all economically beneficial

or productive use” of the real property where Plaintiffs’ establishments are located. (Doc.

21 at 7) (quoting Tampa-Hillsborough Cnty Expressway Auth. v. A.G.W.S. Corp., 640 So.

2d 54, 58 (Fla. 1994)). In Plaintiff’s view, the AMS Permit is a land-use regulation that

implicates their protected interest in using their land in accordance with their “reasonable

investment-backed expectations.” (Id.) (quoting Cedar Point Nursey v. Hassid, 594 U.S.

139, 148 (2021) (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124

(1978)). Further, because the AMS Permit and accompanying Police Protection Fee

frustrate those expectations, Plaintiffs contend that they amount to a regulatory taking.

In the Court’s view, however, Plaintiffs’ framing is too broad. Review of the

Complaint shows that Plaintiffs’ claims arise specifically from their interest in “obtaining

or maintaining a land use permit to sell alcohol after midnight” as conditioned by the AMS

Permit and the Police Protection Fee. (Doc. 1, ¶ 125). This interest arises solely out of

Plaintiff’s license to sell alcohol. That license is not a right, but rather is a privilege granted

by the state government and expanded on by the City. See United States v. McGurn,

596 So. 2d 1038, 1041 (Fla. 1992) (“[A] liquor license is not like other ‘general intangibles’

because it is issued as a matter of privilege, not as a matter of right, by the government.”);

see also Fla. Stat. § 562.14 (prohibiting sale of alcohol between the hours of midnight

and 7:00 AM, except “as otherwise provided by county or municipal ordinance.”). Both

Florida courts and the Eleventh Circuit hold that a “license to sell alcohol is not a property

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interest in Florida for the purposes of a constitutional claim.” Lexra, Inc., 593 F. App’x at

864; see also Walling Enters., Inc. v. Mathis, 636 So. 2d 1294, 1296–97 (Fla. 1994) (“This

Court has specifically determined that a liquor license ‘is not property in a constitutional

sense.’” (quoting State ex rel. First Presbyterian Church v. Fuller, 187 So. 148, 150 (Fla.

1939))); Yarbrough v. Villeneuve, 160 So. 2d 747, 747–48 (Fla. 1st DCA 1964) (holding

that although a liquor license is considered property “in a commercial sense,” a liquor

license “under the laws of this state is but the grant of a privilege which confers no vested

rights in the licensee and as such is not property in the constitutional sense.”).

Plaintiffs acknowledge these authorities but nonetheless argue that their liquor

licenses suffice as protected property interests because Florida law recognizes that such

licenses possess a “quality of property.” (Doc. 21 at 15) (citing Walling Enters., 636 So.

2d at 1297)). But Plaintiffs fail to address that Florida has “taken care to distinguish the

commercial context from the constitutional” with respect to the nature of a liquor license.

Persaud Props. FL Invs., LLC v. Town of Fort Myers Beach, 658 F. Supp. 3d 1072, 1081

(M.D. Fla. 2023); see also Walling Enters., 636 So. 2d at 1297 (liquor licenses possess

“the quality of property” allowing them to be assigned, transferred, and be subject of a

lien or security interest.). The Court accordingly concludes that Plaintiffs’ claims under

the Takings Clause and for violation of due process fail for want of a constitutionally

cognizable property interest. See Givens, 381 F.3d at 1066 (11th Cir. 2004); Lexra, Inc.,

593 F. App’x at 863–64. To conclude otherwise would be to contradict clear authority,

which this Court will not do.

B. Claim Under the Equal Protection Clause

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The Court now turns to Plaintiffs’ claim for violation of the Fourteenth Amendment’s

Equal Protection Clause. Plaintiffs do not dispute that Section 33.03 of the City Code of

the City of Orlando does not target a protected class or implicate a fundamental right.

Accordingly, it is subject to rational basis review regarding Plaintiff’s equal protection

claim. See Ga. Manufactured Hous. Ass'n, Inc. v. Spalding Cnty, Ga., 148 F.3d 1304,

1306–07 (11th Cir. 1998). Under rational basis review, Defendants will prevail if the

differential application of the Police Protection Fee are rationally related to the

achievement of some legitimate government purpose. Id.; see also Fed. Commc’ns

Comm’n v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (“In areas of social and

economic policy, a statutory classification that neither proceeds along suspect lines nor

infringes fundamental constitutional rights must be upheld against equal protection

challenge if there is any reasonably conceivable state of facts that could provide a rational

basis for the classification.”).

The Court’s analysis under rational basis review is twofold. First, the Court must

“identify[ ] a legitimate government purpose—a goal—which the enacting government

body could have been pursuing.” Haves v. City of Mia., 52 F.3d 918, 921 (11th Cir. 1995).

“The actual motivations of the enacting governmental body are entirely irrelevant.” Id.

Second, the Court asks, “whether a rational basis exists for the enacting governmental

body to believe that the legislation would further the hypothesized purpose.” Id. at 922.

The proper inquiry addresses the “existence of a conceivably rational basis, not whether

that basis was actually considered by the legislative body.” Panama City Med. Diagnostic

Ltd. v. Williams, 13 F.3d 1541, 1546 (11th Cir. 1994). As long as the relationship between

the statutory classification and its goal is “not so attenuated as to render the distinction

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arbitrary or irrational,” the challenged enactment will survive rational basis review.

Nordlinger v. Hahn, 505 U.S. 1, 11 (1992).

The Court may apply rational basis review even at the dismissal stage where a

plaintiff challenges a legislative enactment that “neither targes a protected class nor

implicates fundamental rights of the Fourteenth Amendment.” Kentner v. City of Sanibel,

No. 2:11-cv-661, 2012 WL 12861154, at *10 (M.D. Fla. Aug. 21, 2012) (quoting

Serpentfoot v. Rome City Comm’n, 322 F. App’x 801, 806 (11th Cir. 2009)). This is

particularly appropriate for an equal protection claim premised solely on a legislative act

because “a legislative choice is not subject to courtroom fact-finding and may be based

on rational speculation unsupported by evidence or empirical data.” Beach Commc’ns,

508 U.S. at 315.

Here, Plaintiff’s base their equal protection claim on the City’s disparate application

of the Police Protection Fee. Specifically, Plaintiffs allege that there is no rational basis

for the City to impose the Police Protection on larger venues, like Plaintiffs’, but not on

smaller venues, who pay no fee at all. Further, Plaintiffs allege no rational basis justifying

exempting from the Police Protection Fee certain larger venues, including hotels, arenas,

and theaters.

Applying the first step of rational basis review, the Court concludes that the City

could have been pursuing a legitimate government purpose in enacting the AMS Permit

and the Police Protection Fee. Specifically, the City could have sought to promote public

health and safety by enacting a scheme that would reduce the sale of alcohol in the DEA

after midnight and increase police presence around venues that sell alcohol. See Joel v.

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City of Orlando, 232 F.3d 1353, 1358 (11th Cir. 2000). Indeed, the allegations in the

Complaint reflect this intent. (Doc. 1, ¶¶ 35–37).

As to the second step, the Court concludes that a rational basis exists for believing

that allocating the financial burden of additional police based on venue occupancy limits

would further public safety. The City might reasonably have believed that establishment

with larger crowds present greater risks to public safety, and distribute the burden of

additional police presence accordingly. Further, there is a rational basis for the distinction

between the types of venues Plaintiffs operate—clubs, bars, concert venues—and other

venues, including hotels, auditoriums, and sports arenas. The City could have rationally

concluded that visitors to the latter types of venues consume less alcohol and leave the

DEA before the hours of the night when the incidence of crime tends to increase.

Accordingly, section 33.03, the AMS Permit, and the classifications for the Police

Protection Fee survive rational basis review.

Plaintiffs contend, however, that these justifications fail to hold water. For instance,

Plaintiffs allege that the City arbitrarily imposes the Police Protection Fee even when

Plaintiffs’ venues are closed. Moreover, Plaintiffs argue that Defendants fail entirely to

account for the cumulative impact that smaller venues, and the crowds they attract, have

on public safety in the DEA. These arguments fails because they question only the

“wisdom, fairness, or logic” of the City’s classifications as to the Police Protection Fees.

Beach Commc’ns, Inc., 508 U.S. at 313; Fresenius Med. Care Holdings, Inc. v. Tucker,

704 F.3d 935, 944 (11th Cir. 2013) (affirming summary judgment on equal protection

claim and rejecting arguments going to “the wisdom of the statute, not to its burden on

commerce.” (quotation omitted))). Defendants’ Motion will be granted.

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IV. CONCLUSION

For the reasons set forth herein, it is ORDERED and ADJUDGED as follows:

1. Defendants’ Motion to Dismiss (Doc. 18) is GRANTED.

2. This case is DISMISSED with prejudice.

3. The Clerk is directed to terminate all pending motions and close this case.

DONE AND ORDERED in Orlando, Florida on September 10, 2025.

Copies furnished to:

Counsel of Record

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