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Vazzo v. City of Tampa

United States District Court, M.D. Florida, Tampa Division

October 4, 2019

CITY OF TAMPA, Defendant.



         This matter comes to the Court on Motions for Summary Judgment filed by Plaintiffs Robert Vazzo and New Hearts Outreach Tampa Bay, Dkt. 194, and Defendant, City of Tampa, Dkt. 189. With the benefit of full briefing and able argument by both sides at a hearing, the Court grants Plaintiffs' motion for summary judgment as to Count VI of the Amended Complaint, Dkt. 78, pursuant to Fed.R.Civ.P. 56.


         This case involves a challenge to the City of Tampa's municipal ordinance prohibiting sexual orientation change efforts (“SOCE”) on minors during licensed psychotherapy and counseling. The Eleventh Circuit follows “the longstanding principle that federal courts should avoid reaching constitutional questions if there are other grounds upon which a case can be decided.” BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir. 2001). The Supreme Court has long endorsed this “sound general policy.” District of Columbia v. Little, 339 U.S. 1, 3-4 (1950). Following this policy, the Court turns first to Count VI, a preemption Count based upon Florida law. According to the City, the Ordinance regulates medical professionals and “part of the practice of medicine” within the City limits. Dkt. 189 at 17. The City is unaware of any child ever receiving proscribed SOCE in the City.[1] The City has never before substantively regulated and disciplined the practice of medicine, psychotherapy, or mental health treatment within City limits. Nor does the City possess charter or home rule authority to do so. The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs' motion for summary judgment on Count VI. Dkt. 194.


         The Ordinance: The City of Tampa passed Ordinance 2017-47 (attached here as an appendix) on April 6, 2017. It was signed into law by Mayor Bob Buckhorn four days later.[2] Broadly stated, the Ordinance bars therapy within the City by medical doctors and mental health professionals that seeks to assist a minor patient in a goal to change gender expression or to change sexual orientation/attraction. These two subjects are separate and distinct, but related. The cases have generically referred to these two subjects as “SOCE” or sexual orientation change efforts. The Ordinance uses the term “conversion therapy.” Neither term is entirely accurate, but the Court will use the term “SOCE” for these two subjects as that seems more prevalent in the case law and literature and that term was preferred by the City's expert.[3] The Tampa Ordinance prohibiting SOCE on minors is very similar to one present in other lawsuits now pending.[4]

         Specifically, the Ordinance contains a lengthy preamble, citing a number of psychological and medical studies offering criticism of SOCE. Tampa, Fla., Ordinance 2017-47 (April 10, 2017). The preamble, which serves as legislative factfinding by the City Council, cites as legal authority “two federal circuit courts of appeal [that] have upheld bans on conversion therapy.”[5] These two cases, from the U.S. Ninth and Third Circuit Courts of Appeals, were criticized by name and possibly abrogated on First Amendment grounds by the U.S. Supreme Court in 2018 in Nat'l Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361, 2371-72 (2018).

         The Ordinance states that the City Council found “overwhelming research demonstrating that sexual orientation and gender identity change efforts can pose critical health risks to lesbian, gay, bisexual, transgender or questioning persons, and that being lesbian, gay, bisexual, transgender or questioning is not a mental disease, mental disorder, mental illness, deficiency, or shortcoming.” Tampa, Fla., Ordinance 2017-47 at 4 (April 10, 2017). Relevant text is as follows:

         Sec. 14-310.-Intent .

The Intent of this Ordinance is to protect the physical and psychological well-being of minors, including but not limited to lesbian, gay, bisexual, transgender and/or questioning youth, from exposure to the serious harms and risks caused by conversion therapy or reparative therapy by licensed providers, including but not limited to licensed therapists. These provisions are exercises of police power of the City for the public safety, health, and welfare; and its provisions shall be liberally construed to accomplish that purpose.

         Sec. 14-311.-Definitions .

Conversion therapy or reparative therapy means, interchangeably, any counseling, practice or treatment performed with the goal of changing an individual's sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex. Conversion therapy does not include counseling that provides support and assistance to a person undergoing gender transition or counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change sexual orientation or gender identity.
Minor means any person less than 18 years of age.
Provider means any person who is licensed by the State of Florida to provide professional counseling, or who performs counseling as part of his or her professional training under chapters 456, 458, 459, 490 or 491 of the Florida Statutes, as such chapters may be amended, including but not limited to, medical practitioners, osteopathic practitioners, psychologists, psychotherapists, social workers, marriage and family therapists, and licensed counselors. A Provider does not include members of the clergy who are acting in their roles as clergy or pastoral counselors and providing religious counseling to congregants, as long as they do not hold themselves out as operating pursuant to any of the aforementioned Florida Statutes licenses.

         Sec. 14-312.-Conversion Therapy Prohibited .

It shall be unlawful for any Provider to practice conversion therapy efforts on any individual who is a minor regardless of whether the Provider receives monetary compensation in exchange for such services.

Tampa, Fla., Code of Ordinances §§ 14-310 to -312 (2019).

         The Ordinance provides for a $1000 fine for the first offense and a $5000 fine for subsequent offenses. Id. § 14-313. The City's Department of Neighborhood Enhancement (formerly Code Enforcement) enforces the Ordinance. Id. Although this is the City Department that usually enforces code violations like overgrown weeds and unpermitted contracting, the City's Neighborhood Enhancement director testified that he would take any suspected violation of the SOCE Ordinance to the City Attorney before issuing a notice of violation. Dkt. 133-1 at 23-25, 29. The Assistant City Attorney tasked as representative on this matter has been a lawyer for four years but has no training in counseling, therapy, or medicine; and stated that the City would consult Webster's Dictionary to understand the terms in the Ordinance. Dkt. 133-3 at 23, 25, 67-68.

         If contested, the City would employ a “special magistrate” to adjudicate the alleged violation as a code enforcement proceeding. Dkt. 134-3 at 8; Dkt. 133-3 at 102-03. The City's special magistrates are unpaid volunteers appointed by the mayor. Id. The City has no plan in connection with the Ordinance to appoint someone who is a licensed mental health provider. Id. at 104.

         The Ordinance does not preclude providers from speaking about SOCE to any persons including patients and in any setting, other than as part of therapy with minor patients. The Ordinance applies only to licensed practitioners while giving mental health therapy to minors within City limits, and applies to no other persons such as ministers, lay providers, parents, unlicensed persons, etc. Tampa, Fla., Ordinance 2017-47 at 4 (April 10, 2017). The Ordinance does not differentiate between coercive or aversive therapy, and simple “talk therapy.”

         The Plaintiffs: Plaintiff Vazzo is a marriage and family therapist licensed in Florida and other states. Dkt. 78 ¶ 14. His practice includes providing SOCE counsel to minors. Id. ¶ 102. According to Vazzo, SOCE counseling may help clients including minors “reduce or eliminate same-sex sexual attractions, behaviors, or identity.” Id. ¶¶ 60, 88, 116. Vazzo employs no coercive or aversive techniques. Id. ¶ 61. During SOCE counseling, Vazzo uses speech to help clients “understand and identify their anxiety or confusion regarding their attractions, or identity and then help the client formulate the method of counseling that will most benefit that particular client.” Id. ¶ 65.

         Vazzo states that clients initiate SOCE counseling by giving informed consent. Id. ¶ 8. Some clients request SOCE counseling to “address the conflicts between their sincerely held religious beliefs and goals to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity.” Id. ¶ 9.

         Plaintiff New Hearts Outreach is a Christian ministry in Tampa. Id. ¶¶ 16, 126. Part of its ministry is to refer individuals, including minors, “struggling with unwanted same-sex attractions, behaviors, and identity” to mental health professionals to receive SOCE counseling. Id. ¶¶ 132-34.

         Vazzo cannot provide SOCE counseling to minors in Tampa under Ordinance 2017-47. Id. ¶ 112. Nor can New Hearts Outreach refer minors to Vazzo for SOCE counseling in Tampa. Id. ¶ 135.

         Plaintiffs sue the City and allege Ordinance 2017-47 violates their federal and state constitutional rights. Dkt. 78. The Plaintiffs allege Ordinance 2017-47 violates their right to freedom of speech under the First Amendment (Count I), a claim to which the parties have devoted great attention. Id. ¶¶ 177-96; see Dkt. 189 at 5-17; Dkt. 194 at 2-20.

         Among their other claims, Plaintiffs allege in Count VI that the Florida legislature preempted the field of regulating mental health professionals. Id. ¶¶ 262-75. Because this Court grants summary judgment on the preemption claim in Count VI, the other counts in the Amended Complaint are not discussed.[6]


         Rule 56 of the Federal Rules of Civil Procedure provides that a summary judgment “shall [be granted] if the movant shows that 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). “The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Jeffrey v. Sarasota White Sox, 64 F.3d 590, 593 (11th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The Court must view the evidence in the light most favorable to the non-movant and resolve all doubts in the non-movant's favor. Id. at 594.

         However, when “the party seeking summary judgment meets the initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to come forward with sufficient evidence to rebut this showing with affidavits or other relevant and admissible evidence.” Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) (citing Celotex, 477 U.S. at 324). To satisfy its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         Furthermore, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-‘whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (quoting Schuylkill and Dauphin Imp. Co. v. Munson, 81 U.S. 442, 448 (U.S. 1871)).


         The Supreme Court of Florida most recently addressed the implied preemption doctrine in D'Agastino v. City of Miami, 220 So.3d 410 (2017) (finding portion of Miami ordinance impliedly preempted). The Court noted that, “in Florida, the power of a municipal government to legislate is derived from both constitutional provisions and statute. Generally speaking, the Florida Constitution authorizes and empowers municipalities to exist and conduct municipal powers except as otherwise provided by law.” Id. at 420. Concerning municipal powers, the Florida Constitution states:

(b) POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Each municipal legislative body shall be elective.

Fla. Const. art. VIII, § 2(b); see also D'Agastino, 220 So.3d at 420.

         Acting on its constitutional authority to address municipal powers, the Legislature clarified the powers of municipal government by enacting the Municipal Home Rule Powers Act, which is now codified in section 166.021 of the Florida Statutes. D'Agastino, 220 So.3d at 420. Specifically, section 166.021(1) provides in full:

         166.021 Powers.-

(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.

Fla. Stat. § 166.021(1) (2008); see also D 'Agastino, 220 So.3d at 420. D 'Agastino noted that:

         However, these powers are subject to limitations; among others, municipalities may not enact legislation concerning subjects expressly preempted to the state by general law:

“(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution.”

220 So.3d at 420 (quoting Fla. Stat. § 166.021(3) (2008)) (emphasis omitted).

         Against this backdrop, the D 'Agastino court observed that “a local government enactment may be inconsistent with state law where the Legislature has preempted a particular subject area.” Id. at 420-21 (quoting Sarasota All. for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla. 2010)). The Florida Supreme Court noted that Florida law recognizes both express preemption and implied preemption. Id. . at 421.

         Unlike the explicit nature of express preemption, “implied preemption occurs when the state legislative scheme is pervasive and the local legislation would present a danger of conflict with that pervasive scheme.” Id. Put another way, “preemption is implied when the legislative scheme is so pervasive as to virtually evidence an intent to preempt the particular area or field of operation, and where strong public policy reasons exist for finding such an area or field to be preempted by the Legislature.” Id. Thus, explicit words are not required for preemption “so long as it is clear from the language utilized that the Legislature has clearly preempted local regulation of the subject.” Id. (citing to Barragan v. City of Miami, 545 So.2d 252, 254 (Fla. 1989)). The D'Agastino Court held that the test for implied preemption requires that the courts look “to the provisions of the whole law, and to its object and policy.” Id. (citing Browning, 28 So.3d at 886); see also State v. Harden, 938 So.2d 480, 486 (Fla. 2006). Additionally, “[t]he nature of the power exerted by the Legislature, the object sought to be attained by the statute at issue, and the character of the obligations imposed by the statute” are all vital in this analysis. Id.

         D'Agastino cautioned judges to “be careful and mindful in attempting to impute intent to the Legislature to preclude a local elected governing body from exercising its home rule powers.” Id. (citing Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996)). Despite this caveat the Florida Supreme Court went on to explain:

Nevertheless, as we reemphasized in City of Palm Bay, because the Legislature is ultimately superior to local government under the Florida Constitution, preemption can arise even where there is no specifically preclusive language. 114 So.3d at 928 (“But we have never interpreted either the constitutional or statutory provisions relating to the legislative preemption of municipal home rule powers to require that the Legislature specifically state that the exercise of municipal power on a particular subject is precluded.”). We further reaffirmed in City of Palm Bay that the language “except as otherwise provided by ...

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