VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND by jkl31239

VIEWS: 180 PAGES: 18

									                        IN THE UNITED STATES DISTRICT COURT
                       FOR THE SOUTHERN DISTRICT OF FLORIDA

INTERNATIONAL OUTREACH                      )
CENTER, and WORLDWIDE AGAPE                 )
MINISTRIES,                                 )
                                            )
              Plaintiffs,                   )
                                            )
v.                                          )       Case No.
                                            )
MIAMI DADE COUNTY, FLORIDA,                 )       JURY TRIAL DEMANDED
                                            )
              Defendant.                    )

             VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT,
                      INJUNCTIVE RELIEF AND DAMAGES

      COME NOW the Plaintiffs, by counsel, and for their causes of action against the Defendant

MIAMI-DADE COUNTY, FLORIDA (“County” or “Defendant”), allege and state the following:

                                  I.      INTRODUCTION

      1. Plaintiff International Outreach Center (“IOC”) has been using its current property in

Miami-Dade County for church offices and for communal prayer, Bible reading and discussion,

and singing religious songs (“meetings”) since 1994. On April 21, 2006, IOC received a code

violation from the County stating that it needs to obtain a Certificate of Use to use its building

for church services. On August, 24, 2006, Plaintiff submitted an application for a Certificate of

Use to the County. The County responded by stating that several items need to be corrected

before it can issue a Certificate of Use. One of those items is that IOC’s building needs to be on

2.5 acres. While all of the other items can be addressed by IOC, it is unable to meet the 2.5 acre

requirement. Indeed, according to the County’s Zoning Code, a church cannot be located


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anywhere in the County on less than 2.5 acres. While all other assembly uses can meet in the

County on less than 2.5 acres, churches face this discriminatory restriction.

       2.      Plaintiff WorldWide Agape Ministries (“WW Ministries”) is a small church that

currently meets in a home. WW Ministries has been informed by the County that it must cease

and desist holding worship services in a home, even for only 2-3 persons. Consequently, WW

Ministries wants to find another location within the County to meet. However, because of its

small size, it cannot afford to purchase or lease enough land to satisfy the 2.5 acre minimum

requirement for churches in the County.

       3.      Plaintiffs are challenging the Miami Dade County Zoning Code (“Code”) in that it

violates Plaintiffs’ rights under the United States Constitution; the Religious Land Use and

Institutionalized Person’s Act (“RLUIPA”), 42 U.S.C. §2000cc-1, et seq.; and Florida’s

Religious Freedom Restoration Act of 1998 (“Florida’s RFRA”), Fla. Stat. § 761.03, et seq., due

to its unequal treatment of churches compared to other public assembly uses.

       4.      To redress irreparable harm to their rights, Plaintiffs seek declaratory and

injunctive relief for violation of their constitutional and statutory rights, and seek compensatory

and nominal damages to redress past legal injuries.

                                  II. JURISDICTION AND VENUE

       5.      This action arises under the United States Constitution; 42 U.S.C. §§ 1983, 1988

RLUIPA, 42 U.S.C. §2000cc-1, et seq.; and Florida’s RFRA, Fla. Stat. § 761.03, et seq.

       6.      This Court is vested with original jurisdiction over the federal claims by operation

of 28 U.S.C. §§ 1331, 1343 and 1367, and has supplemental jurisdiction pursuant to 28 U.S.C. §

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1367 to hear claims arising under Florida law.

        7.      This Court is vested with authority to grant the requested declaratory judgment by

operation of 28 U.S.C. §§ 2201, et seq.

        8.      This Court is authorized to issue the requested injunctive relief pursuant to Rule

65 of the Federal Rules of Civil Procedure.

        9.      This Court is authorized to award attorneys fees pursuant to 42 U.S.C. § 1988,

and Fla. Stat. § 761.03, et seq.

        10.     Venue is proper in the United States District Court for the Southern District of

Florida under 28 U.S.C. § 1391(b), in that all plaintiffs reside in the district, the events giving

rise to the claims occurred within the district, and the subject properties are located in the district.

                                   III. IDENTIFICATION OF THE PARTIES

        10.     Plaintiff IOC is a nonprofit organization under the laws of Florida.

        11.     Plaintiff WW Ministries is a nonprofit organization under the laws of Florida.

        12.     Defendant Miami-Dade County (“County”) is a municipal corporation located in

the State of Florida, existing under the Constitution and laws of the State of Florida and is a

corporate entity capable of suing and being sued.

                                      IV. STATEMENT OF FACTS

        13.     IOC leases five units in a building located within the County, addresses of 12807,

1209, 12811, 12813, and 12815 S.W. 134th Court, Miami, Florida (collectively, “IOC Property”).

        14.     IOC has used its property for church offices and for its meetings since 1994.




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         15.   A unit adjacent to the IOC Property has been used as a dance studio, open to the

public, since before IOC began leasing its space (1994).

         16.   The IOC Property is zoned as Industrial Use Conditional.

         17.   Currently, about 70 people attend the meetings at the IOC property.

         18.   On April 21, 2006, IOC received a warning notice from the County stating it was

unlawfully operating a business without a valid Certificate of Use.

         19.   On August 24, 2006, IOC submitted an application to the Miami-Dade County

Department of Planning and Zoning for a Certificate of Use to use its property as a church.

         20.   The County responded to IOC’s application by providing a list of items needing

IOC’s compliance. One of these items is that the IOC property needs to be located on 2.5 acres.

         21.   The Code requires all churches in the County to be located on a minimum of 2.5

acres.

         22.   Code § 33-18(d) states, “No church shall be constructed, operated or permitted

upon any site that does not contain a minimum of two and one-half (2 1/2) acres of land area,

including street dedications, and having a minimum contiguous frontage of at least one hundred

fifty (150) feet abutting on a public street right-of-way. Off-street parking facilities shall be

provided and maintained within the land area of every church site in conformity with the

requirements of Sections 33-122 through 33-132.” Relevant portions of the Code are attached as

Exhibit 1.

         23.   While all of the other items can be addressed by IOC, it is unable to meet the 2.5

acre requirement.

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       24.     Other assembly uses within the Industrial Use Conditional District are not

subjected to a minimum acreage requirement.

       25.     Other assembly uses within the County’s jurisdiction are not subjected to a

minimum acreage requirement.

       26.     The County’s minimum acreage requirement for churches applies throughout the

County.

       27.     WW Ministries is a small ministry of about 10 persons who meet regularly to

pray, read and discuss the Bible, and sing religious songs.

       28.     WW Ministries meet at a home within the County.

       29.     On November 21, 2006, WW Ministries received an Order from Miami-Dade

County to cease and desist all church services in the home.

       30.     The Order prohibits Plaintiffs from having others over to their home for

communal prayer, Bible reading, singing religious songs, and discussion of biblical passages.

       31.     WW Ministries were informed by Miami-Dade County Zoning Compliance

Officer R. Brunetto that they could not even have 2-3 people come over to their house for prayer.

       32.     Officer Brunetto warned the Plaintiffs that if they continued to have others come

to their house for prayer, they would be fined and possibly, a lien could be placed on their house.

       33.     Consequently, WW Ministries is looking for another place to hold their meetings.

       34.     However, WW Ministries is unable to find a location within the County due to the

unreasonable restrictions placed on churches within the County.

       35.     For example, as stated above, every church must be located on 2.5 acres.

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        36.    In addition, churches are not allowed as of right in the following districts: RU-1,

RU-1Z, RU-1M(a), RU-1M(b), RU-2, RU-TH, RU-5, RU-5A, EU-M, EU-S, EU-1, EU-1C, EU-

2, IU-1, IU-2, IU-3, IU-C.

        37.    Yet, other public assembly uses are allowed as a matter of right those same

districts.

        38.    For example, although auditoriums and private clubs are permitted as a matter of

right in the IU-1 District, churches are not.

        39.    Due to the restrictions placed on churches, WW Ministries is unable to find

another place to conduct its meetings.

        40.    Defendant’s Code does not treat churches within the County equally with other

public assembly uses.

                                      V. ALLEGATIONS OF LAW

        41.    All acts of the Defendant, its officers, agents, servants, employees, or persons

acting at its behest or direction, were done and are continuing to be done under the color and

pretense of state law, including the ordinances, regulations, customs, policies and usages of the

County.

        42.    The violations of Plaintiffs’ constitutional and civil rights alleged herein have

caused, and will continue to cause, Plaintiffs to suffer irreparable injury and damage.

        43.    Plaintiffs have no adequate or speedy remedy at law to correct or redress the

deprivations their constitutional and civil rights.




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       44.       Unless and until County Code § 33-18(d) is enjoined and declared

unconstitutional, Plaintiffs will suffer and continue to suffer irreparable injury.

       45.       The Defendant will suffer no harm if the injunctive relief is granted to Plaintiffs.

       46.       The harm to Plaintiffs outweigh any harm to the Defendant.

       47.       The public interest is benefited when constitutional and civil rights are protected

by the courts.

                                  COUNT 1 – VIOLATION OF RLUIPA

       48.       Plaintiffs reallege all matters set forth above.

       49.       Defendant’s Policy and practice violate Plaintiffs’ free exercise of religion as

guaranteed by RLUIPA, 42 U.S.C. §2000cc, et seq.

       50.       Plaintiffs’ religious beliefs are sincerely and deeply held.

       51.       Defendant’s Policy and practice impose a substantial burden on Plaintiffs’

religious exercise.

       52.       Defendant’s Policy and practice are not in furtherance of a compelling

governmental purpose.

       53.       Defendant’s Policy and practice are not the least restrictive means of furthering

any governmental interest.

       54.       Upon information and belief, Defendant receives federal financial assistance.

       55.       Upon information and belief, Defendant’s Policy and practice affect commerce

with foreign nations, among the several states, or with Indian tribes.




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        56.     Defendant’s Code permits them to make individualized assessments of the

proposed uses of property within the County, including Plaintiffs’ properties.

        57.     Defendant’s Policy and practice treat Plaintiffs on less than equal terms with

nonreligious assemblies.

        58.     Defendant’s Policy and practice discriminate against Plaintiffs on the basis of

religion.

        59.     Defendant’s Policy and practice totally exclude religious gatherings from a zoning

jurisdiction.

        60.     Defendant’s Policy and practice unreasonably limit Plaintiffs’ religious gatherings

within the zoning jurisdiction of Plaintiffs’ properties.

        WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.

            COUNT 2 - VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
                           FOURTEENTH AMENDMENT

        61.     Plaintiffs reallege all matters set forth above.

        62.     Plaintiffs believe that they must regularly associate with others on their property

to express their devotion to God through communal prayer, Bible reading, singing religious

songs, and sharing biblical insight.

        63.     Communal prayer, Bible reading, singing religious songs, and sharing biblical

insight is central to the exercise of the Plaintiffs’ Christian faith.




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        64.     Defendant’s Policy and practice treat religious gatherings on less than equal terms

with other similarly situated non-religious gatherings.

        65.     The County has no compelling interest for its Policy and practice.

        66.     Defendant’s Policy and practice are not narrowly tailored to achieve any

compelling interest, nor is it the least restrictive means of achieving any compelling interest.

        67.     Defendant’s Policy and practice are a violation of Plaintiffs’ rights under the

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

        WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.

              COUNT 3 – VIOLATION OF THE FLORIDA RFRA, FLA. STAT. § 761.01

        68.     Plaintiffs reallege all matters set forth above.

        69.     Defendant’s Policy and practice violate Plaintiffs’ right to the free exercise of

religion as guaranteed by the Florida RFRA, (Fla. Stat. § 761.01)

        70.     Plaintiffs’ religious beliefs are sincerely and deeply held.

        71.     Defendant’s Policy and practice impose a substantial burden on Plaintiffs’

religious exercise.

        72.     Defendant’s Policy and practice are not in furtherance of a compelling

governmental purpose.

        73.     Defendant’s Policy and practice are not the least restrictive means of furthering

any governmental interest.




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        74.       Defendant’s Policy and practice are not a narrowly tailored restriction on

Plaintiffs’ free exercise of religion.

        WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.

 COUNT 4 - VIOLATION OF FREE SPEECH UNDER THE FIRST AMENDMENT OF
                  THE UNITED STATES CONSTITUTION.

        75.       Plaintiffs reallege all matters set forth above.

        76.       Defendant’s Policy and practice target religious speech.

        77.       Defendant’s Policy and practice prohibit religious speech on property that is less

than 2.5 acres.

        78.       Defendant’s Policy and practice restrict speech based on its religious viewpoint.

        79.       Defendant’s Policy and practice restrict speech based on its religious content.

        80.       Defendant’s Policy and practice are underinclusive as they do not regulate similar

speech which does not incorporate religious activities.

        81.       Defendant’s Policy and practice are overbroad because they sweep within their

ambit protected First Amendment speech.

        82.       Defendant’s Policy and practice operate as a prior restraint on speech.

        83.       Defendant’s Code and action do not leave open ample alternative channels of

communication.

        84.       Plaintiffs’ constitutional and statutory rights have been chilled by Defendant’s

Policy and practice.


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         85.     The County does not have a compelling interest to justify its Policy and practice.

         86.     Defendant’s Policy and practice are not narrowly tailored to achieve a compelling

interest.

         87.     Defendant’s Policy and practice are not the least restrictive means of achieving a

compelling interest.

         88.     Defendant’s Policy and practice thus constitute a violation of Plaintiffs’ rights

under the Free Speech Clause of the First Amendment to the United States Constitution as

incorporated and applied to state action under the Fourteenth Amendment.

         WHEREFORE, Plaintiffs respectfully pray that this Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.

               COUNT 5 - VIOLATION OF THE RIGHT TO PEACEABLE ASSEMBLY
                           UNDER THE FIRST AMENDMENT

         89.     Plaintiffs reallege all matters set forth above.

         90.     Plaintiffs want to peaceably assemble with other persons on their property for the

purpose of praying, reading and discussing the Bible, and singing religious songs.

         91.     Defendant’s Policy and practice prohibit Plaintiffs from peaceably assembling

with others on their property for prayer, reading and discussing the Bible, and singing religious

songs.

         92.     The County does not have a compelling interest to prohibit Plaintiffs from

peaceably assembling with others on their property for prayer, Bible reading and discussion, and

singing religious songs.


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        93.     Defendant’s Policy and practice are not narrowly tailored to achieve any

compelling interest.

        94.     Defendant’s Policy and practice are not the least restrictive means of achieving

any compelling interest.

        95.     Defendant’s Policy and practice are a violation of Plaintiffs’ rights to peaceably

assemble under the First Amendment to the United States Constitution as incorporated and

applied to state action under the Fourteenth Amendment.

        WHEREFORE, Plaintiffs respectfully pray that this Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.

         COUNT 6 - VIOLATION OF THE FREE EXERCISE CLAUSE OF THE FIRST
                               AMENDMENT

        96.     Plaintiffs reallege all matters set forth above.

        97.     Plaintiffs believe that they must regularly associate with others on their property

to express their devotion to God through communal prayer, Bible reading and discussion and

singing religious songs.

        98.     Communal prayer, Bible reading and discussion, and singing religious songs is

central to the exercise of the Plaintiffs’ Christian faith.

        99.     Defendant’s Policy and practice prohibit the Plaintiffs from meeting with others

on their property to pray, read and discuss the Bible, and sing religious songs.




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        100.    Defendant’s Policy and practice prohibit the exercise of First Amendment rights

associated with communal prayer, including but not limited to, the rights of free speech, privacy,

and peaceable assembly.

        101.    Defendant’s Policy and practice impose a substantial burden on Plaintiff’s

religious beliefs and exercise.

        102.    Defendant’s Policy and practice target religious speech

        103.    Defendant’s Policy and practice are not neutral or generally applicable.

        104.    Defendant’s Code permits them to make individualized assessments of the

proposed uses of property within the County.

        105.    The County does not have a compelling interest to prohibit Plaintiffs from

exercising their religious beliefs by engaging in prayer, Bible reading and discussion and singing

religious songs with others on their property.

        106.    Defendant’s Policy and practice are not narrowly tailored to achieve any

compelling interest.

        107.    Defendant’s Policy and practice are not the least restrictive means of achieving

any compelling interest.

        108.    Defendant’s Policy and practice are a violation of Plaintiffs’ rights under the Free

Exercise Clause of the First Amendment to the United States Constitution as incorporated and

applied to state action under the Fourteenth Amendment.

        WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.

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                COUNT 7 - VIOLATION OF THE DUE PROCESS CLAUSE OF THE
                             FOURTEENTH AMENDMENT

         109.   Plaintiffs reallege all matters set forth above.

         110.   Plaintiffs believe that they must regularly associate with others on their property

to express their devotion to God through communal prayer, Bible reading and discussion and

singing religious songs.

         111.   Communal prayer, Bible reading and discussion and singing religious songs is

central to the exercise of the Plaintiffs’ Christian faith.

         112.   The County has determined that communal Bible reading and discussion, singing,

and praying amount to a church service, which is prohibited by the Zoning Code on less than 2.5

acres.

         113.   The term “church service” is not defined in the Code.

         114.   The term “church service” is unconstitutionally vague.

         115.   Defendant’s Code allows for unfettered discretion for County Zone Officials to

suppress religious gatherings as it does not define “church services.”

         116.   Defendant’s Code is a violation of Plaintiffs’ rights under the Due Process Clause

of the Fourteenth Amendment to the United States Constitution.

         WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.




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         COUNT 8 - VIOLATION OF THE ESTABLISHMENT CLAUSE OF THE FIRST
                                AMENDMENT

        117.    Plaintiffs reallege all matters set forth above.

        118.    Defendant’s Policy and practice prohibit church services on less than 2.5 acres.

        119.    Defendant’s Policy and practice are hostile to religion.

        120.    The County does not have a valid secular purpose to prohibit religious gatherings

on less than 2.5 acres.

        121.    Defendant’s Policy and practice are not neutral to religion.

        WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable and legal

relief set forth hereinafter in the prayer for relief.

                                   PRAYER FOR RELIEF

        Plaintiffs pray for judgment as follows:

        a.      That this Court preliminarily and permanently enjoin the conduct and policies of

Defendant, its officers, agents, servants, and employees which violates the First and Fourteenth

Amendments of the United States Constitution, RLUIPA, and the Florida Religious Freedom

Restoration Act;

        b.       That this Court preliminary and permanently enjoin the Defendant from

enforcing Code § 33-18(d);

        c.      That this Court render a Declaratory Judgment declaring Defendant’s Policy and

practice to be invalid and unconstitutional under the First and Fourteenth Amendments to the

United States Constitution, RLUIPA, and the Florida Religious Freedom Restoration Act;


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       d.      Grant to Plaintiffs compensatory and nominal damages;

       e.      Grant to Plaintiffs an award of their costs of litigation, including reasonable

attorneys' fees and expenses.

       f.      Grant such other and further relief as this Court deems just and proper.

Respectfully submitted this 15th day of February, 2007.


/s Joel Oster
Joel Oster                                   Benjamin Bull (Of counsel, not admitted)
Florida Bar # 659746                         Arizona Bar # 009940
Alliance Defense Fund                        Alliance Defense Fund
15192 Rosewood                               15333 E. Pima Rd., Ste. 165
Leawood, Kansas 66224                        Scottsdale, Arizona 85260
(913) 685-8000                               (480) 444-0028
(913) 685-8001 (facsimile)

ATTORNEYS FOR PLAINTIFFS




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                             VERIFICATION OF COMPLAINT

       I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that I have read the
foregoing Verified Complaint and the factual allegations thereof and that to the best of my
knowledge the facts alleged therein are true and correct.


Executed this 12th day of February, 2007.


                                             s/ Ernest Murat
                                             ERNEST MURAT
                                             Pastor of World Wide Agape Ministries




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                             VERIFICATION OF COMPLAINT

       I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that I have read the
foregoing Verified Complaint and the factual allegations thereof and that to the best of my
knowledge the facts alleged therein are true and correct.


Executed this 14th day of February, 2007.


                                             s/ David Vega
                                             David Vega
                                             Pastor of International Outreach Center




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