In Bey v. City of Tampa Code Enforcement (11th Cir. 2015), the plaintiff Nura Washington Bey (“Washington”) sued the City of Tampa and its Code Enforcement Officer, Steven Mateyka, after Mateyka cited Washington in connection with her use of property to practice her Islamic faith with “fellow Moorish nationals.”  The citation noted that Washington had displayed unpermitted signs without a building permit and that she failed to obtain a special use permit to operate a private recreational facility.  At an April 2, 2014 hearing, Washington claimed that the City’s special magistrate lacked jurisdiction to consider the citations, since she is not a “person” within the meaning of the Florida statutes but instead an “Indigenous/Aboriginal Free Moorish National.”  The special magistrate found Washington guilty of the code violations, ordered her to correct them, imposed a fine of $100 per day that the violations were not corrected, authorized the city clerk to place a lien on her property if the code violations remained uncorrected, and further authorized the City to foreclose the lien if any amount remained unpaid after 3 months.

Washington, pro se, alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), her First Amendment right to exercise her religion and to assemble, and her Fifth Amendment right to procedural due process.

RLUIPA (Equal Terms and Nondiscrimination)

Washington’s RLUIPA claims were brought under the statute’s equal terms and nondiscrimination provisions.  While the Eleventh Circuit concluded that the district court had improperly found that Washington lacked standing, it nevertheless dismissed her RLUIPA claims for failure to state a claim.  Washington’s complaint made only a conclusory statement that the defendants permitted “other religious and nonreligious assemblies and institutions to operate in residential districts” without being subject to enforcement actions.  Notably, “[t]he complaint did not identify any particular nonreligious assembly or institution or allege with any specificity how the Defendants’ application of the City of Tampa’s code to Washington’s property resulted in her religious assembly being treated on less than equal terms.”

Similarly, Washington’s nondiscrimination claim “was equally threadbare, making only the conclusory statement that the Defendants’ actions to prevent organized religious services from taking place on the Al Moroc Humanity Park property constituted discrimination against her on the basis of religion.”  The Eleventh Circuit, however, instructed that the RLUIPA claims be dismissed without prejudice to allow the self-represented Washington the opportunity to amend her complaint.

First Amendment (Free Exercise and Free Assembly)

Washington alleged that the defendants’ actions in enforcing the City’s zoning code violated her First Amendment right to exercise freely her religion and to assemble.  This claim was rejected because Washington failed to allege any facts showing how the defendants’ actions burdened her religious or associational rights.  Specifically, the Eleventh Circuit noted that “the gravamen of Washington’s First Amendment claims, as alleged, appears to be that Washington is entirely exempt from local land use regulations by virtue of the First Amendment.  Washington cites no authority to support such a proposition and we could find none.” (emphasis in original).  This claim was also dismissed without prejudice to allow Washington to amend her complaint to properly state a claim.

Fifth Amendment (Procedural Due Process)

Washington’s procedural due process claim rested on her allegation that the special magistrate lacked jurisdiction over her because she is a “Moorish National” and therefore she is not subject to the City’s zoning code.  The Eleventh Circuit was not persuaded by this argument and, in particular, Washington’s reliance upon the 1787 Treaty of Peace and Friendship between the U.S. and Morocco or the Free Moorish Zodiac Constitution.  Instead, the Eleventh Circuit determined that since Washington owned the subject property within the City, the special magistrate had jurisdiction to adjudicate code violations on Washington’s property and to assess fines if they were not corrected.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.