Case 8:17-cv-02896-WFJ-AAS Document 194 Filed 08/26/19 Page 1 of 31 PageID 6787

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ROBERT L. VAZZO, LMFT, etc., et al., )

)
Plaintiffs, )
) Case No. 8:17-cv-2896-T-02AAS
v. )
)
CITY OF TAMPA, FLORIDA, )
)
Defendant. )
)

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND

MOTION TO EXCLUDE CERTAIN OPINIONS OF DEFENDANT’S EXPERT
AND INCORPORATED MEMORANDUM OF LAW

Plaintiffs ROBERT L. VAZZO, LMFT, individually and on behalf of his patients,

and SOLI DEO GLORIA INTERNATIONAL, INC. d/b/a NEW HEARTS OUTREACH TAMPA

BAY, individually and on behalf of its members, constituents, and clients,1 pursuant to Local Rule

3.01 and the Court’s Case Management and Scheduling Order (D.183), and on the grounds stated

in the Memorandum of Law incorporated hereinbelow, move the Court as follows:

1. For judgment as a matter of law under Rule 56, Fed. R. Civ. P., on all their claims

against Defendant, the City of Tampa, Florida (“Tampa” or the “City”), in accordance with their

prayer for relief in their First Amended Verified Complaint (Dkt. 78), there being no genuine

dispute as to any material fact; and

2. To exclude certain opinions of the City’s expert Judith M. Glassgold, Psy.D under

Rule 702, Fed. R. Evid. (See infra Mem. Law pt. I.B.1.c.)

1
Plaintiff DAVID H. PICKUP, LMFT does not take part in this filing. See Plaintiffs’
Certification of Conference to Narrow Issues for Summary Judgment (Dkt. 188).
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MEMORANDUM OF LAW

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION ...........................................................................................................................1

SUMMARY JUDGMENT STANDARD .......................................................................................2

ARGUMENT ...................................................................................................................................2

1. Defendants’ Relabeling Fails as a Matter of Law. .......................................2

2. The ‘Treatment’ Label from Otto v. Boca Raton Also Fails as a Matter
of Law. .........................................................................................................6

1. The Undisputed Absence of Empirical Evidence of Harm from

“Conversion Therapy” Precludes Any Compelling Interest Justifying
the Ordinance. ..............................................................................................7

a. This Court Owes No Deference to the City’s Unfounded

Legislative Judgments in the First Amendment Context. ................7

b. The APA Report Stands Uncontradicted in Exposing the

Absence of Any Empirical Evidence of Harm from
“Conversion Therapy.” ....................................................................9

c. Dr. Glassgold’s ‘Unequivocal’ Opinion Contradicts All

Research and Should Be Excluded. ...............................................10

2. Even if the City Could Establish a Compelling Interest, the Ordinance

Is Not Narrowly Tailored Because It Is Not the Least Restrictive
Means to Address the Supposed Harms of “Conversion Therapy.” ..........12

a. Defendants’ Narrow Tailoring Burden Requires Concrete

Evidence Demonstrating Why Less Restrictive Alternatives
Would Be Unworkable. .................................................................12

b. The City Cannot Show Tampa Seriously Considered Any Less

Restrictive Alternative to Its Total Speech Ban. ............................13

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3. The Ordinance Cannot Pass Narrow Tailoring Because It Is Practically

Unenforceable by City Code Officials. ......................................................13

CONCLUSION ..............................................................................................................................25

CERTIFICATE OF SERVICE ......................................................................................................26

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TABLE OF AUTHORITIES

CASES

Adams v. Lab. Corp. of Am., 760 F.3d 1322 (11th Cir. 2014) .......................................................11

Barrett v. Walker County Sch. Dist., 872 F.3d 1209 (11th Cir. 2017)...........................................25

Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) ..............................................................12

City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) ............................................17

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) .....................................................................19,20

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) ..................................17

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) ..................................................................20

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) .........................................................................11,12

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ......................................................4,5,6,7

King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014) .......................................................3

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) .............................17

Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001)..................................................................19

Libertarian Party of Va. v. Judd, 718 F.3d 308 (4th Cir. 2013) ....................................................13

McCullen v. Coakley, 134 S. Ct. 2518 (2014) .....................................................................12,13,14

Nat’l Inst. for Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018) (“NIFLA”)..............................................................................2,3,4,6

Otto v. Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).........................................................6,7

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) .............................................................................3

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)..........................................................................2,3

Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015)....................................................................13

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) .......................................17

Sarasota Alliance For Fair Elections, Inc. v. Browning, 28 So.3d 880 (Fla. 2010) .....................21

Searcy v. Harris, 888 F.2d 1314 (11th Cir. 1989) .........................................................................17

Sorrell v. IMS Health, 131 S. Ct. 2653 (2011) .........................................................................17,19

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Wollschlaeger v. Florida, 848 F.3d 1293 (11th Cir. 2017) .......................................................3,4,8

STATUTES

Fla. Admin. Code subtitle 64B4 ....................................................................................................23

Fla. Admin. Code § 64B4-3.003 ....................................................................................................23

Fla. Admin. Code § 64B4-3.0035 ..................................................................................................24

Fla. Admin. Code § 64B4-5.001 ...............................................................................................23,24

Fla. Stat. ch. 456 ............................................................................................................................21

Fla. Stat. ch. 491 ............................................................................................................................22

Fla. Stat. § 456.003 ...................................................................................................................21,22

Fla. Stat. § 491.003 ........................................................................................................................22

Fla. Stat. § 491.004 ........................................................................................................................22

Fla. Stat. § 491.005 ...................................................................................................................22,23

Fla. Stat. § 491.009 ........................................................................................................................23

OTHER AUTHORITIES

Dictionary.com Unabridged ..........................................................................................................18

Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First
Amendment Doctrine, 63 U. Chi. L. Rev. 413 ...................................................................17

Fed. R. Civ. P. 10 .............................................................................................................................1

Fed. R. Civ. P. 56 .............................................................................................................................2

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INTRODUCTION

Much factual and legal ground has been covered in the briefing and proceedings around

Plaintiffs’ Motion for Preliminary Injunction (Dkt. 85), which remains pending before the Court,

including Plaintiffs’ Consolidated Response in Opposition to Defendant, City of Tampa’s

Objections to Magistrate’s Reports and Recommendations (Dkt. 160), and the Magistrate’s Report

and Recommendation (Dkt. 149) concluding Plaintiffs’ preliminary injunction motion should be

granted, in part. Rather than unnecessarily duplicate the substantial materials already before the

Court, Plaintiffs herein focus primarily on certain interactions of their thoroughly briefed legal

positions with the undisputed facts in the record, showing that Plaintiffs are entitled to judgment

as a matter of law.

Plaintiffs’ legal positions, as supplemented herein, are set forth in the following filings,

which are incorporated herein by this reference pursuant to Rule 10(c), Fed. R. Civ. P.:

Dkt. Document
85 Plaintiffs’ Motion for Preliminary Injunction
with Incorporated Memorandum of Law (Plaintiffs’ “MPI”)

114 Plaintiffs’ Response in Opposition to Defendants’ Motions to Dismiss and

Plaintiffs’ Reply in Support of Their Renewed Motion for Preliminary
Injunction (Plaintiffs’ “MTD Response/MPI Reply”)

138 Transcript of Preliminary Injunction Hearing (“PI Hearing”)

145 Plaintiffs’ Post-Hearing Memorandum of Law in Support of Motion for

Preliminary Injunction (Plaintiffs’ “Post-Hearing MPI Memorandum”)

147 Plaintiffs’ Objections to Amicus Curiae Equality Florida’s Supplemental

Amicus Brief (Plaintiffs’ “Objections to Supplemental Amicus Brief”)

160 Plaintiffs’ Consolidated Response in Opposition to Defendant, City of

Tampa’s Objections to Magistrate’s Reports and Recommendations
(Plaintiffs’ “R&R Objection Response”)

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The following additional filings are also referenced herein:

Dkt. Document
149 Report and Recommendation (“MPI R&R”)

155 Defendant, City of Tampa’s, Objections to Magistrate’s Report and

Recommendation on Motion to Dismiss (“MTD Objections”)

156 Defendant, City of Tampa’s, Objections to Magistrate’s Report and

Recommendation Regarding Plaintiff’s Motion for Preliminary Injunction
(“MPI Objections”)

193 Plaintiffs’ Statement of Undisputed Facts in Support of Motion for Summary

Judgment (Plaintiffs’ “SUF”)

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment 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.

ARGUMENT

PLAINTIFFS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW

ON THEIR CONSTITUTIONAL CLAIMS.

Binding Precedent Forecloses the City’s Effort to Evade Strict

Scrutiny by Relabeling Vazzo’s Speech as ‘Conduct’ or
‘Professional Speech.’

1. Defendants’ Relabeling Fails as a Matter of Law.

As shown in Plaintiffs’ prior briefing, the Supreme Court’s NIFLA decision is only the

latest of a line of cases prohibiting the government from simply relabeling the speech of

professionals as a pretext to restrict their speech with less scrutiny. (See, e.g., R&R Obj. Resp. 21–

23 (citing, inter alia, Nat’l Inst. for Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371–

72 (2018) (hereinafter, “NIFLA”); MTD Resp./MTD Reply 2–9.) NIFLA affirmed the “stringent

standard” of Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), mandating strict scrutiny for all

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content-based restrictions on speech, and condemned the invidious discrimination inherent in bans

on the speech of licensed professionals. 138 S. Ct. at 2371 (“As a general matter, such laws ‘are

presumptively unconstitutional and may be justified only if the government proves that they are

narrowly tailored to serve compelling state interests.’”).

The NIFLA Court expressly rejected the erroneous conclusion that content-based

regulations of so-called “professional speech” do not receive strict scrutiny, abrogating by name

the two principal legal authorities upon which the Tampa ordinance was expressly based—

King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014), and Pickup v. Brown, 740 F.3d 1208

(9th Cir. 2014):

Some Courts of Appeals have recognized “professional speech” as

a separate category of speech that is subject to different rules. See,
e.g., [King; Pickup] . . . . So defined, these courts except professional
speech from the rule that content-based regulations of speech are
subject to strict scrutiny.

But this Court has not recognized “professional speech” as a

separate category of speech. Speech is not unprotected merely
because it is uttered by “professionals.”

NIFLA, 138 S. Ct. at 2371-72 (emphasis added). (Cf. SUF ¶ 8.) The NIFLA Court further

admonished that allowing the government to lessen First Amendment protections for professionals

by reclassifying their speech would eviscerate the protections afforded to doctors, lawyers, nurses,

mental health professionals, and many others: “[T]hat gives the States unfettered power to reduce

a group’s First Amendment rights by simply imposing a licensing requirement. States cannot

choose the protection that speech receives under the First Amendment, as that would give

them a powerful tool to impose invidious discrimination on disfavored subjects.” 138 S. Ct. at

2372.

Even before NIFLA, the Eleventh Circuit’s en banc decision in Wollschlaeger v. Florida

rejected regulation of speech by relabeling because “characterizing speech as conduct is a

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dubious constitutional enterprise.” 848 F.3d 1293, 1309 (11th Cir. 2017) (emphasis added).

“Speech is speech, and it must be analyzed as such for purposes of the First Amendment.” Id. at

1307 (citation and internal quotation marks omitted). Thus, whether the City tries to obtain rational

basis review by labeling Vazzo’s speech ‘conduct” (see, e.g., MTD Objs. 3–4; MPI Objs. 5–10),

or tries to obtain some kind of intermediate scrutiny by labeling Vazzo’s counseling ‘professional

speech’ (see, e.g., SUF ¶ 8), binding precedent requires this Court to reject the City’s labeling

game.

Still earlier, almost a decade before NIFLA, the Supreme Court solidified the fully

protected status of professionals’ speech in Holder v. Humanitarian Law Project, 561 U.S. 1

(2010). The Holder plaintiffs, including a former judge and a physician, brought a First

Amendment challenge to a federal statute prohibiting the provision of “‘material support or

resources’” to foreign terrorist organizations. 561 U.S. at 7–8, 10. The plaintiffs wanted to provide

support for the non-terroristic activities of two such organizations, “the PKK and LTTE, in the

form of . . . legal training, and political advocacy . . . .” 561 U.S. at 10. The Court rejected the

plaintiffs’ claim that the statute banned pure political speech because plaintiffs remained free to

speak and write about the PKK and LTTE, and to advocate for them. Id. at 25–26. The Court also

rejected, however, the government’s argument that the statute prohibited only “conduct, not

speech,” “and only incidentally burdens expression.” 561 U.S. at 26. The Court reasoned,

[the statute] regulates speech on the basis of its content. Plaintiffs

want to speak to the PKK and LTTE, and whether they may do
so under [the statute] depends on what they say. If plaintiffs’
speech to those groups imparts a “specific skill” or communicates
advice derived from “specialized knowledge” . . . then it is barred.

Id. at 27 (emphasis added).

The government in Holder (evocative of Tampa here) nevertheless argued that intermediate

scrutiny should apply to the Court’s First Amendment review of the statute “because it generally

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functions as a regulation of conduct.” Id at 27. The Supreme Court rejected that argument, too,

because even though the statute “may be described as directed at conduct, . . . as applied to

plaintiffs the conduct triggering coverage under the statute consists of communicating a message.”

Id. at 28. In concluding that strict scrutiny applied, the Court reasoned,

The First Amendment issue before us is more refined than either

plaintiffs or the Government would have it. It is not whether the
Government may prohibit pure political speech, or may prohibit
material support in the form of conduct. It is instead whether the
Government may prohibit what plaintiffs want to do—provide
material support to the PKK and LTTE in the form of speech.

Id. at 28.

On the issue of whether strict scrutiny applies, the Holder Court’s analysis is controlling

because the facts are analogous.2 First, the issue here can be framed nearly identically to the issue

in Holder: whether Tampa may prohibit what Vazzo wants to do—provide sexual and gender

identity counseling “in the form of speech.” Second, as in Holder, Vazzo wants to use his speech

to impart skills requested by his minor clients (reducing or eliminating unwanted same-sex

attractions or gender conflicts) or communicate advice derived from his specialized knowledge.

Third, as in Holder, the Tampa ordinance ostensibly allows Vazzo to write and speak about SOCE,

and to advocate its benefits (see, e.g., MTD Objs. 3–4; MPI Objs. 9, 11); but that is irrelevant, as

in Holder, to the question before this Court (whether Tampa may prohibit what Doyle wants to

do). As correctly observed by the Magistrate, the ordinance prohibits Plaintiff counselors from

2
On the issue of whether the content-based regulation satisfied strict scrutiny, the Holder
analysis is not controlling here because, unlike Tampa, the government in Holder narrowly tailored
its statute based on empirical consideration of the harms sought to be avoided by enacting the
statute. See 561 U.S. at 29 (“Whether foreign terrorist organizations meaningfully segregate
support of their legitimate activities from support of terrorism is an empirical question.”). (See
infra pt. I.B.1.)

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“using ‘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,’” and consequently, prohibits Plaintiff New Hearts Outreach from

referring minor clients to the counselor Plaintiffs. (MTD R&R 3–4 (emphasis added) (quoting

FAVC ¶ 65); MPI R&R 3 (same).) Thus, under the binding precedent of Holder, Tampa cannot

avoid strict scrutiny by relabeling Vazzo’s speech as ‘conduct.’

2. The ‘Treatment’ Label from Otto v. Boca Raton Also

Fails as a Matter of Law.

This Court should also reject the alternative labeling of speech as “treatment” in the

Southern District of Florida’s order in Otto v. Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019)

(denying preliminary injunction against city and county “conversion therapy” bans). (Cf. MPI

Objs. 5–10 (“”[T]he only speech barred by the Ordinance is ‘the manner of delivering the

treatment.’” (quoting Otto, 353 F. Supp. 3d at 1256).) In Otto, the district court disregarded

NIFLA’s admonition against applying “different rules” to speech “uttered by ‘professionals,’” 138

S. Ct. at 2371–72, and labored to recast the counselor-plaintiffs’ speech as “treatment” speech (i.e.,

not really speech) with diminished First Amendment protection. 353 F. Supp. 3d at 1255–58. Thus,

the Otto court downgraded the counselors’ speech based on the “function” of the speech:

This case presents facts in which speech is not always expressive,

and thus warrants less scrutiny. Cf. [United States v.] O’Brien, 391
U.S. 367 (1968). Plaintiffs’ words serve a function; their words
constitute an act of therapy with their minor clients, which makes
Plaintiffs’ speech different from the protected dialogues in
Wollschlaeger and NIFLA, and from highly protected, political
speech in the metaphoric or literal “public square.”

353 F. Supp. 3d at 1257. In Holder, however, the Supreme Court rejected this very rationale,

holding, “O’Brien does not provide the applicable standard for reviewing a content-based

regulation of speech.” 561 U.S. at 28.

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Thus, the Holder analysis (supra pt. I.A.1) exposes the Otto court’s error, and precludes

any legitimate reliance on the Otto findings and conclusions. “The Government is wrong that the

only thing actually at issue in this litigation is conduct . . . .” 561 U.S. at 27. “[Vazzo] wants to

speak to [his minor clients], and whether [he] may do so under [the ordinance] depends on what

[he] say[s].” Id. If Vazzo’s speech “imparts a ‘specific skill’ or communicates advice derived from

‘specialized knowledge’—for example, [strategies to reduce or eliminate unwanted same-sex

attractions, or for gaining comfort with biological sex]—then it is barred.” See id. “On the other

hand, [Vazzo’s] speech is not barred if it imparts only general or unspecialized knowledge”—for

example, that another professional can communicate such strategies to the client and that the client

should seek out that other professional. See id.

Holder, thus, eviscerates the City’s rationalization that the ordinance does not regulate

speech because it ostensibly allows Vazzo to talk about and recommend “conversion therapy.”

(MPI Objs. 5–10.) Under Holder, Tampa’s seeming benevolence in tossing Vazzo the table scraps

of “general or unspecialized” speech cannot excuse the City’s censoring what Vazzo wants to say

to help his clients.

The City Cannot Satisfy Its Strict Scrutiny Burden Because It Cannot Show Either a

Compelling Interest Supporting the Ordinance or that the Ordinance Is the Least Restrictive

Means.

1. The Undisputed Absence of Empirical Evidence of Harm

from “Conversion Therapy” Precludes Any Compelling
Interest Justifying the Ordinance.

a. This Court Owes No Deference to the City’s

Unfounded Legislative Judgments in the First
Amendment Context.

As shown in Plaintiffs’ MPI and subsequent briefing, the City is not entitled to deference

in making speech-restrictive determinations. (See, e.g., MTD Resp./MPI Reply 16–21.) Rather,

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under strict scrutiny, the government must support a content-based speech restriction with

empirical or other concrete evidence of genuine, identifiable harm, not merely the anecdotes,

conjecture, and supposition of proponents. (MTD Resp./MPI Reply 16–21.) The City has utterly

failed to identify empirical or concrete evidence of genuine harm justifying the ordinance, and

therefore cannot satisfy the compelling interest prong of strict scrutiny.

This absence of empirical evidence of harm, now beyond dispute, is an insurmountable

obstacle to the City’s narrow tailoring burdens. As shown in Plaintiffs’ MPI briefing, it is not

Plaintiffs’ burden to prove the effectiveness Vazzo’s talk therapy, or of “conversion therapy” or

SOCE in general; rather, it is the City’s burden to show empirical or concrete evidence of harm

justifying Tampa’s ordinance. (MTD Resp./MPI Reply 16; R&R Objs. Resp. 25–26.) Whatever

general interest Tampa may rightfully proclaim in the health and safety of minors in the City,

Tampa has no legitimate—let alone compelling—interest in protecting minors from the merely

speculative narrative of harm crafted into position statements and uncritically adopted by the City

Council. (MPI 13–17; MTD Resp./MPI Reply 16–21.)

In the binding Wollschlaeger decision, holding that provisions of a Florida statute

prohibiting physicians’ speech about gun ownership did not satisfy even intermediate scrutiny, the

en banc Eleventh Circuit explained that purported governmental interests “[a]t an abstract level of

generality” are not enough to justify “restrict[ing] the speech of doctors and medical professionals

on a certain subject.” 848 F.3d at 1316. Thus, Florida’s undoubted “substantial interest” in

“regulat[ing] the medical profession in order to protect the public” was nonetheless not specific

enough to justify a speech restriction on professionals where there was no evidence of a harm to

be remedied beyond “six anecdotes.” 848 F.3d at 1316. The legislative record of Tampa’s

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ordinance is no better. (SUF ¶ 10–41.) Accordingly, Defendants cannot satisfy the interest prong

of their narrow tailoring burden.

b. The APA Report Stands Uncontradicted in

Exposing the Absence of Any Empirical Evidence
of Harm from “Conversion Therapy.”

In Plaintiffs’ SUF and prior briefing, they painstakingly expose the recurring, unequivocal

admissions of the 2009 APA Report—ostensibly a principal authority supporting Tampa’s

ordinance—that there is no empirical evidence of harm from “conversion therapy.” (SUF ¶¶ 11–

14; R&R Objs. Resp. 7–18.) Tampa has never rebutted this absence of empirical evidence of harm,

perhaps best summarized in this single passage from the APA Report:

[T]here is a dearth of scientifically sound research on the safety

of SOCE. Early and recent research studies provide no clear
indication of the prevalence of harmful outcomes among people
who have undergone efforts to change their sexual orientation or the
frequency of occurrence of harm because no study to date of
adequate scientific rigor has been explicitly designed to do so. Thus,
we cannot conclude how likely it is that harm will occur from
SOCE.

(APA Rep. 42 (emphasis added).) Nor has the City rebutted any of the subsequent authorities

affirming the APA Report’s conclusions, and revealing the even greater evidence void on gender

identity issues in minors. (SUF ¶ 11 (quoting SAMHSA Report PageID 568 (“No new studies

have been published that would change the conclusions reached in the APA Taskforce’s 2009

review.” (emphasis added)), PageID 569 (“[N]o research demonstrating the harms of

conversion therapy with gender minority youth has been published . . . .” (emphasis added))),

SUF ¶ 19 (quoting AACAP Statement PageID 521 (“There have been no randomized controlled

trials of any treatment. . . .” (emphasis added)), PageID 522 (“Given the lack of empirical

evidence . . . further research is needed on predictors of persistence and desistence of childhood

gender discordance as well as the long-term risks and benefits of intervention . . . .” (emphasis

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added))), SUF ¶ 21 (quoting APA TGNC Guidelines PageID 2759 (“[B]ecause no approach to

working with TGNC children has been adequately, empirically validated, consensus does not

exist . . . .” (emphasis added))).) To be sure, the City cannot rebut its own admission that Tampa

had no way to quantify the purported risk of harm the ordinance claims to be posed by “conversion

therapy.” (SUF ¶ 14 (quoting ordinance sponsor, Councilman Guido Maniscalco, “No, nobody

knows.” (emphasis added)).)

Even the later research cited in the Declaration of the City’s expert Dr. Glassgold fails to

add any evidence to the empirical record that could rebut the above conclusions of the APA Report,

SAMHSA Report, AACAP Statement, or APA TGNC Guidelines, up to and including the most

recent study Dr. Glassgold cited, published in 2018 by Ryan, et al. (Dkt. 142-3 Page ID 3234

(“[C]ausal claims cannot be made.” (emphasis added)). (Glassgold 134:18–155:5, 175:15–

180:18; Ex. 28 (Dkt. 192-3) ¶ 17 at 7–8, 8 n.7, Ex. B; Exs. 29–32 (Dkts. 192-4 to 192-7).)

c. Dr. Glassgold’s ‘Unequivocal’ Opinion

Contradicts All Research and Should Be
Excluded.

Given the unequivocally lacking empirical evidence to support any causal claims of harm

from SOCE or “conversion therapy,” as shown above, including from authorities co-authored by

Dr. Glassgold, coordinated by Dr. Glassgold, and cited by Dr. Glassgold, Dr. Glassgold cannot

justify her opinion that states the exact opposite: “[C]urrent scientific evidence, including those

cited in the [ordinance] findings, confirm unequivocally that conversion therapy (CT) in any form

is ineffective and harmful.” (Glassgold Decl. (Dkt. 192-3) ¶ 14; cf. APA Rep. 90 (“[R]esearch on

SOCE . . . has not answered basic questions of whether it is safe or effective and for whom”

(emphasis added).) That is, Dr. Glassgold cannot explain, by any measure of reason or logic, why

her opinion for the Court in this litigation is antithetical to the conclusions of the APA Report she

co-authored, the SAMHSA report she coordinated, and the other studies she cited in her own

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declaration. (Glassgold 182:18–188:2.) The same is true for all of Dr. Glassgold’s opinions

ascribing “significant” risk to SOCE or “conversion therapy” (e.g., Glassgold Decl. (Dkt. 192-3)

¶¶ 16, 36, 39, 42, 45, 47, 48, 50, 51, 76, 77) given that “research studies provide no clear

indication of the prevalence of harmful outcomes . . . .” (APA Rep. 42; SUF ¶¶ 11–14, 19–21,

36–40.) To say Dr. Glassgold overplayed her hand is an understatement. This Court should exclude

her unsupportable opinions.

The Eleventh Circuit explained the district court’s gatekeeping rule under Federal Rule of

Evidence 702:

In Daubert, the Supreme Court explained that trial courts must act
as gatekeepers tasked with screening out speculative, unreliable
expert testimony. . . . Later, in Kumho, the Court explained that the
gatekeeping function governs all expert testimony based on
scientific technical, or other specialized knowledge, not just
scientific testimony. The Court also stressed that the factors
identified in Daubert do not constitute a definitive checklist or test.
. . . Furthermore, Kumho emphasized that the goal of gatekeeping
is to ensure that an expert employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert
in the relevant field.

Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1327 (11th Cir. 2014) (emphasis added) (internal

quotation marks and citations omitted).

The Supreme Court earlier held in Gen. Elec. Co. v. Joiner:

“nothing in either Daubert or the Federal Rules of Evidence requires

a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert. A court may
conclude that there is simply too great an analytical gap between
the data and the opinion proffered.”

522 U.S. 136, 146 (1997) (emphasis added). At issue in Joiner was a district court’s exclusion of

the plaintiff’s experts, having concluded that the studies cited by the experts did not support their

opinions. Id. at 139–140. The Supreme Court concluded, “it was within the District Court's

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discretion to conclude that the studies upon which the experts relied were not sufficient, whether

individually or in combination, to support their conclusions . . . .” Id. at 146–47.

These binding precedents require this Court to reject all unreliable, intellectually

unrigorous ipse dixit testimony of an expert witnesses which is not supported by the authorities

cited by the witness. The identified opinions of Dr. Glassgold must be excluded under this

standard. The analytical gap between all the authorities identified by the ordinance and Dr.

Glassgold—that the empirical evidence supports no conclusions about SOCE efficacy or safety—

and Dr. Glassgold’s litigation opinion—that “current scientific evidence, including those cited in

the [ordinance] findings, confirm unequivocally that conversion therapy (CT) in any form is

ineffective and harmful”—is far too great for this Court to take the opinion seriously. See Joiner,

522 U.S. at 146.

2. Even if the City Could Establish a Compelling Interest,

the Ordinance Is Not Narrowly Tailored Because It Is
Not the Least Restrictive Means to Address the Supposed
Harms of “Conversion Therapy.”

a. Defendants’ Narrow Tailoring Burden Requires

Concrete Evidence Demonstrating Why Less
Restrictive Alternatives Would Be Unworkable.

As shown in Plaintiffs’ MPI briefing (MPI 17–19; MTD Resp./MPI Reply 21–27),

Tampa’s content-based speech ban must be the least restrictive means to satisfy narrow tailoring,

under the most exacting scrutiny. Thus, even if the City could establish a sufficiently compelling

interest (it cannot), the City must also show Tampa “seriously undertook to address the problem

with less intrusive tools readily available to it.” McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014)

(emphasis added). The City “would have to show either that substantially less-restrictive

alternatives were tried and failed, or that the alternatives were closely examined and ruled

out for good reason.” Bruni v. City of Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016); see also

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Reynolds v. Middleton, 779 F.3d 222, 229 (4th Cir. 2015) (requiring “government to present actual

evidence supporting its assertion that a restriction on speech does not burden substantially more

speech than necessary; argument unsupported by the evidence will not suffice to carry the

government’s burden”); id. at 231 (“As the Court explained in McCullen . . . the burden of

proving narrow tailoring requires the [government] to prove that it actually tried other

methods to address the problem.”); Libertarian Party of Va. v. Judd, 718 F.3d 308, 318 (4th Cir.

2013) (holding government failed narrow tailoring under strict scrutiny where it “produced no

concrete evidence of persuasive force explaining why the plaintiffs' proposed solution, manifestly

less restrictive of their First Amendment rights, would be unworkable or impracticable.”) (All bold

emphases added.).

b. The City Cannot Show Tampa Seriously

Considered Any Less Restrictive Alternative to
Its Total Speech Ban.

The City fails narrow tailoring primarily because Tampa did not seriously (or at all)

consider any less restrictive alternative to its total speech ban. The ordinance’s legislative record

contains no evidence that the City Council considered any alternative to the ordinance’s speech

restrictions. (SUF ¶ 41 (quoting ordinance sponsor, Maniscalco 100:14-102:9 (“We never debated

anything else because we specifically wanted the complete ban.”)).) Thus, the City does not come

close to proving Tampa seriously considered any less restrictive alternative to the ordinance, or

rule out any alternative for good reason. See Bruni, 824 F.3d at 370.

3. The Ordinance Cannot Pass Narrow Tailoring Because

It Is Practically Unenforceable by City Code Officials.

The City also fails narrow tailoring because the ordinance cannot, as a practical matter, be

enforced to remedy any purported harms the City claims to have in view. As the Supreme Court

taught in McCullen, the First Amendment “demand[s] a close fit between ends and means.” 134

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S. Ct. at 2534. The inability to enforce the ordinance through its code officials forecloses the

required fit between the ordinance and the City’s purported interest in enacting it.

Tampa’s code officials are objectively ill-equipped to investigate and make determinations

about appropriate mental health therapeutic practices. The City’s code enforcement officials tasked

with enforcing the ordinance need only a high school diploma or equivalent for the position, and

receive no training in marriage and family therapy or mental health counseling. (SUF ¶ 42.) Code

officials must know what the ordinance prohibits in order to enforce it, and to fulfill their

responsibilities to issue notices of violation. (SUF ¶ 42.) But the officials are not trained to

distinguish “conversion therapy” from other therapy, or qualified to tell the difference between

“sexual orientation” and “gender identity,” or how to know, for example, whether a child

experiencing gender confusion has transitioned to a cross-gender identity or is still exploring the

possibility. (SUF ¶ 42.) Tampa code officials do not enforce any other ordinances regulating the

therapies offered by mental health professionals, and have no experience or expertise in enforcing

such regulations. (SUF ¶ 43.)

Moreover, there is no evidence of any trained or qualified professional upstream from code

enforcement personnel to preside over a final determination, such as a board of professional

standards, or even a single reviewing professional with appropriate training or licensure. Tampa

code officials are instructed to refer all potential “conversion therapy” cases to the City’s legal

department for handling. (SUF ¶ 44.) The City’s lawyer responsible for overseeing “conversion

therapy” enforcement, however, cannot define the term “gender identity” as used in the ordinance,

and would look to the dictionary to interpret the ordinance. (SUF ¶ 44.) The ultimate trier of

ordinance violations is a City-appointed special master, but the City does not know whether any

special master on its roster is a licensed mental health practitioner, and the City has no plans to

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appoint a special master with those credentials. (SUF ¶ 44.) Such a fatally flawed process could

never satisfy the constitutional “fit” requirement of narrow tailoring.

To be sure, the testimony of the City’s expert Dr. Spack illustrates the utter incompatibility

of code enforcers with the regulation of mental health professionals. According to Dr. Spack, there

is a “frustrating group” he sees “that calls themselves gender queer,” and he calls them “gender

fluid”:

It's a person who doesn't commit to being either male or

female. But that may take different -- manifest, for example, it
could be someone who just sees themselves somewhere in the
spectrum and it changes from day-to-day, and someone who sees
themselves very much male one day and very much female the
next.

....

The thing I don't know, and I wouldn't be able to tell you

-- I don't know if I'll live long enough to find out -- is how do these
people end up? Are they on a path towards one or the other or
not?

(Spack 38:6–40:13 (emphasis added).) When asked whether “gender fluid” could be categorized

as a gender identity, Dr. Spack answered, “If it’s ill defined and especially moving, a moving

target, I would call it a form of gender identity.” (Spack 39:25–40:8.) If Dr. Spack could not easily

determine the gender identity of a “gender fluid” person, or whether “they [are] on a path towards

one or the other or not,” then no Tampa code official is qualified to make that determination for

purposes of determining whether a change of gender identity is being attempted.

As another illustration, the guidelines on gender identity issues lauded by Dr. Spack

recommend against transition for prepubertal children who exhibit “cross-gender behavior, but not

so much as to qualify as being transgender,” and Dr. Spack testified that the determination of

whether the child qualifies as being transgender must be made by “incredibly skillful

psychologists” and not non-psychologists without education beyond high school:

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Q . . . . Would a non-psychologist, let’s say a person

with a high school diploma, for example, be able to make that
determination that you described?

A No.

(Spack 75:15–19 (emphasis added); SUF ¶ 37, 38.)

The ordinance, however, allows unlimited affirmation of this contra-indicated transition,

while prohibiting counseling to help the child embrace or align with his or her biological sex if

such alignment is construed as a change or attempted change of gender identity. The glaringly

obvious problem, then, is that no Tampa code official or upstream adjudicator is qualified to make

that determination. Moreover, the ordinance endorses affirmation of contra-indicated transition in

the direction of cross-gender identity, but prohibits affirmation in the other direction—towards

biological gender identity—even though that is a recognized approach to alleviating gender

dysphoria. (Spack 116:25–123:17, Ex. 33 (Dkt. 192-8).)

Tampa Intended and Interprets the Ordinance to Prohibit

Speech of a Particular Viewpoint.

Not only does the ordinance text betray the City’s intent to censor speech, it also betrays

the City’s intent to censor a particular viewpoint. As found by the Magistrate,

the City adopted Ordinance 2017-47 because the City disagreed

with the viewpoint mental health counselors express during SOCE
counseling. (See also Doc. 24-1, p. 6) (prohibiting counseling aimed
at “chang[ing] . . . gender identity, or gender expression” while
allowing counseling “that provides support and assistance to a
person undergoing gender transition”) . . . .

(MPI R&R 30 (citing ordinance text); see also MPI 7–11; MTD Resp./MPI Reply 11–13; R&R

Objs. Resp. 32–38.) The City’s enforcement attorney confirmed the ordinance punishes a

counselor’s viewpoint that affirms a client’s goal to change sexual orientation or gender identity.

(SUF ¶ 9.) The Magistrate correctly discerned that, given the ordinance’s expressly allowing the

affirmation of a client’s “transition” (change) from the client’s biological gender, the City’s

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interpretation otherwise disallowing the affirmation of a client’s change of gender identity means

that the counseling viewpoint affirming transition-change (away from biological gender) is

allowed, while the counseling viewpoint affirming return-change (to biological gender) is

prohibited.

A viewpoint-based restriction on private speech has never been upheld by the Supreme

Court or any court. Indeed, a finding of viewpoint discrimination is dispositive. See Sorrell v. IMS

Health, 131 S. Ct. 2653, 2667 (2011). “It is axiomatic that the government may not regulate speech

based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 828 (1995). “When the government targets not subject matter, but

particular views taken by speakers on a subject, the violation of the First Amendment is all the

more blatant.” Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See,

e.g., Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (“‘the First

Amendment forbids the government to regulate speech in ways that favor some viewpoints or

ideas at the expense of others’”) (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S.

789, 804 (1984)); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)

(“the government violates the First Amendment when it denies access to a speaker solely to

suppress the point of view he espouses”); see also Searcy v. Harris, 888 F.2d 1314, 1324 (11th

Cir. 1989) (the government “may not discriminate between speakers who will speak on the topic

merely because it disagrees with their views”), id. at 1325 (“The prohibition against viewpoint

discrimination is firmly embedded in first amendment analysis.” (emphasis added)); Elena

Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment

Doctrine, 63 U. Chi. L. Rev. 413, 444 (“the Court almost always rigorously reviews and then

invalidates regulations based on viewpoint”).

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The ordinance is a textbook example of viewpoint discrimination. On its face, the

ordinance purports to allow licensed therapists to discuss the subject of sexual orientation, but

explicitly prohibits a particular viewpoint on that subject, namely that unwanted same-sex

attraction can be reduced or eliminated to the benefit of the client, if the client so desires. The

ordinance defines “conversion therapy” in such a way that it is clear that the City is targeting only

one viewpoint, i.e., SOCE that seeks to “eliminate or reduce sexual or romantic attractions or

feelings toward individuals of the same gender or sex.” (Ordinance PageID 348 (emphasis

added).) Similarly, the ordinance encourages counselors to affirm and facilitate same-sex

attractions when minor clients are questioning such feelings, but prohibits counselors from

affirming minor clients’ desires and goals to change unwanted same-sex attractions, even when

the minor clients themselves request and seek that outcome. (Id.)

The ordinance also purports to prohibit licensed counselors from engaging in any practice

that seeks to change behaviors, gender identity, or gender expression. (Id.) But the plain text of the

ordinance demonstrates that it only prohibits such counseling for minor clients who wish to reduce

or eliminate behaviors, identity, or expressions that differ from their biological sex. (Id.) That this

is true cannot be questioned because the ordinance specifically exempts counseling that “provides

support and assistance to a person undergoing gender transition.” (Id.). To undergo “gender

transition,” one has to be—at minimum—seeking to change from one gender to the other. Change

is the definition of transition. See Dictionary.com Unabridged, https://www.dictionary.com/

browse/transition?s=t (last visited Aug. 26, 2019) (“movement, passage, or change from one

position, state, stage, subject, concept, etc., to another; change” (emphasis added).) So, under the

ordinance, if a minor client wants to undergo irreversible hormone therapy or surgery to alter his

appearance or genitalia, the City has no problem with a counselor providing counseling to assist

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in that change. (See, e.g., SAMHSA Rep. PageID 557.) But, if a minor client merely wants to

speak with a counselor about unwanted feelings concerning her gender identity or expression, the

counselor is absolutely prohibited from engaging in such counseling if it aids the minor in reducing

unwanted cross-gender identity, behaviors, or expressions. There can be no question that this is

viewpoint discrimination.

The Supreme Court and several other courts have invalidated regulations of professional

speech as unconstitutional viewpoint discrimination. See Sorrell, 131 S. Ct. 2653 (2011); Legal

Servs. Corp. v. Valazquez, 531 U.S. 533 (2001); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).

In these cases, the courts recognized the axiomatic truth that the government is not permitted to

impose its viewpoint on speakers, even professional speakers subject to licensing requirements

and regulation.

In Velazquez, the Court addressed a federal funding limitation on legal aid attorneys that

operated in the same viewpoint-based manner as the Ordinances. Velazquez, 531 U.S. at 537–38.

The law provided that attorneys could not receive funds if they challenged welfare laws. The Court

invalidated the law as viewpoint discriminatory, because it had the effect of prohibiting “advice or

argumentation that existing welfare laws are unconstitutional or unlawful,” and thereby excluded

certain “vital theories and ideas” from the lawyers’ representation. Id. at 547–49.

In Conant, the Ninth Circuit invalidated a federal policy that punished physicians for

communicating with their patients about the benefits or options of marijuana as a potential

treatment. Conant, 309 F.3d at 633. The Ninth Circuit noted that the doctor-patient relationship is

entitled to robust First Amendment protection:

An integral component of the practice of medicine is the

communication between a doctor and a patient. Physicians must be
able to speak frankly and openly to patients. That need has been

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recognized by courts through the application of the common law

doctor-patient privilege.

Id. at 636 (emphasis added). Far from being a First Amendment orphan, such professional speech

“may be entitled to the strongest protection our Constitution has to offer.” Id. at 637 (quoting

Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)). The ban impermissibly regulated

physician speech based on viewpoint:

The government’s policy in this case seeks to punish physicians on

the basis of the content of doctor-patient communications. Only
doctor-patient conversations that include discussions of the medical
use of marijuana trigger the policy. Moreover, the policy does not
merely prohibit the discussion of marijuana; it condemns
expression of a particular viewpoint, i.e., that medical
marijuana would likely help a specific patient. Such
condemnation of particular views is especially troubling in the First
Amendment context.

Id. at 637–38 (emphasis added). The court rejected as inadequate the government’s justification

that the policy prevented clients from engaging in harmful behavior, and permanently enjoined

enforcement of the policy. Id. at 638–39.

The ordinance here operates almost identically to the federal policy enjoined in Conant.

Just as the policy in Conant prohibited physicians from speaking about the benefits of marijuana

to a suffering patient, so does the ordinance prohibit counselors from speaking about the potential

for reduction or elimination of unwanted same-sex attractions, or desires to “transition to another

gender” (or de-transition to biological sex) that might benefit a client distressed by the unwanted

desires. In both cases, the laws express a preference for the message the government approves and

disdain attached to punishment for the viewpoint the government abhors. As was true of the law

in Conant, the ordinance here should be invalidated as unconstitutional viewpoint discrimination.

It is not enough that the ordinance purports to protect a therapist’s right to recommend or

refer clients out for SOCE. (Ordinance PageID 347.) In reality, as soon as a therapist informs a

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client that the talk therapy recommended by the therapist as beneficial and good is nonetheless

illegal, the credibility of the therapist’s viewpoint is immediately undermined, to the injury of the

therapist’s reputation and, more importantly, the therapeutic alliance. To be sure, this undermining

of the therapist’s viewpoint is intended, and intentionally discriminatory.

PLAINTIFFS ARE ENTITLED TO JUDGMENT AS A

MATTER OF LAW ON THEIR PRIOR RESTRAINT,
VAGUENESS, AND OVERBREADTH CLAIMS.

Plaintiffs are entitled to judgment as a matter of law on their vagueness, overbreadth, and

prior restraint claims on the legal grounds presented in their MPI at 20–22 and R&R Objs. Resp.

at 38, and as concluded by the Magistrate in the MPI R&R at 30–32.

PLAINTIFFS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW

ON THEIR IMPLIED PREEMPTION CLAIM.

As shown in Plaintiffs’ MPI briefing, the Tampa ordinance is ultra vires and void ab initio

as legislation on a subject matter impliedly preempted to the State of Florida. (MPI 22–24; MTD

Resp./MPI Reply 40–43.) The proper inquiry is whether the State has “preempted a particular

subject area,” not one individual form of counseling. Sarasota Alliance For Fair Elections, Inc.

v. Browning, 28 So.3d 880, 886 (Fla. 2010) (emphasis added)). Here, the State of Florida’s

regulatory scheme, which covers all licensed medical and mental health professionals in the State,

is pervasive and evidences an intent to be the sole regulator of these licensed professionals in the

State. Tampa’s ordinance unlawfully invades Florida’s pervasive regulatory scheme.

Florida Statutes Chapter 456 sets forth the general provisions related to the regulation and

licensure of health professions and occupations. Specifically, in Fla. Stat. § 456.003(2)(b) the

Legislature identified the absence of local regulation as a justification for the State to authorize the

State Department of Health to establish boards and regulatory bodies to ensure that such

professions are regulated to protect the health, safety and welfare of the public:

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(2) The Legislature further believes that such professions

shall be regulated only for the preservation of the health, safety,
and welfare of the public under the police powers of the state.
Such professions shall be regulated when:

....

(b) The public is not effectively protected by other means,

including, but not limited to, other state statutes, local ordinances,
or federal legislation.

Fla. Stat. § 456.003. This statement of legislative intent justifies the state's entry into, and

occupation of, the field of health professional regulation, because no preexisting local ordinances

were there to protect the public. It does not invite Florida cities to subsequently enter the field with

their own regulations.

Chapter 491 more specifically regulates professionals in clinical social work, marriage

and family therapy, and mental health counseling. For example, § 491.003 defines the “‘practice

of marriage and family therapy,’” identifies who “[m]arriage and family therapy may be rendered

to,” and restricts the “use of specific methods, techniques, or modalities within the practice of

marriage and family therapy . . . to marriage and family therapists appropriately trained in the use

of such methods, techniques, or modalities.” Fla. Stat. § 491.003(8). The section similarly

regulates the practices of clinical social work and mental health counseling.

Section 491.004 creates within the State Department of Health the Board of Clinical

Social Work, Marriage and Family Therapy, and Mental Health Counseling (the “State

Board”) composed of nine members, six of which must be licensed professionals in the three

practice fields. Fla. Stat. § 491.004(1), (2). The section also grants rulemaking authority to the

Board to implement Chapter 491. Fla. Stat. § 491.004(5).

Section 491.005 imposes licensure requirements for clinical social work, marriage and

family therapy, and mental health counseling professionals, including requirements for

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education, experience, passage of a “theory and practice examination,” and “knowledge of

the laws and rules governing the practice of clinical social work, marriage and family therapy,

and mental health counseling.” Fla. Stat. § 491.005(1), (3), (4).

Section 491.009 specifies grounds for discipline of licensed clinical social work, marriage

and family therapy, and mental health counseling professionals, including “False, deceptive, or

misleading advertising or obtaining a fee or other thing of value on the representation that

beneficial results from any treatment will be guaranteed,” and “Failing to meet the minimum

standards of performance in professional activities when measured against generally

prevailing peer performance, including the undertaking of activities for which the licensee,

registered intern, or certificateholder is not qualified by training or experience.” Fla. Stat.

§ 491.009(1)(d), (r).

Florida Administrative Code Subtitle 64B4 contains the rules implemented by the State

Board to implement Fla. Stat. Ch. 491. For example, § 64B4-3.003 specifies the respective

“theory and practice” licensure examinations to be administered to social work, marriage and

family therapy, and mental health counseling professionals, such as the “examination developed

by the Examination Advisory Committee of the Association of Marital and Family Therapy

Regulatory Board (AMFTRB)” for marriage and family therapists. F.A.C. § 64B4-3.003(2)(c).

Section 64B4-5.001 provides for the determination of violations and imposition of

discipline on the grounds provided by Fla. Stat. § 491.009, such as “False, deceptive, or

misleading advertising or obtaining a fee or other thing of value on the representation that

beneficial results from any treatment will be guaranteed,” and “Failing to meet the MINIMUM

standards of performance in professional activities when measured against generally prevailing

peer performance, including the undertaking of activities for which the licensee is not qualified by

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training or experience.” F.A.C. § 64B4-5.001(1)(d), (s). Such determinations of violations and

imposition of discipline against licensed social work, marriage and family therapy, and mental

health counseling professionals are made by the State Board, six members of which are licensed

professionals in the respective fields.

Section 64B4-3.0035 additionally specifies how the three types of professionals “shall

demonstrate knowledge of the laws and rules for licensure:”

(1) An applicant shall complete an approved course consisting of a

minimum of eight (8) hours which shall include the following
subject areas:

(a) Chapter 456, Part II, F.S., (Regulation of Professions

and Occupations, General Provisions)

(b) Chapter 90.503, F.S., (Psychotherapist-Patient

Privilege)

(c) Chapter 394, F.S., (Part I Florida Mental Health Act)

(d) Chapter 397, F.S.

(e) Chapters 415 and 39, F.S., (Protection from Abuse,

Neglect and Exploitation)

(f) Chapter 491, F.S., (Clinical, Counseling and

Psychotherapy Services)

(g) Chapter 64B4, F.A.C., (Rules of the Board of Clinical

Social Work, Marriage and Family Therapy and Mental
Health Counseling)

(2) The laws and rules course must provide integration of the
above subject areas into the competencies required for clinical
practice and must include interactive discussion of clinical case
examples applying the laws and rules that govern the
appropriate clinical practice.

No local ordinances are mentioned in the extensive requirements for knowledge of the laws and

rules, because there is no room for local ordinances in the state statutory scheme.

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The foregoing regulation of licensed health providers in general, and licensed mental health

providers specifically, including education, experience, licensure, practice, and discipline,

administered by a state board of licensed professionals, is pervasive, and implies an intent by the

Florida Legislature to occupy the field to the exclusion of local regulation.

PLAINTIFFS SATISFY ALL FACTORS FOR PERMANENT INJUNCTIVE

RELIEF.

In the Eleventh Circuit, “to obtain a permanent injunction, a plaintiff must show (1) that he

has suffered an irreparable injury; (2) that his remedies at law are inadequate; (3) that the balance

of hardships weighs in his favor; and (4) that a permanent injunction would not disserve the public

interest.” Barrett v. Walker County Sch. Dist., 872 F.3d 1209, 1229 (11th Cir. 2017). As shown in

Plaintiffs’ MPI briefing, Plaintiffs satisfy these factors. (MPI 24–25; MTD Resp./MPI Reply 27–

30; R&R Objs. Resp. 41–43.)

CONCLUSION

For all of the foregoing reasons, the Court should grant Plaintiffs’ Motion for Summary

Judgment.

Respectfully submitted,

/s/ Roger K. Gannam

Mathew D. Staver
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
Phone: (407) 875-1776
Fax: (407) 875-0770
E-mail: [email protected]
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on this August 26, 2019, I caused a true and correct copy of the

foregoing to be filed electronically with the Court’s CM/ECF system. Service upon all counsel of

record will be effectuated by the Court’s electronic notification system.

/s/ Roger K. Gannam

Roger K. Gannam
Attorney for Plaintiffs

26