Supreme Court of the United States ————

No. 18-___

IN THE Supreme Court of the United States ————

THE RICHMAN GROUP OF FLORIDA, INC., Petitioner, v.

PINELLAS COUNTY, FLORIDA, Respondent. ———— On Petition for a Writ of Certiorari to the Florida Second District Court of Appeal ———— PETITION FOR A WRIT OF CERTIORARI ————

BENJAMIN H. HILL, III Counsel of Record SCOTT A. MCLAREN E. D. ARMSTRONG, III FRED C. MARSHALL, II HILL, WARD & HENDERSON, P.A. 101 E. Kennedy Boulevard Suite 3700 Tampa, Florida 33602 (813) 221-3900 [email protected] Counsel for Petitioner, The Richman Group of Florida, Inc.

February 26, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 QUESTION PRESENTED The Equal Protection Clause of the Fourteenth Amendment requires the state to demonstrate a rational basis for treating similarly situated persons differently. Florida has applied a unique equal protection analysis testing whether the state has a rational basis for making its ultimate legislative decision – without considering the difference in treatment afforded a plaintiff as compared to others similarly situated. The question presented is: Does Florida’s failure to consider the “difference in treatment” between a plaintiff and its similarly situated comparators conflict with this Court’s well- worn standard applicable to equal protection claims?

(i) ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT The caption contains the names of all the parties to the proceeding below. The Richman Group of Florida, Inc. is a wholly- owned subsidiary of The Richman Group Development Corporation. No publicly held company owns 10% or more of The Richman Group Development Corporation’s stock. Pinellas County, Florida is an independent and chartered Florida county. TABLE OF CONTENTS Page QUESTION PRESENTED ...... i PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT ...... ii TABLE OF AUTHORITIES ...... v OPINIONS BELOW ...... 1 JURISDICTION ...... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 1 INTRODUCTION ...... 2 STATEMENT ...... 4 A. Case Background and Trial Court Proceedings ...... 4 B. The Florida Second District Court of Appeal Opinion – The Application of Sub- stantive Due Process Analysis to Richman’s Equal Protection Claim ...... 7 REASONS FOR GRANTING THE PETITION... 9 I. THE LEGAL STANDARD APPLICA- BLE TO AN EQUAL PROTECTION CHALLENGE IS INDISPUTABLE ...... 9 II. THE SECOND DISTRICT’S ANALYSIS CONFLICTS WITH THE STANDARD THAT THIS COURT HAS TIME-AND- AGAIN APPLIED IN EQUAL PROTEC- TION CASES ...... 12

(iii) iv TABLE OF CONTENTS—Continued Page III. THE QUESTION PRESENTED IS IMPORTANT BECAUSE EQUAL PRO- TECTION OF THE LAWS SHOULD BE GUARANTEED TO ALL FLORIDIANS ... 14 CONCLUSION ...... 16 APPENDIX APPENDIX A: Opinion of the Florida Second District Court of Appeal (November 29, 2017) ...... 1a APPENDIX B: Order of the Supreme Court of Florida denying review (November 29, 2018) ...... 22a APPENDIX C: Final Judgment of the Sixth Judicial Circuit in and for Pinellas County, Florida (June 29, 2016) ...... 24a APPENDIX D: Order of the Florida Second District Court of Appeal denying motion for rehearing en banc (February 19, 2018) ...... 67a

v TABLE OF AUTHORITIES CASES Page(s) Allegheny Pittsburgh Coal Co. v. Comm’n of Webster Cnty., 488 U.S. 336 (1989) ...... 4 Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788 (2017) ...... 16 City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985) ...... passim Dennis v. Higgins, 498 U.S. 439 (1991) ...... 10 Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) ...... 11 Engquist v. Oregon Dept. of Agric., 553 U.S. 591 (2008) ...... 2-3, 8 Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989) ...... 10 Gomez v. Toledo, 446 U.S. 635 (1980) ...... 10 Greenbriar v. City of Alabaster, 881 F.2d 1570 (11th Cir. 1998) ...... 12 Lawrence v. Texas, 539 U.S. 558 (2003) ...... 16 Monell v. N.Y. City of Social Services, 436 U.S. 658 (1978) ...... 10 Morris v. Town of Independence, 827 F. 3d 396 (5th Cir. 2016) ...... 13

vi TABLE OF AUTHORITIES—Continued Page(s) New Port Largo, Inc. v. Monroe County, 95 F. 3d 1084 (11th Cir. 1996) ...... 13 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ...... 4, 9 Owen v. City of Independence, 445 U.S. 636 (1980) ...... 10 Pinellas County, Florida v. The Richman Group of Florida, Inc., 253 So. 3d 662 (Fla. 2d DCA 2017), reh’g denied (Feb. 19, 2018), review denied, SC18-456, 2018 WL 6264578 (Fla. Nov. 29, 2018) ...... 1 Reed v. Freedom Mtg. Corp., 869 F. 3d 543 (7th Cir. 2017) ...... 13 Reserve v. Town of Longboat Key, 17 F. 3d 1374 (11th Cir. 1994) ...... 13 The Richman Group of Florida, Inc. v. Pinellas County, Florida, No. 14-5608C1-15, 2016 WL 8376580 (Fla. 6th Cir. Ct. June 29, 2016) ...... 1 Romer v. Evans, 517 U.S. 620 (1996) ...... passim Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441 (1923) ...... 4 United States v. Hughes, 632 F. 3d 956 (6th Cir. 2011) ...... 8 Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ...... passim

vii TABLE OF AUTHORITIES—Continued CONSTITUTION Page(s) U.S. Const. amend. XIV, § 1, cl. 2 ...... passim

STATUTES 28 U.S.C. § 1257(a) ...... 1 42 U.S.C. § 1983 ...... passim

PETITION FOR A WRIT OF CERTIORARI Petitioner The Richman Group of Florida, Inc. (“Richman”) respectfully submits this petition for a writ of certiorari to review the judgment of the Florida Second District Court of Appeal. OPINIONS BELOW The opinion of the Florida Second District Court of Appeal is reported at 253 So. 3d 662 (Fla. 2d DCA 2017), reh’g denied (Feb. 19, 2018), review denied, SC18-456, 2018 WL 6264578 (Fla. Nov. 29, 2018). Pet. App. 1a-21a. The order of the Florida Supreme Court denying review is unreported but is electronically available at 2018 WL WL6264578. Pet. App. 22a-23a. The order of the Florida Second District Court of Appeal denying Richman’s motion for rehearing en banc is unreported. Pet. App. 67a-68a. The Final Judgment of the Sixth Judicial Circuit in and for Pinellas County is unreported but electronically available at 2016 WL 8376580. Pet. App. 24a-66a. JURISDICTION The judgment of the Florida Second District Court of Appeal was entered on November 29, 2017. The Florida Second District Court of Appeal denied Richman’s timely motion for rehearing en banc on February 19, 2018. The Florida Supreme Court denied Richman’s timely petition for review on November 29, 2018. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourteenth Amendment to the United States Constitution provides in pertinent part: “nor shall any State [. . .] deny to any person within its jurisdiction 2 the equal protection of the laws.” U.S. Const. amend. XIV, § 1, cl. 2. The Civil Rights Act, 42 U.S.C. § 1983 provides in pertinent part: [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . INTRODUCTION The Florida courts have adopted and condoned an interpretation of the Fourteenth Amendment that mistakenly applies substantive due process review to a claim for violation of equal protection. In deciding Richman’s equal protection challenge, the opinion of Florida’s Second District Court of Appeal confuses those tests by asking whether Pinellas County (the “County”) had a rational basis to make its ultimate legislative decision, instead of asking whether the County had a rational basis for treating Richman differently from its similarly situated comparators. Pet. App. 2a, 21a. This fundamental flaw undermines the equal protection of the laws guaranteed to all Floridians. Absent the involvement of a suspect class or fundamental right, this Court has repeatedly instructed the test for equal protection is: whether the government has rational basis for treating a plaintiff (or a group of persons) differently than others similarly situated. Engquist v. Oregon Dept. of Agric., 553 U.S. 3 591, 602 (2008) (explaining that “[w]hen those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference…”.) (emphasis supplied); Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (“Our cases have recognized successful equal protection claims brought by a ‘class of one’, where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.) (emphasis supplied); City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 448-50 (1985) (holding that zoning legislation violated equal protection under rational basis test because it treated the plaintiff differently from similarly situated zoning applicants, without a rational basis for the difference in treatment). But the unprecedented analysis employed by the Florida Courts ignored the “difference in treatment” test – instead applying the legal standard applicable to substantive due process (whether there exists a rational basis for the decision) to both Richman’s substantive due process claim and its separate claim for violation of equal protection. Pet. App. 2a, 21a. Indeed, the Second District held that the trial court’s judgment on Richman’s equal protection claim must be reversed because “the disposition of both of Richman’s Constitutional claims [equal protection and substantive due process] hinge on the question of whether the County had a rational basis to deny [Richman’s land use application].” Id. at 21a (emphasis supplied). Under the Second District’s unique approach to equal protection, the government is free to discriminate with impunity against one or a particular class of 4 persons, so long as there exists any arguably legitimate basis for the government’s ultimate decision. Such a result is contrary to logic, reason, and the Equal Protection Clause – as well as several of this Court’s decisions. This Court has frequently granted certiorari review to protect inviolate the constitutional guarantee of equal protection. Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Village of Willowbrook, 528 U.S. 562; Allegheny Pittsburgh Coal Co. v. Comm’n of Webster Cnty., 488 U.S. 336 (1989); City of Cleburne, 473 U.S. 432; Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441 (1923). This Court should invoke its jurisdiction to correct the Second District’s erroneous application of the Fourteenth Amendment to ensure that equal protection is guaranteed to all Floridians. STATEMENT A. Case Background and Trial Court Proceed- ings In 2012, Richman applied for an amendment (“Amendment”) to the County’s land use plan (“LUP”) map seeking to change the LUP designation for a parcel of property from primarily an industrial classification to a multifamily residential category. Pet. App. 24a-25a. The purpose behind the Amendment was to allow the development of Richman’s proposed apartment complex on the property. Id. at 27a. Hundreds of residents living in the vicinity of the property mounted significant political opposition to the Amendment because – as found by the trial court – they simply did not want Richman’s apartment complex near their single family homes. Id. at 32a, 50a. 5 The ordinance governing review of Richman’s proposed Amendment mandated that the County “evaluate the [proposed] [A]mendment so as to make a balanced legislative determination based on [six] Relevant Considerations . . . .” (the “Relevant Con- siderations”). Id. at 28a-30a. These six legislatively adopted “Relevant Considerations” did not include any criterion related to preserving industrial lands. Id. After years of public hearings on the Amendment (where the neighbors objected strongly) and an eviden- tiary hearing before an administrative law judge (who recommended approval), the County denied the Amendment in 2014. Id. at 31a-39a. The County cited its desire to “preserve industrial lands” as the basis for denying the Amendment – even though this basis was not included as part of the “Relevant Considerations” that were supposed to be applied when the County evaluated the Amendment. Id. at 39a-40a, 47a. Richman then filed its complaint bringing two separate causes of action under 42 U.S.C. § 1983. Count I of the complaint sought damages for violation of equal protection, while count II was a claim for violation of substantive due process. Id. at 44a. In its equal protection claim, Richman pled and argued that the County had intentionally treated Richman differently from similarly situated comparators, “without any reasonable or rational basis for such disparate treatment.” (R. 71)1 The case proceeded to trial. In its Judgment in favor of Richman on both counts, the trial court found that between 2003 and 2015, the County considered eighteen applications for LUP amendments where the

1 Citations to the record of the trial court proceedings will be referenced as (R. ___). 6 applicant (like Richman) sought to change the LUP designation from an industrial classification to a residential designation. Seventeen were approved. The only amendment denied was Richman’s Amendment. Id. at 40a-41a. But for each of these seventeen approved amendments, the County applied only the six codified “Rele- vant Considerations” in evaluating these amendments. No other criteria were applied or considered. For the Richman Amendment, however, the County denied the application and cited as its basis for denial an uncodified “industrial land preservation” criterion that was never adopted as part of the Relevant Considerations. Id. at 40a-41a, 47a. Only in Richman’s case did the County deny an amendment – citing an uncodified criterion as its reason for denial. Id. Richman argued that its Amendment was similarly situated to six of the seventeen approved amendments. The trial court found that “the relevant characteristics of the Richman Amendment and its comparators were the same. . . .” Id. at 56a. Indeed, the trial court found that these six comparator amendments were “indistinguishable” from the Richman Amendment concerning the pertinent issues (i.e., public safety, traffic, transportation, and economic impact). Id. at 41a-43a. After watching videos of the County Commission hearings, observing the testimony of the witnesses at trial, and considering the documentary evidence introduced, the trial court also concluded as a factual matter that the County’s stated reason for denying the Amendment – “preservation of industrial lands” – was not only an inapplicable and never previously applied review criterion, it was a false and pretextual reason for the denial. Id. at 50a. The trial court found that 7 the real reason for the denial was to appease the neighborhood objectors who simply did not want Richman’s apartment project next to their upscale single-family neighborhood. Id. Accordingly, the trial court found that the County’s reason for singling out Richman’s Amendment and treating it differently was because hundreds of neighbors simply did not want Richman’s apartment project – not because of any reason that legitimately supported a distinction between the Richman Amend- ment and its comparators. Id. Further, the County utilized only the six “Relevant Considerations” in approving the comparators – while the County used a never adopted criterion as pretext to deny the Richman Amendment. Id. at 40a-42a, 50a. As a result, the trial court held that the County’s conduct violated the Equal Protection Clause because “the preponderance of the evidence establishes that because the relevant characteristics of the Richman . . . Amendment and the [s]ix [comparator amendments] were indistinguishable in relevant respects, there exists no rational basis for the difference in treatment afforded the Richman Amendment as compared to the [s]ix [similarly situated comparators].” Id. at 43a.

B. The Florida Second District Court of Appeal Opinion – The Application of Sub- stantive Due Process Analysis to Richman’s Equal Protection Claim As repeatedly instructed by this Court, the standard for an equal protection violation where no suspect class or fundamental right is involved is whether the government can identify a rational basis for treating the plaintiff (or a group of plaintiffs) differently from 8 similarly situated comparators. Engquist, 553 U.S. at 602; Village of Willowbrook, 528 U.S. at 565; Romer v. Evans, 517 U.S. 620, 631-35 (1996); City of Cleburne, 473 U.S. at 448-50 (1985). Even the County conceded in its brief to Florida’s Second District that the proper equal protection standard is “whether the plaintiff has been treated differently from others similarly situated, and whether there is no rational basis for the difference in treatment.” (emphasis supplied.) Despite this Court’s consistent guidance, the Second District failed to apply the “difference in treatment” test – instead holding: “the disposition of both of Richman’s Constitutional claims [equal protection and substantive due process] hinge on the question of whether the [County] had a rational basis to deny the [A]mendment. Having concluded that the trial court erred in ruling that the [County’s] decision lacked a rational basis, we reverse the final judgment in its entirety.” Pet. App. 21a (emphasis supplied). See also Id. at 2a (opining that “[b]ecause the trial court erred in concluding that the County had no rational basis to deny the proposed amendment, we reverse the judgment.”) (emphasis supplied). But the “rational basis for the decision” analysis applies to a substantive due process claim – not one for violation of equal protection.2 The Second District never directly addresses equal protection in its lengthy opinion – even though it formed the basis of count I of Richman’s complaint. The decision seemingly acknowledges this failure, explaining that “our review is limited to the question

2 See, e.g., United States v. Hughes, 632 F. 3d 956 (6th Cir. 2011). 9 of whether the County’s denial of the [A]mendment was arbitrary and capricious.” Id. at 11a. Given the narrow scope of its review, the Second District’s opinion fails to identify any rational basis for the County treating Richman’s Amendment differently from the six similarly situated comparators. The decision includes a discussion of issues raised by objecting neighbors as a rational basis for the denial. Id. at 4a. But the opinion contains no analysis as to how there exists any difference between Richman and its comparators on these issues that could justify treating Richman differently. Id. at 4a-21a. Accordingly, Florida’s Second District Court of Appeal has ruled erroneously that the test for a violation of equal protection is the same as that for substantive due process. As shown below, this Court should exercise its discretionary jurisdiction to correct this egregious error and to clarify the appropriate application of the Fourteenth Amendment’s guarantee of equal protection in Florida. REASONS FOR GRANTING THE PETITION I. THE LEGAL STANDARD APPLICABLE TO AN EQUAL PROTECTION CHAL- LENGE IS INDISPUTABLE The Equal Protection Clause of the Fourteenth Amendment guarantees all citizens equal protection of the laws and prohibits unwarranted discrimination. U.S. Const. amend. XIV, § 1, cl. 2; Obergefell, 135 S. Ct. at 2590; Village of Willowbrook, 528 U.S. at 565; City of Cleburne, 473 U.S. at 448-50. Application of this constitutional principle is of exceptional im- portance because it affects all Americans. To ensure the guarantee of equal protection can be enforced, 42 U.S.C. § 1983 provides: 10 Every person who, under color of any statute, ordinance, regulation, custom, or usage … subjects or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…. Section 1983 “reflects a Congressional judgment that a ‘damages remedy . . . . is a vital component of any scheme for vindicating cherished constitutional guarantees.’” Gomez v. Toledo, 446 U.S. 635, 538 (quoting Owen v. City of Independence, 445 U.S. 636 (1980)). As remedial legislation, Section 1983 is to be construed generously to further its primary purpose. Id. at 639, quoting Owen, 445 U.S. at 636; See also Dennis v. Higgins, 498 U.S. 439, 443 (1991) (“broad construction of Section 1983 is compelled by the statutory language”); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989) (“[w]e have repeatedly held that the coverage of [Section 1983] must be broadly construed”); Monell v. N.Y. City of Social Services, 436 U.S. 658, 684 (1978) (Section 1983 should be “liberally and beneficially construed”). There exists no confusion in the law. In order to survive equal protection scrutiny, legislative action that results in similarly situated persons being treated differently must be based upon a legitimate governmental reason for the difference in treatment. As explained by this Court in Romer v. Evans, legislation that disadvantages certain persons violates equal protection unless the difference in treatment “bears a rational relation to some legitimate end.” 517 U.S. 620, 631 (1996) (emphasis supplied) (holding Colorado legislation that treated plaintiffs differently from others violated equal protection because the difference 11 in treatment “lack[ed] a rational relationship to legitimate state interests.”). In Romer, this Court noted specifically: “[i]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. at 634, quoting Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (emphasis in original). In City of Cleburne, this Court applied rational basis review to a local zoning ordinance requiring that the plaintiff obtain a special use permit to operate a group home, when others similarly situated were not required to seek the permit. 473 U.S. at 432. The local government gave several alleged reasons for distinguishing between the plaintiff and its comparators, but the Cleburne Court ruled that these “reasons” were not constitutionally legitimate. Id. at 448-50. Specifically, this Court commented that the reasons given by the government were “vague” and “undiffer- entiated” in holding that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating [the plaintiff] differently from [its comparators].” Id. at 448-49. Accordingly, this Court has made clear that the equal protection test must focus on the “difference in treatment” between the plaintiff and its comparators, and that in order to satisfy the test, there must be a “real” and “legitimate” governmental purpose for treating similarly situated persons differently. Id.

12 II. THE SECOND DISTRICT’S ANALYSIS CONFLICTS WITH THE STANDARD THAT THIS COURT HAS TIME-AND- AGAIN APPLIED IN EQUAL PROTEC- TION CASES If there were any doubt as to whether the Second District applied the proper test for equal protection, such doubt is removed by the fact that the opinion does not even mention the “difference in treatment” standard governing Richman’s Section 1983 equal protection claim. Although the decision references neighborhood opposition as a rational basis for denial of the Amendment, a “popularity poll” of neighbors is not a legitimate governmental basis for distinguishing between similarly situated persons. Romer, 517 U.S. at 631; City of Cleburne, 473 U.S. at 448-50. The Second District references “preservation of industrial lands” as a legitimate governmental purpose for denying the amendment because it purportedly improves the County’s opportunity for attracting desirable employers. Pet. App. 21a. But this “preservation” purpose cannot be a rational basis for distinguishing between Richman and its comparators – because all of them eliminated industrially designated lands and converted them to multifamily residential use. Id. at 40a-41a. Further, the County approved one of the six comparator amendments after denying the Richman Amendment. (R. 8423-25). Therefore, the uncodified “preservation of industrial lands” reason advanced by the County cannot logically be a legitimate basis for treating Richman differently, especially in light of the trial court’s factual finding that this reason was false and pretextual. See Greenbriar v. City of Alabaster, 881 F.2d 1570, 1578 (11th Cir. 1998) (instructing that the issue of what motivates a local 13 government in making a decision is an issue to be decided by the trier of fact). New Port Largo, Inc. v. Monroe County, 95 F. 3d 1084, 1091 (11th Cir. 1996) (same). The Second District’s opinion cites traffic, transportation, and public safety concerns raised by objecting neighbors as legitimate bases for denying the Amend- ment. Pet. App. 4a, 21a. However, the decision does not demonstrate how, if at all, the Richman Amendment was different from its comparators with respect to these “concerns” – undoubtedly because there exists no evidence suggesting there was any meaningful difference. Indeed, the trial court’s factual finding that “the relevant characteristics of the Richman Amendment and its comparators were the same” was never addressed by the Second District.3 See Reed v. Freedom Mtg. Corp., 869 F. 3d 543, 549 (7th Cir. 2017) (ruling that the determination of whether a claimant and its comparators are “similarly situated” for purposes of equal protection is a question for the fact- finder); Morris v. Town of Independence, 827 F. 3d 396, 402 (5th Cir. 2016) (same); Reserve v. Town of Longboat Key, 17 F. 3d 1374, 1381 (11th Cir. 1994)

3 The only difference between Richman and its comparators identified by the Second District was that the neighbors opposed Richman’s Amendment, and not the comparator amendments. As consistently ruled by this Court, public opposition – by itself – is not a relevant distinction or a rational basis for treating similarly situated persons differently. Romer, 517 U.S. at 634 (holding whether a group is politically unpopular is not a relevant characteristic in conducting an equal protection analysis); City of Cleburne, 473 U.S. at 437, 448-50 (ruling that neighbor objections and fears are not rational bases for treating a plaintiff differently from similarly situated zoning applicants). 14 (same). There exists no evidence suggesting that the trial court’s factual finding was wrong. Because Richman and its comparators were the same in all relevant respects, the Equal Protection Clause requires that they be treated the same. Village of Willowbrook, 528 U.S. at 565; City of Cleburne, 473 U.S. at 448-50. The Second District’s failure to recognize this concept was a fundamental error – and poses a threat to the constitutional guarantee of equal protection throughout Florida.

III. THE QUESTION PRESENTED IS IMPOR- TANT BECAUSE EQUAL PROTECTION OF THE LAWS SHOULD BE GUARAN- TEED TO ALL FLORIDIANS This question is profoundly important because the constitutional guarantee of equal protection should be consistently preserved and applied. Florida is one of the fastest-growing areas in the United States, so it is critical that equal protection of the laws is uniformly applied throughout the State. Under the Second District’s erroneous “rational basis for the decision” approach to equal protection, if there exists any legitimate basis for the government’s ultimate decision, then the government is free to discriminate against one or a particular class of person(s) in making such a decision. As a result, state and local governments will be emboldened to discriminate without fear of liability under Section 1983. By way of example, suppose that 1,000 illiterate persons apply to a government official for a contractor’s license, and 999 (who are non-redheads) are approved. The government official then denies the application of the 1,000th illiterate applicant (a redhead) for the sole reason that the government 15 official does not like redheads. Under the Second District’s mistaken interpretation of equal protection, the government is free to engage in that discriminatory act because it can claim that there was a state interest in ensuring that contractors can read construction plans – a rational basis for the denial. Since the Second District does not apply the “difference in treatment” test, the redheaded applicant is precluded from invoking the protections of the Equal Protection Clause to prove that the difference in treatment was a constitutional violation. As a legislative example, suppose a local government adopts an ordinance preventing redheads (and only redheads) from obtaining a contractor’s license unless the redhead can pass a literacy test. Under Florida’s unprecedented equal protection analysis, that ordinance survives rational basis scrutiny because of the state’s interest in ensuring that contractors can read construction plans. Without the “difference in treatment” test, redheaded applicants have no way to challenge the discriminatory ordinance. Accordingly, the decision of the Second District effectively eviscerates the constitutional guarantee of equal protection that otherwise would require the government to provide a legitimate governmental reason for treating redheads and non-redheads differently. In its lengthy opinion, the Second District never applied the correct equal protection test to Richman’s equal protection claim – the first count of its complaint. The decision never even suggests that there exists any rational basis for treating the Richman Amendment differently from its similarly situated comparators. The Second District’s failure to recognize the trial court’s factual finding that the Amendment was 16 treated differently so as to appease the large group of neighborhood objectors also sets a very dangerous precedent. Such “mob rule” decision making is exactly the kind of injustice and discrimination that the Equal Protection Clause and 42 U.S.C. § 1983 were designed to prevent. Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 797 (2017); Lawrence v. Texas, 539 U.S. 558 (2003); Romer, 517 U.S. at 631; City of Cleburne, 473 U.S. at 448-50. This Court should confirm that the constitutional guarantee of equal protection still exists in Florida, and exercise its jurisdiction for such purpose. CONCLUSION The Court should grant the petition for a writ of certiorari. Respectfully submitted,

February 26, 2019