Full opinion text
ORDER ANTOON, District Judge. Rabbi Joseph Konikov (“Plaintiff’) has sued Orange County, Florida (“the County”) and several members of the County’s Code Enforcement Board (“the Individual Defendants”), alleging that his right to practice his religion has been violated by the County’s enforcement of its land use code. Plaintiff contends that the code— both on its face and as applied against him^ — -infringes on his federal and state constitutional rights and violates the provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUI-PA”), 42 U.S.C. §§ 2000cc to 2000cc-5, and Florida’s Religious Freedom Restoration Act of 1998 (“Florida RFRA”), Sections 761.01-05, Florida Statutes. This case is currently before the Court on the Defendants’ Alternative Motion for Summary Judgment (Doc. 203). Defendants maintain that the provisions of the Orange County Code at issue are constitutionally sound both on their face and as applied. Defendants further assert that the Code and its application satisfy both RLUIPA and Florida RFRA, but that in the event they do not, these statutes are unconstitutional. Having considered the parties’ submissions and arguments, the Court agrees that Defendants’ Alternative Motion for Summary Judgment must be granted as to all counts of the Complaint. I. Background It is undisputed that “Plaintiff holds sincere religious beliefs compelling him to share his religious message with other persons.” (Statement of Facts Admitted, Joint Pretrial Statement, Doc. 235). Indeed, “Plaintiffs religious beliefs and mandates compel him to meet with other persons in order to share his religion,” and “[i]n Plaintiffs religious tradition, a minimum of ten (10) persons over the age of thirteen must be able to pray together.” (Statement of Facts Admitted, Joint Pretrial Statement, Doc. 235). Plaintiff is the current owner of the real property at 6756 Tamarind Circle in Orlando, Florida (“the Property”). The Property, which is located in a residential neighborhood in the Sand Lake Hills Section Two subdivision (“the Subdivision”), consists of a quarter-acre lot and a single-family residence thereon. Plaintiff purchased the property on March 7, 2002, after having leased the Property and lived there as a tenant since at least July 31, 2001. The Property and the Subdivision are in an “R-1A” zone under Chapter 38 (Zoning) of the Orange County Code (“OCC” or “the Code”). Chapter 38 of the Code provides that land and buildings shall be used only as permitted in the district where they are located. See OCC § 38-3(a). Uses fall into one of three categories: those that are permitted as of right, those that are permitted only if a special exception is obtained, and those that are prohibited altogether. See OCC § 38-74. The uses for each type of district are set forth in the “Use Table” contained in Section 38-77; criteria for special exceptions are contained in Section 38-78; and “Conditions for Permitted Uses and Special Exceptions” are codified in Section 38-79. Use of land as a single-family home is a permitted use in an R-1A zone. However, use of land as a “religious organization” in an R-1A zone, like many other uses, is permitted only if a special exception is obtained. OCC § 38-77. Among the criteria for the granting of a special exception are that “[t]he use ... be similar and compatible with the surrounding area,” that “[t]he use ... be consistent with the pattern of existing development,” and that “[t]he use ... not act as a detrimental intrusion into an existing area.” OCC § 38-78(4), (5), & (6). It is undisputed that Plaintiff never sought a special exception to operate a religious organization on the Property. “Religious organization” is not defined in the OCC, but the list of definitions does include an entry for “religious Institution,” providing, “Religious Institution shall mean a premises or site which is used primarily or exclusively for religious worship and related religious activities.” OCC § 38-1. Religious organizations are permitted without the need for obtaining a special exception in six types of zones, and such organizations are allowed as special uses in all but six other types of zones. OCC § 38-77, Use Table, at 2843. While “religious organizations” and many other uses are allowed to operate in an R-1A zone if a special exception is obtained, hundreds of other specific uses are prohibited in R-1A zones; i.e., those uses are not allowed even by special exception. See Use Table, OCC § 38-77. Sometime in 2000 or 2001, the Orange County Code Enforcement Division (“the Enforcement Division”) began to receive complaints from residents of the Subdivision that religious services were being conducted at the Property and that traffic problems had resulted. (Ex. 1 to Doc. 205, at 26). The Enforcement Division conducted an investigation into these complaints. On March 9, 2001, Officer George LaPorte of the Enforcement Division issued a Code Violation Notice to Plaintiff and the then-owners of the Property, Carl and Danae Hall (“the Halls”). (Ex. 2 to Doc. 205, at 74). The notice stated that the Property was in violation because “operating a synagogue or any function related to synagogue and or church services is not a permitted use in residential zoned area.” (Ex. 2 to Doc. 205, at 74). A hearing regarding that violation notice was scheduled for June 20, 2001; however, that hearing was cancelled. (See Joint Pretrial Statement, Statement of Admitted Facts ¶¶ 16-17). Several months later, on February 4, 2002, Officer Edward Caneda of the Enforcement Division issued another Code Violation Notice to Plaintiff and the Halls. (Ex. 2 to Doc. 205, at 65). The notice described the violation as “Religious organization operating from a residential property without special exception approval.” (Ex. 2 to Doc. 205, at 65). Plaintiff and the Halls were given seven days to bring the Property into compliance. (Ex. 2 to Doc. 205, at 65). The County determined that the Property was not brought into compliance within the seven-day period, and on March 20, 2002, a hearing was held before the Code Enforcement Board during which evidence was presented and witnesses testified (Ex. 1 to Doc. 205). Plaintiff was represented at the hearing by an attorney. (Ex. 1 to Doc. 205, at 2). Code Enforcement Officer Caneda described the code enforcement investigation and presented evidence obtained during that investigation. (Ex. 1 to Doc. 205, at 23-24). The investigation began on or about July 13, 2001 and continued through March 19, 2002. (Ex. 1 to Doc. 205, at 72). The investigators did not check the Property every day during that time period; rather, they observed the Property on sixty-eight days and noted activity on forty-nine of those days. On the other nineteen visits, no activity was observed. (Ex. 1 to Doc. 205, at 25). The investigation included the taking of photographs at and near the Property and an activity study of the Property. The photographs revealed numerous vehicles parked near the Property, including on the grass toward the sidewalk rather than on the street. On the forty-nine days on which activity was noted, the Enforcement Division observed a total of 510 people enter the Property and 373 cars (other than Plaintiffs cars) parked at or near the Property from which people went to the Property. (Ex. 1 to Doc. 205, at 24). Caneda also submitted into evidence an activity report, and information obtained from an Internet website regarding the services on the Property. (Ex. 1 to Doc. 205, at 25; Ex. 2 to Doc. 205, at 24-26; see also Ex. 1 to Doc. 205, at 36). The Internet printout, which is from a website beginning with “www.jewishorlan-do.com,” lists the address of Plaintiffs Property directly beneath a logo for the “Chabad of South Orlando,” and Plaintiff is listed as “Rabbi Yosef Konikov, Director.” (Ex. 2 to Doc. 205, at 24). In addition to the website printout, a brochure for the “Chabad of South Orlando” is contained in the written record that was before the Code Enforcement Board. (Ex. 2 to Doc. 205, at 29-29c). That brochure provides in part that the “Chabad’s Services are open to all Jews.” (Ex. 2 to Doc. 205, at 29a). The brochure lists times and places of services, some of which were to be held at a local school and a hotel. (Ex. 2 to Doc. 205, at 29b). Additionally, however, the brochure invites attendance at scheduled Shmini Atzeret and Simchat Torah services on Plaintiffs Property. (Ex. 2 to Doc. 205, at 29c). Brochure readers are advised in large print to call “Rabbi Yosef or Chani Konikov” for more information, and the phone number provided is the same as the one listed on the website. (Ex. 2 to Doc. 205, at 24, 29b). Several of Plaintiffs neighbors also testified at the Code Enforcement Board hearing. Ted McDonald testified that the Subdivision consists of single-family dwellings and is not a commercial or business environment. (Ex. 1 to Doc. 205, at 35-36). McDonald stated that “[a] high traffic business is being run out of a single-family dwelling” and “[t]he business is being advertised on the internet.” (Ex. 1 to Doc. 205, at 36). McDonald noted that according to the Internet, there were eleven scheduled meetings per week at the Property — including some type of meeting each day of the week — and eight additional “possible” meetings per week. (Ex. 1 to Doc. 205, at 57; Ex. 2 to Doc. 205, at 23). McDonald also testified that there was a sign on the front door of the Property that stated, “[K]indly use the side entrance for the shul.” (Ex. 1 to Doc. 205, at 37). A photograph of this sign was submitted into the record. (Ex. 2 to Doc. 205, at 27). The activities at the Plaintiffs Property and the resulting traffic had affected McDonald’s peaceful enjoyment of his property, which he had owned for twenty-five years. (Ex. 1 to Doc. 205, at 38, 40). McDonald also presented “nearly 300 petitions” in support of enforcement of the ordinances. (Ex. 1 to Doc. 205, at 41). Another neighbor, Peter Nee, testified that he walks, jogs, or bicycles in the neighborhood every day and that “it’s getting to be a problem with a lot of the cars.” (Ex. 1 to Doc. 205, at 46). Daniel Brads, who lives directly across the street from the Property, testified that he had replaced eight sprinkler heads nearly four feet from the street, almost at the sidewalk. (Ex. 1 to Doc. 205, at 112). Brads spoke to Plaintiff about the sprinkler heads, but Plaintiff told Brads that Brads could not prove that the broken sprinkler heads were caused by vehicles related to the activities at the Property. (Ex. 1 to Doc. 205, at 111-12). Brads stated that “[t]he issue is the fact that those cars are getting on my property line” and “[t]he fact that they run over my sprinkler heads,” cause damage, park in front of the fire hydrant, and double-park. (Ex. 1 to Doc. 205, at 113). Brads concluded by explaining, “I bought my house four years ago. I did not buy my house next to a chabad or a synagogue or anything else. I bought my house in a residential neighborhood four years ago. And now it’s become changed. That’s the issue.” (Ex. 1 to Doc. 205, at 114). Other witnesses testified in favor of Plaintiff. Jeffrey Lessel, who had been attending prayer services at the Property for a year and a half prior to the hearing, testified that he did not know of anyone being ticketed for parking illegally during that time, nor had he noticed any adverse effects on the neighborhood from the prayer services. (Ex. 1 to Doc. 205, at 101-03). According to Lessel, fifteen or eighteen people prayed there on Friday night and twenty-five people prayed there on Saturday mornings. (Ex. 1 to Doc. 205, at 104). Occasionally there is a Bible study on Wednesday. (Ex. 1 to Doc. 205, at 104). The affidavit of a neighbor, Edward Lerman, was read into the record at the hearing. (Ex. 1 to Doc. 205, at 58; Ex. 2 to Doe. 205, at 18). Lerman lives two houses down from Plaintiff and stated that he was “shocked” by the “unfounded claims” regarding “traffic and parking disruptions and ... noise from [Plaintiffs] home.” (Ex. 2 to Doc. 205, at 18). Lerman had “never heard any noise or disruption coming from [Plaintiffs] home,” that he had “never observed traffic problems or parking disruptions” during the prayer meetings, that his lawn had not been destroyed by parked cars, and that “[t]he cars parked in front of the [Plaintiffs] home are no different than any of the other cars parked in front of my other neighbor [sic] homes when they hold parties or other social gatherings.” (Ex. 2 to Doc. 205, at 18). In addition to these witnesses, several local religious leaders testified at the Code Enforcement Board hearing. Kevin Urichko, the pastor at Northland Community Church in Longwood, Florida, testified that his church has 7,000 worshipers on weekends and 200 small groups that meet in homes. (Ex. 1 to Doc. 205, at 50). Urichko’s church has a website, and the individual homes that have prayer groups are listed on the website. (Ex. 1 to Doc. 205, at 52). Most of those home groups meet weekly. (Ex. 1 to Doc. 205, at 53). The most that the prayer groups get together is two or three times a week. (Ex. 1 to Doc. 205, at 53). The average number of people in a group is twelve, but some groups consist of as few as six or as many as thirty-five. (Ex. 1 to Doc. 205, at 54). In an affidavit that was read into the record at the hearing, another pastor of Northland Church stated that Northland Church has 200 home groups that meet weekly throughout central Florida. (Ex. 1 to Doc. 205, at 55; Ex. 2 to Doc. 205, at 9-10). Ken Bogel, associate pastor at Trinity Baptist Church in Apopka, testified that his church has a website that lists its weekly activities, including “some Bible studies and groups meeting in homes.” (Ex. 1 to Doc. 205, at 105). The study groups meet once per week and consist of twenty-five to thirty people each. (Ex. 1 to Doc. 205, at 106). Bogel expressed concern about ambiguity in the ordinance and how frequently groups could permissibly meet. (Ex. 1 to Doc. 205, at 105-06). In an affidavit that was submitted into the record, Pastor Wayne Brooks of Metro Life Church stated that his church has 18 home groups that meet weekly throughout Central Florida, including 10 groups in Orange County. (Ex. 1 to Doc. 205, at 57; Ex. 2 to Doc. 205, at 15-16). Rabbi Sholem Dubov testified that he is the executive director of the Chabad of Greater Orlando and the founder of Chabad Organizations of Central Florida. (Ex. 1 to Doc. 205, at 100). According to Rabbi Dubov, there are six such organizations, and Plaintiff “is one of our organizations.” (Ex. 1 to Doc. 205, at 100). After considering this evidence, on March 21, 2002 the Code Enforcement Board issued its “Findings of Fact, Conclusions of Law, and Order.” (Ex. 2 to Doc. 205, at 4). Based on the record before it, the Code Enforcement .Board concluded Plaintiff was operating a religious organization from a residential property without special exception approval and thus was in violation of Sections 38-3, 38-74, and 38-77 of the Orange County Code. (Ex. 2 to Doc. 205, at 4). The corrective action required by the Board was for Plaintiff to “[o]btain special exception approval or cease religious organization operations.” (Ex. 2 to Doc. 205, at 4). Plaintiff did not take either of these actions, and eventually a per diem fine was imposed for Plaintiffs continued violation. Shortly thereafter, Plaintiff filed this lawsuit against the County and four members of its Code Enforcement Board — Joel Hammock, Jim Powers, Robert Burns, and Robert High. (Doc. 1). In his Complaint, Plaintiff alleges nine counts: -Count I— Violation of the Right to Free Exercise of Religion Under the United States and Florida Constitutions; Count II — Violation of the Right to Equal Protection Under the Untied States and Florida Constitutions; Count. Ill — Violation of the Establishment Clause of the United States and Florida Constitutions; Count IV — Violation of Free Exercise of Religion Under RLUIPA; Count V — Violation of Free Exercise of Religion Under Florida RFRA; Count VI — Violation of Free Speech and Assembly Under the United States and Florida Constitutions; Count VII — Violation of Right to Privacy Under the United States and Florida Constitutions; Count VIII — Violation of Right to Due Process Under the United States and Florida Constitutions; and Count IX — Civil Conspiracy- In their summary judgment motion (Doc. 203), Defendants seek entry of judgment in their favor on all nine counts. The instant motion is the second summary judgment motion that Defendants have filed in this case. In response to Defendants’ first motion (Doc. 125), Plaintiff argued that the Defendants had improperly relied on evidence — particularly, deposition transcripts — that the Code Enforcement Board did not have before it, and which did not exist, at the time of the hearing. (See Doc. 168 at 15). Defendants relented and filed their second motion (Doc. 203) without reference to evidence not considered by the Board. At oral argument the parties agreed that the second motion superseded the first motion and is the operative motion before the Court. (See Tr. of Hr’g on Mot. for Summ. J., Doc. 223 at 95-96). II. Discussion A. Summary Judgment Standards Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Moreover, “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. B. The Merits of Defendants’ Motion 1. Free Exercise (Count I) In Count I of the Complaint, Plaintiff alleges that the Orange County zoning provisions on their face and as applied against him violate his right to the free exercise of his religion under the First Amendment to the United States Constitution and Article I, Section 3 of the Florida Constitution. However, Plaintiffs claim is not well-founded. The Orange County zoning ordinances comprise a valid system of land use regulation that does not infringe on Plaintiffs constitutional rights. Over the years, the principles applicable to free exercise challenges have evolved in United States Supreme Court jurisprudence. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court held that South Carolina could not apply its unemployment compensation statute in a manner that excluded a worker from eligibility based on her religion-based objection to working on Saturday. The Court found that the disqualification from benefits burdened the free exercise of the worker’s religion and that no compelling state interest justified the infringement of the worker’s free exercise rights. In Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Court again applied a rigid standard in the free exercise context, speaking of the necessity of “a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” Eighteen years later, the Supreme Court decided Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), revisiting the principles espoused in Sherbert. At issue in Smith was whether two Native Americans who were fired from their jobs for ingesting peyote for sacramental purposes at a religious ceremony were entitled to unemployment benefits. The Court found that Oregon did not violate the Free Exercise Clause by denying benefits to the workers, noting that the Court had “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” 494 U.S. at 878-79, 110 S.Ct. 1595. In declining to apply the Sherbert “compelling interest” test to generally applicable laws like the one at issue in Smith, the Court noted that “[t]he government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” ’ Id. at 885, 110 S.Ct. 1595 (quoting Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 451, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)). Thus, in Smith, the Supreme Court limited the types of eases in which strict scrutiny would be applied. Three years after Smith, the Court decided Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (“Lukumi”). In Lukumi, the Court addressed the constitutionality of city ordinances that prohibited animal sacrifices for ritual purposes. In finding the ordinances unconstitutional, the Court concluded that the laws were not neutral and had been passed specifically for the purpose of stopping certain activities of one religious group; thus, the laws did not satisfy Smith. The facts of Lukumi were quite extreme — the evidence was overwhelming that in enacting the ordinances the City had intentionally targeted the practices of one religion throughout the City; zoning was not involved. The ordinances at issue plainly “regulate[d] or prohibited] conduct because it [wa]s undertaken for religious reasons.” Id. at 532, 113 S.Ct. 2217. The Court stated that “[although a law targeting religious beliefs as such is never permissible, if the object of a law is to infringe upon or restrict practices because of them religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.” Id. at 533, 113 S.Ct. 2217 (citations omitted). Finding that the ordinances at issue were not laws of “general applicability” like the one at issue in Smith, the Lukumi Court nevertheless declined to “define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.” Id. at 543, 113 S.Ct. 2217. The Court held that “[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny[,] ... must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” Id. at 546, 113 S.Ct. 2217. The Court recognized that “[a] law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” Id. The Lukumi Court thus clarified that notwithstanding Smith’s holding regarding laws of general applicability, laws that are not generally applicable and which burden the practice of religion are still subject to strict scrutiny. Although courts have wrestled with the issue of how to apply Smith and Luku-mi — particularly in the context of zoning— this Court is assisted by controlling precedent that dictates the proper course to be taken in this case. Even before the Smith Court had refined the standards of Sherbert, the Eleventh Circuit had decided Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir.1983), a decision which remains the law of this circuit and which governs the resolution of Plaintiffs free exercise claim. The facts of Grosz are strikingly similar" to those of the instant ease. The plaintiffs lived in a single-family residence in the City of Miami Beach in an “RS-4” zone — a zone for single-family residential use. A Miami Beach ordinance had been construed by the City to prohibit churches, synagogues, and similarly organized religious congregations in RS-4 zones. One of the plaintiffs was “a Rabbi and the leader of an orthodox Jewish sect.” Id. at 731. His religion required him “to conduct religious services twice daily in a congregation of at least ten adult males.” Id. One of the plaintiffs “ha[d] referred to the congregation as a shul, and a witness, who is a neighbor of plaintiffs, has testified that persons have come to her house asking for directions to the ‘Grosz shul.’ ” Id. at 731-32. The Groszes held religious services in their home at least twice each day. Id. at 732. Although the services “usually eause[d] no substantial disturbance to the neighborhood, ... well-attended services have disturbed neighbors as a result of persons seeking directions to the Grosz shul, as a result of chanting and singing during the services, and as a result of the occasionally large congregations of wor-shippers at the property.” Id. The Grosz-es were given a “notice of violation” of the zoning ordinance by the City. “The City did not and would not prosecute plaintiffs for praying in their home with ten friends, neighbors, and relatives, even on a regular basis.” Id. However, the notice of violation “was issued because of the City’s view that [the Groszes’] twice daily performance of religious ceremonies on their property conflict[ed] with [the] use restrictions [in the ordinance]. This conclusion stems from the City’s position that religious ceremonies conducted on the Grosz property occasionally constitute^] organized, publicly attended religious services.” Id. (footnote omitted). Churches, synagogues, and other religious institutions were permitted to operate in all other zoning districts except the RS-4 district, and at least half of the City’s area was zoned such that religious uses were permitted. Id. Thus, it was possible for the plaintiffs to conduct the services “in many other areas within the City of Miami Beach, including an area within four blocks of their home.” Id. at 731. The Groszes brought suit in federal district court, contending that the ordinance was facially unconstitutional as overbroad and vague, as well as unconstitutional as applied against them. On cross-motions for summary judgment, the district court found the ordinance facially constitutional but that it was unconstitutional as applied to the Groszes because it burdened their free religious exercise and the City’s interest in enforcement of its zoning laws was not “a compelling state interest.” Id. at 733. The Eleventh Circuit reversed, concluding that the zoning ordinance did not violate free exercise. The court began by noting that the Miami Beach ordinance passed two threshold tests — it regulated conduct rather than beliefs, and it had both a secular purpose and effect. The court then proceeded to balance the interests of the government against the plaintiffs’ religious interests, noting that “the balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity. This principle marks the path of least impairment of constitutional values.” Id. at 734. The Eleventh Circuit discussed the burden on the government: The City of Miami Beach asserts a governmental interest in enforcing its zoning laws so as to preserve the residential quality of its RS-4 zones. By so doing the City protects the zones’ inhabitants from problems of traffic, noise and litter, avoids spot zoning, and preserves a coherent land use zoning plan. The Supreme Court has acknowledged the importance of zoning objectives, stating that segregation of residential from nonresidential neighborhoods “will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children by reducing traffic and resulting confusion, ... decrease noise ... [and] preserve a more favorable environment in which to raise children.” The City asserts a significant governmental objective in the case at bar. Gatherings for. organized religious services produce, as do other substantial gatherings of people, crowds, noise and disturbance. In fact, the parties’ stipulations reveal that the City was acting pursuant to neighbors’ complaints to end the disturbance caused by Appellees’ conduct. Given this total inconsistency between the accomplishment of the City’s policy objectives and the continuance of Appellees’ conduct, the government action in this case easily passes the least restrictive means test. Doctrine also requires that we consider the impact of a religious based exemption to zoning enforcement. In that regard we find that granting an exception would defeat City zoning policy in all neighborhoods where that exception was asserted. Maintenance of the residential quality of a neighborhood requires zoning law enforcement whenever that quality is threatened. Moreover, no principled way exists to limit an exception’s costs just to the harm it would create in this case. Crowds of 500 would be as permissible as crowds - of 50. Problems of administering the exception such as distinguishing valid religious claims from feigned ones, therefore, need not even be considered. A religion based exception would clearly and substantially impair the City’s policy objectives. Together, the important objectives underlying zoning and the degree of infringement of those objectives caused by allowing the religious conduct to continue place a heavy weight on the government’s side of the balancing scale. Id. at 738-39 (emphasis added) (citations omitted). Turning to the burden on the Groszes’ religious interests, the Eleventh Circuit noted that Naftali Grosz’s religion “requires him to conduct religious services twice daily in the company of at least ten adult males.” Id. at 739. Although the court found that the solicitation of persons to attend the services and participation of groups larger than ten were “not integral to [Grosz’s] faith,” the court assumed “that the nonessential practices further the religious conduct [and] ... that [the Groszes] suffer some degree of burden on their free exercise rights.” Id. In measuring the degree of the Groszes’ burden, the Eleventh Circuit noted that the city had not prohibited religious conduct but instead “prohibit[ed] acts in furtherance of this conduct in certain geographical areas.” Id. at 739. Indeed, “publicly attended religious activities” were permitted in all but the RS-4 single family zoning districts. Id. The court thus concluded that the Groszes could “conduct the required services in suitably zoned areas, either by securing another site away from their current house or by making their home elsewhere in the city” and that “[i]n comparison to the religious infringements analyzed in previous free exercise cases the burden here stands towards the lower end of the spectrum.” Id. In assessing the “final balance” between the government interest and the religious interest at issue, the Grosz court concluded that in light of “the substantial infringement of the City’s zoning policy that would occur were the [Groszes’] conduct allowed to continue ... the burden upon government to allow [the Groszes’] conduct outweighs the burden upon the [Groszes’] free exercise interest.” Id. at 741. Thus, the Eleventh Circuit determined that the city was entitled to enforce its zoning ordinance notwithstanding the limitations the ordinance imposed on the Groszes’ religious activities. Grosz is indistinguishable from the instant case and is therefore controlling. Like the City of Miami Beach, Orange County has a legitimate interest in enacting and enforcing its zoning laws, and like the burden on the Groszes’ interest, the incidental burden on Plaintiffs religious exercise is not sufficient to outweigh these important government interests. Under this binding Eleventh Circuit precedent, the Orange County zoning scheme simply does not violate Plaintiffs free exercise rights either on its face or as applied. Plaintiff argues that the Grosz court did not apply the strict scrutiny required here. Under such an analysis, a government action that substantially burdens religious exercise is permissible only where that action furthers a compelling government interest through the least restrictive means. However, it is far from clear that in Grosz the Eleventh Circuit did not in essence apply such scrutiny. Although the court did not use the term “strict scrutiny” in its opinion, it specifically stated that the burden on the Groszes “stands toward the lower end of the spectrum,” that the city’s zoning scheme served a “significant governmental objective,” and that “the government action in this case easily passes the least restrictive means test,” 721 F.2d at 738-39. Notably, the Grosz district court had determined that the city’s interest was not a “compelling interest,” and the appellate court’s reversal of the district court’s ultimate finding of a free exercise violation means that either the standard or the application of that standard was not correct; either way, in light of the holding of Govsz, any difference between the Eleventh Circuit’s analysis in Grosz and the strict scrutiny analysis urged by Plaintiff is of no consequence. It is important to note that although Grosz was decided before Lukumi, it was decided at a time when strict scrutiny was the prevailing standard for free exercise claims in non-zoning contexts. And, significantly, the Eleventh Circuit has since reaffirmed Grosz’s validity and has expressly rejected the argument that it was overruled by Lukumi. In First Assembly of God of Naples, Florida, Inc. v. Collier County, 20 F.3d 419, 423 n. 4 (11th Cir.1994), the court specifically stated: “First Assembly argues that Grosz can no longer be considered good law because the district court relied on Grosz in deciding [Lukumi] and was reversed. We disagree. The Supreme Court [in Lukumi ] reversed the application of Grosz, not the holding of Grosz itself or the reasoning behind it. Therefore, the Grosz case, correctly applied, still has precedential value in this circuit.” (Citations omitted). Thus, -regardless of how the Grosz analysis is characterized, Govsz is binding on this court notwithstanding Lukumi and is factually indistinguishable, and Plaintiffs complaints that in Grosz the Eleventh Circuit employed the “wrong” analysis are unavailing. In any event, Plaintiffs claim that the zoning ordinance or the Defendants’ enforcement thereof violated the Free Exercise Clause would fail under a “straight” strict scrutiny analysis because Plaintiff has not presented evidence that the ordinance substantially burdens the free exercise of his religion. First, Plaintiff did not even bother to apply for a special exception from the zoning restrictions as allowed by the ordinance. The mere requirement that one apply for a special exception from an ordinance restricting the use of property is not a substantial burden. In Hale O Kaula Church v. Maui Planning Comm’n, 229 F.Supp.2d 1056, 1074 (D.Haw.2002), the district court concluded that strict scrutiny was the pertinent test to apply to a dispute involving a church’s right to operate in an agricultural zone but determined that it was premature to apply that standard because the church had not submitted an application for permission to hold church services on the property. A similar result was reached by the Supreme Court of Washington in a case in which it held that a church must exhaust its administrative remedies, including applying for a conditional use permit, and that the church could not merely predict that it would be denied such a permit. Open Door Baptist Church v. Clark County, 140 Wash.2d 143, 995 P.2d 33, 42 (2000). Had Plaintiff applied for and been denied a special use permit, the denial of that permit would not constitute a substantial burden on his religious exercise. The facts here are indistinguishable from those of Grosz, where the Eleventh Circuit “assumed some degree of burden” due to the zoning restriction but ultimately determined that the burden on free exercise was “towards the lower end of the spectrum.” 721 F.2d at 739; see also Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, 250 F.Supp.2d 961, 986 (N.D.Ill.2003) (“The City asserts that the Ordinance restricts nothing more than the location of religious practice and conduct and therefore does not substantially burden Vineyard’s free exercise of religion. There is substantial case law which supports the City’s proposition.”) (emphasis in original). Moreover, had Plaintiff established the existence of substantial burden, the County has in turn satisfied its burden on the compelling interest and least restrictive means prongs of strict scrutiny. In Grosz, the Eleventh Circuit noted that Miami Beach had asserted a “significant governmental objective,” 721 F.2d at 738, and rejected the district court’s ultimate finding of a free exercise violation, which was based in part on the district court’s conclusion that the government interest was not “compelling,” 721 F.2d at 733. A government’s interest in zoning is indeed compelling. See Murphy v. Zoning Comm’n of the Town of New Milford, 289 F.Supp.2d 87, 108-09 (D.Conn.2003) (finding that zoning commission had established “a compelling interest in ‘enforcing the town’s zoning regulations and ensuring the safety of residential neighborhoods” ’) (quoting its prior preliminary injunction order); First Baptist Church of Perrine v. Miami-Dade County, 768 So.2d 1114, 1117 (Fla. 3d DCA 2000) (“[E]ven assuming that the Church has demonstrated a substantial burden on its free exercise of religion, the County clearly has a compelling interest in enacting and enforcing fair and reasonable zoning regulations.”) (citation omitted); cf. Elsinore Christian Ctr. v. City of Lake Elsinore, 291 F.Supp.2d 1083, 1093-95 (C.D.Cal.2003) (noting that “concerns regarding the vitality of city life are of paramount importance in land use planning” and “assuming, without deciding, that curbing urban blight is a ‘compelling interest’ ”). And, in Grosz, the Eleventh Circuit found that “[g]iven [the] total inconsistency between the accomplishment of the City’s policy objectives and the continuance of Appellees’ conduct, the government action in this case easily passes the least restrictive means test.” 721 F.2d at 738. Thus, the Orange County zoning scheme survives strict scrutiny. In sum, Grosz is controlling here, and no matter what test is applied, the Orange County zoning scheme is constitutionally sound and does not violate the Free Exercise Clause of the United States or Florida constitutions. Thus, Defendants are entitled to summary judgment on Count I. 2. RLUIPA (Count IV) In Count IV, Plaintiff alleges that the Orange County zoning laws violate the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc to cc-5. Defendants, however, contend that Plaintiff cannot establish that the Defendants have violated RLUIPA, and in the alternative, they maintain that RLUIPA is unconstitutional. RLUIPA was enacted in 2000, three years after the United States Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), held a broader religious protection statute, the Religious Freedom Restoration Act of 1993 (“federal RFRA”), unconstitutional as beyond the scope of Congress’s enforcement power under Section 5 of the Fourteenth Amendment. RLUIPA provides in pertinent part that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution ... is in furtherance of a compelling governmental interest ... and is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc(a)(1). Under RLUIPA, the plaintiff bears the burden of persuasion on the issue of whether a governmental action imposes a substantial burden on religious exercise, but the government bears the burden as to “compelling interest” and “least restrictive means.” 42 U.S.C. § 2000ce-2(b). Defendants assert that Plaintiff has not demonstrated that his religious exercise has been substantially burdened by the requirement of the ordinance that Plaintiff seek a special exception. Defendants maintain that even if Plaintiff had presented evidence of such a substantial burden, the ordinance and the enforcement thereof do further a compelling government interest through the least restrictive means. As discussed in connection with Count I above, the Defendants are correct on all of these points. As was the case with respect to Plaintiffs free exercise claim in Count I, Plaintiff has not established that his religious exercise has been substantially burdened, and the same result obtains under RLUI-PA. Although RLUIPA does not define “substantial burden,” it does provide as part of its definition of “religious exercise” that “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” 42 U.S.C. § 2000cc-5(7)(B). This broad definition of “religious exercise” does not, however, render the denial of a special exception under a zoning code a “substantial burden” on religious exercise. As the Seventh Circuit recently held in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.2003): Application of the substantial burden provision to a regulation inhibiting or constraining any religious exercise, including the use of property for religious purposes, would render meaningless the word “substantial,” because the slightest obstacle to religious exercise incidental to the regulation of land use — however minor the burden it were to impose— could then constitute a burden sufficient to trigger RLUIPA’s requirement that the regulation advance a compelling governmental interest by the least restrictive means. We therefore hold that, in the context of RLUIPA’s broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise — including the use of real property for the purpose thereof within the regulated jurisdiction generally — effectively impracticable. (Emphasis in original). The Civil Liberties court went on to emphasize that while the procedural requirements of a special exception scheme, as well as scarcity of available land, “may contribute to the ordinary difficulties associated with location (by any person or entity, religious or nonreligious) in a large city, they do not render impracticable the use of real property in [the city] for religious exercise, much less discourage churches from locating or attempting to locate in [the city].” Id. Additionally, the mere fact that zoning provisions might make religious exercise more expensive does not amount to a substantial burden under RLUIPA; “[o]ther-wise, compliance with RLUIPA would require municipal governments not merely to treat religious land uses on an equal footing with nonreligious land uses, but rather to favor them in the form of an outright exemption from land-use regulations. Unfortunately for Appellants, no such free pass for religious land uses masquerades among the ... protections RLUIPA affords to religious exercise.” Id. at 762; see also Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, 250 F.Supp.2d 961, 991 (N.D.Ill.2003) (“Vineyard’s claim under Section (a)(1) of the RLUIPA fails, however, for the same reasons its free exercise claim failed. The history of the statute demonstrates that Congress did not intend to change traditional Supreme Court jurisprudence on the definition of substantial burden.”); 146 Cong. Rec. S7774-01, S7776 (“The Act does not include a definition of the term ‘substantial burden’ because it is not the intent of this Act to create a new standard for the definition of ‘substantial burden’ on religious exercise. Instead, that term as used in the Act should be interpreted by reference to Supreme Court jurisprudence.... The term ‘substantial burden’ as used in this Act is not intended to be given any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden.”). Thus, because Plaintiff has not established a substantial burden on free exercise, his RLUIPA claim fails. Assuming Plaintiff had established that he had been substantially burdened, under RLUIPA the County would then have to show that the zoning scheme serves a compelling interest though the least restrictive means. Because the County has made these showings as noted above, Plaintiffs RLUIPA claim would fail at this later stage of analysis as well. The conclusion that no violation of RLUIPA has been established on the facts of the instant case is also consistent with the text of RLUIPA as a whole and the statute’s legislative history. For example, in addition to its “substantial burdens” provisions RLUIPA also proscribes “im-pos[ition] or implement[ation of] a land use regulation that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000ec(b)(l). The Orange County zoning scheme treats nonreligious assemblies and religious assemblies alike — no place of assembly is permitted as of right in an R-1A zone — and thus, this provision has been satisfied. Additionally, RLUIPA bars governments from “imposing] or implementing] a land use regulation that — (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, -institutions, or structures within a jurisdiction.” 2000cc(b)(3). This provision suggests that Congress contemplated that religious assemblies could be reasonably limited within a jurisdiction, as Orange County has done through its zoning scheme, and religious assemblies clearly are not totally excluded from Orange County. The legislative history of the statute also reflects that although Congress was concerned with discrimination against religious organizations, it did not intend to reheve such organizations from zoning ordinances or from special permit requirements. A joint statement issued by the sponsors of the legislation, Senators Orrin Hatch and Ted Kennedy, specifically explains that “[t]his Act does not provide religious institutions with immunity from land use regulation, nor does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or other relief provisions' in land use regulations, where available without discrimination or unfair delay.” 146 Cong. Rec. S7774-01, at *S7776. Clearly, it was not the intent of Congress to force municipalities to allow their residents to operate a religious institution in a residential subdivision. In light of the Court’s conclusion that no RLUIPA violation has been established, the Court need not reach the question of RLUIPA’s constitutionality. It is “ ‘[a] fundamental and long-standing principle of judicial restraint ... that courts avoid reaching constitutional questions in advance of the necessity of deciding them.’ ” See, e.g., Elsinore Christian Center v. City of Lake Elsinore, 291 F.Supp.2d 1083, 1087-88 (C.D.Cal.2003) (quoting Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)). 3. Florida RFRA (Count V) In Count V, Plaintiff asserts that the zoning laws violate Florida’s Religious Freedom Restoration Act (“Florida RFRA”), Sections 761.01-05, Florida Statutes. Defendants make the same arguments as to Florida RFRA as they do with regard to RLUIPA — that it has not been violated and that it is unconstitutional. Florida RFRA was enacted in 1998, one year after the Supreme Court decided City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), holding-federal RFRA unconstitutional. Like RLUIPA, Florida RFRA provides that the “government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (a) [i]s in furtherance of a compelling governmental interest; and (b) [i]s the least restrictive means of furthering that compelling governmental interest.” § 761.03(1), Fla. Stat. As discussed earlier in connection with the Free Exercise and RLUIPA counts, Plaintiff has not established a claim under these standards. See also First Baptist Church of Perrine v. Miami-Dade County, 768 So.2d 1114, 1117 (Fla. 3d DCA 2000) (rejecting Florida RFRA claim, noting that “the burden on the County of altering the enforcement of its zoning ordinances to accommodate the Church’s requests would be much greater than any burden placed on the Church’s religious activity by requiring that it comply with the Zoning Board’s decision” and that “even assuming that the Church has demonstrated a substantial burden ..., the County clearly has a compelling interest in enacting and enforcing fair and reasonable zoning regulations”) (citation omitted). Hence, Plaintiff has not presented evidence supporting a claim under Florida RFRA, and the Court need not reach the issue of the constitutionality of Florida RFRA. A Equal Protection (Count II) Plaintiff alleges in Count II that the zoning laws, both on their face and as applied to him, violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Florida Constitution. The essence of equal protection is “that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiff argues that the OCC zoning provisions on their face violate equal protection because they treat religious uses of property differently from similar secular uses. Specifically, Plaintiff contends that three secular uses — -model homes, home-based occupations, and day care centers— are allowed in R-1A zones even though they are “commercial activity.” (See Doc. 168 at 7). Plaintiff asserts that the allowance of these three uses as permitted uses — without the need for a special exception — in R-1A zones violates the Equal Protection Clause. The OCC does allow model homes as a permitted use in R-1A zones, (see OCC § 38-77, Use Table, at 2826), and it provides a condition on them: “Model homes ... shall only be [permitted] in conjunction with an approved preliminary subdivision plan.” (OCC § 38-79(125); see also OCC § 38-77, Use Table, at 2826 (listing this condition on model homes in use table)). Although Plaintiff contends that the allowance of model homes as a permitted use in R-1A zones violates equal protection, model homes are different in character from religious institutions. Model homes are designed to facilitate sales of residences in the neighborhood and are temporary in nature. Although model homes would, for a time, bring traffic and visitors into a neighborhood, once the homes are sold the traffic would cease. The people who live in such a neighborhood likely had visited the model home before they bought their own homes in that neighborhood, were aware of the presence of the model home, and have no colorable basis to complain about its presence in their neighborhood. They are on notice of such traffic when they purchase in that neighborhood, and they can anticipate that when the area has been bought out that traffic will cease. By contrast, people who purchase a home in a residential area would not expect to have to deal with traffic from a religious institution in their neighborhood indefinitely. Model homes simply are not analogous to religious institutions or to nonreligious places of assembly. The difference between these types of uses lies in part in the reasonable expectations of residents, and the allowance of model homes in R-1A zones does not violate equal protection. “Home occupations” are also allowed as a permitted use in R-1A zones. (See OCC § 38-77, Use Table, at 2825). The OCC defines “home occupation” as follows: Home occupation shall mean any use conducted entirely within a dwelling or accessory building and carried on by an occupant thereof, which use is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the character thereof; and provided, that all of the following conditions are met: Only such commodities as are made on the premises may be sold on the premises. However, all such sales of home occupation work or products shall be conducted within a building and there shall be no outdoor display of merchandise or products, nor shall there be any display visible from outside the building. No person shall be engaged in any such home occupation other than two (2) members of the immediate family residing on the premises. No mechanical equipment shall be used or stored on the premises in connection with the home occupation, except such that is normally used for purely domestic or household purposes. Not over twenty-five (25) percent of the floor area of any one (1) story shall be used for home occupation purposes. Fabrication of articles such as commonly classified under the terms “arts and handicrafts” may be deemed a home occupation, subject to the other terms and conditions of this definition. Home occupations shall not be construed to include barber shops, beauty parlors, plant nurseries, tearooms, food processing,' restaurants, sale of antiques, commercial kennels, real estate offices, or insurance offices. OCC § 38-1, at 2810.1 (emphasis in original). This definition of “home occupation” is very limited and minimizes the chances of parking or traffic problems resulting therefrom. Occupations likely to draw patrons into the residential area are not within the definition; instead, “home occupations” are those that involve activity of an occupant of the home, within the home. Allowance of such a use is consistent with the residential character of the R-1A zone and is not likely to disrupt neighbors, and Plaintiffs equal protection challenge based on this permitted use also fails. The final “commercial activity” upon which Plaintiff relies in his facial Equal Protection challenge is “daycare.” Although Plaintiff uses only the word “daycare” in his memorandum (See Doc. 168 at 7), not all types of “daycare” facilities are allowed as of right in R-1A zones. “Family day care homes” are permitted (see OCC § 38-77, Use Table at 2826), but “day care centers” require a special exception (see OCC § 38-77, Use Table at 2843), as do “Adult/child day care homes” and “adult/child day care centers” (see OCC § 38-77, Use Table at 2826). The “family day care homes” that are permitted without a special exception in an R-1A zone are defined in the Code as follows: Family day care home, as defined in [Florida Statute] § 402.302(5), shall mean a residence in which child care is regularly provided for no more than ten (10) children. This shall include a maximum number of five (5) preschool children plus the elementary school siblings of the preschool children including the caregiver’s own. OCC § 38-1, at .2810. This is a very limited definition and one that plainly is designed to minimize traffic; a maximum of five outside families would employ the services of such a center, and hence a maximum of five cars would be brought into the neighborhood for drop-off and pick-up. By contrast, a “day care center” — which, like a religious organization, requires a special exception to operate in an R-1A zone — is defined as “a structure in which the owner or operator, for compensation, provides supervision and temporary care for more than ten (10) persons, who are not related by blood or marriage and not the legal wards or foster children of the owner or operator.” OCC § 38-1, at 2808. Additionally, in order for a “day care center” to operate within an R-1A zone even with a special exception, “permanent parking” must be provided for its patrons. OCC § 38-79(26)c.1.; OCC § 38-1476(a); OCC § 38-77, Use Table, at 2843 (providing for conditions on day care centers in R-1A zones). The permanent parking required for such centers consists of “1 space for each 10 children, plus a pickup and dropoff area equal to 1 space for each 10 children.” OCC § 38-1476(a). The differences between “family day care homes,” which are permitted in R-1A zones, and “day care centers,” which, like religious organizations, require a special exception to operate in such zones, are obvious. In sum, none of the three secular uses identified by Plaintiff is similar to a “religious organization” use for an R-1A zone. Like other places of assembly that would likely result in traffic and congestion, religious organizations are not permitted as a matter of right in such zones. Moreover, there are hundreds of other uses that are not allowed in an R-1A zone even with a special exception. Thus, Plaintiffs facial Equal Protection challenge fails. Plaintiff also argues that the OCC violates equal protection as it has been applied against him because other, similarly situated persons have received more favorable treatment. “[I]n order to maintain an equal protection claim with any significance independent of the free exercise count which has already been raised. [Plaintiff] must also allege and prove that [he] received different treatment from other similarly situated individuals or groups.” Brown v. Borough of Mahaffey, 35 F.3d 846, 850 (3d Cir.1994). Plaintiff has failed to do so. Plaintiff contends that other religious groups received more favorable treatment because they have been permitted to meet in residences without being cited. However, the evidence presented before the Board regarding Bible study groups showed that those groups were not similarly situated to Plaintiff. First, those groups met once a week. Although one pastor did make a vague statement at the hearing that his church’s prayer groups meet at most 2-3 times per week (Ex. 1 to Doc. 205, at 53), no evidence was presented that any other group met with a frequency similar to that of the assemblies occurring at Plaintiffs property. Additionally, aside from the difference in frequency, the overwhelming evidence regarding the advertising, signage, and the manner in which Plaintiffs property was held out to the public distinguish it from the once-a-week in-home Bible study groups. Thus, Plaintiff has not presented evidence that, based on what was presented at the Code Enforcement Board hearing, the Defendants treated him less favorably than they treated similarly situated persons. On his as-applied equal protection challenge, Plaintiff urges this Court to consider evidence that was not before the Code Enforcement Board. As noted earlier, in their first summary judgment motion Defendants had relied on this type of evidence and Plaintif