Barber v. Rader

• Decision Date: 28 August 1972
• Docket Number: No. 71-628-Civ-CF.,71-628-Civ-CF.
• Citation: 350 F. Supp. 183
• Parties: Samuel and Sara BARBER et al., Plaintiffs, v. Milton RADER et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

350 F. Supp. 183

Samuel and Sara BARBER et al., Plaintiffs, v. Milton RADER et al., Defendants.

No. 71-628-Civ-CF.

United States District Court, S. D. Florida.

August 28, 1972.

William Manikas and David Cherry, Florida Rural Legal Services, Pompano Beach, Fla., for plaintiffs.

John Baker, Belle Glade, Fla., for defendant landlords, Rader, Multach, Collins and Nunn and Charles Goodlett.

Jerry Oxner, Asst. Atty. Gen., Department of Legal Affairs, Tallahassee, Fla., for Attorney General Robert L. Shevin.

Marvin U. Mounts, County Sol. for Palm Beach County, West Palm Beach, Fla., pro se.

Richard Joranby, Palm Beach, Fla., for William Heidtman, Sheriff of Palm Beach County.

Before DYER, Circuit Judge, and FULTON and FAY, District Judges.

ORDER

PER CURIAM.

This cause came before the Court upon plaintiffs' motion for a partial summary judgment and upon a motion for summary judgment filed by defendants Rader, Multach, Collins, and Nunn. All issues of material fact have been resolved by stipulation of counsel, with the exception of damages, if any, recoverable by the plaintiffs from the defendant landlords. In accord with the stipulations of counsel, this Court's order of February 2, 1972, and the Court's independent examination of this file, the Court finds that there remain no other issues of material fact. Rule 56, Fed.R. Civ.P.

This is an action brought pursuant to 42 U.S.C. § 1983. The plaintiffs allege that they have been deprived of procedural due process of the law by the defendant landlords' use and application of the Florida Landlord Lien statutes, Florida Statutes §§ 713.67, 713.68, and 713.69, F.S.A., and that these statutes are on their face constitutionally defective.

On February 27, 1971, defendant Rader caused a padlock to be placed on the apartment door of the plaintiffs Bowers. On April 12, 1971, defendant Nunn, acting on behalf of defendant Collins, padlocked the door to plaintiffs Barbers' apartment. And, on April 21, 1971, defendant Multach caused the door of the plaintiff Richardson's apartment to be padlocked. In each instance, the plaintiffs' apartments were locked with the plaintiffs' personal property within. In each instance, the apartment doors were locked for failure of the particular tenant to pay rent which was due. The apartment doors were padlocked without judicial process and without notice to the tenant. This was done in accord with Florida Statutes §§ 713.67, 713.68, and 713.69, F.S.A., Florida's landlord or innkeeper's lien statutes. In each case, the tenants were told that upon payment of the rent due, they could recover their lien-impressed personalty.

CLASS ACTION

Plaintiffs allege that this is a proper action for class relief and seek the establishment of a class for this purpose. However, in this instance, the Court finds it impossible to determine who, besides the named plaintiffs, would fit into such class or how such persons could be notified of this action. The named plaintiffs are all in the same position —they are tenants who have been ejected and whose personal belongings contained in their dwellings have become lien-impressed. They are not persons whose property may become lien-impressed in the future, or persons who may be ejected in the future.

Rule 23(a), Fed.R.Civ.P., provides that:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable. . . .

Plaintiffs have not shown that in this instance the class is so numerous that joinder of all members is impracticable, nor that there are any other parties who are now in plaintiffs' position. Thus, plaintiffs' request that this action be designated a class action should be denied.

STATUTES IN QUESTION

As stated, the issue in the case before this Court is whether the Florida Landlord's Lien statutes, §§ 713.67, 713.68, and 713.69, F.S.A., are unconstitutional in that they permit the taking of property without due process of the law.

Section 713.67, Florida Statutes, F.S. A., provides:

Liens for board, lodging, etc., at hotels, etc. In favor of keepers of hotels, apartment houses, and boarding houses for the board, lodging and occupancy of and for moneys advanced to guests or tenants, upon the goods and chattels belonging to such guests or tenants in such hotel, apartment house, rooming house or boarding house. . . . Upon the nonpayment of such sums . . . the keeper thereof may instantly eject such guests or tenants therefrom.

And Florida Statute § 713.68, F.S.A., provides:

Liens for hotels, apartment houses, rooming houses, boarding houses, etc. In favor of any person conducting or operating any hotel, apartment house, rooming house, boarding house or tenement house where rooms or apartments are let for hire or rental. Such lien shall exist on all the property including trunks, baggage, jewelry and wearing apparel, guns and sporting goods, furniture and furnishings and other personal property of any person . . . when such person shall occupy such room or apartment as tenant, lessee, boarder, roomer or guest for the privilege of which occupancy money or anything of value is to be paid to the person conducting or operating such establishment. Such lien shall continue and be in full force and effect for the amount payable for such occupancy until the same shall have been fully paid and discharged.

Section 713.69, Florida Statutes, F.S.A., makes it unlawful for any person to remove any property which is impressed with a Section 713.68 lien.

HOTELS AND RESTAURANTS

It should be stated at the outset that this case does not concern Section 509.141, Florida Statutes, F.S.A., nor any provision of §§ 713.67, 713.68, and 713.69 as they pertain to hotels. This case concerns landlord-tenant relations, where a tenant is a tenant at will, renting week to week, month to month, or year to year and where the rented premises are the tenants' permanent place of residence. See Florida Statutes §§ 83.01 and 83.02, F.S.A., and 20 Fla.Jur., Landlord and Tenant §§ 18-20.

LOCK-OUT OR INSTANT EJECTMENT

This cause does concern two different aspects of the statutes under consideration. First, the instant ejectment provision found in Section 713.67, and, second, the landlord lien provisions found in Sections 713.67, 713.68, and 713.69.

Section 713.67 provides that "upon the nonpayment of such overdue rent . . . the keeper thereof may instantly eject such guests or tenants therefrom." There are no enforcement provisions with regard to this instant ejectment; it is apparently a bare self-help provision. No process, much less "due" process in the form of notice, a hearing, or judicial participation of any sort, is required. The tenant is simply ejected or locked out, as in the case before this Court.

LIEN PROVISIONS

The remainder of § 713.67 and all of §§ 713.68 and 713.69 grant the landlord a lien over the personalty of the tenant if and when he becomes delinquent in his rent. These liens are enforced by means of Chapter 85, Florida Statutes, F.S.A.

Chapter 85, Florida Statutes, §§ 85.011 et seq., F.S.A., provides for the enforcement of all Chapter 713 liens, including the landlord's lien. Section 85.011 provides:

All liens on real or personal property provided for by part I or part II of Chapter 713, Florida Statutes, are enforceable by persons in privity with the owners, except when otherwise provided, as follows:

(1) Retention of possession.—By retention of possession of the property on which the lien has attached for a period not exceeding three (3) months by the person entitled to the lien, if he was in possession at the time the lien attached.

(2) By action in chancery.—By an action in chancery, however this is the exclusive remedy for enforcement of liens on the separate statutory property of married women and against estates by the entireties.

(3) Ordinary action at law.—By an ordinary action at law and levy of the execution obtained therein on the property on which the lien is held.

(4) Special action at law.—By an action at law in which the complaint shall state the manner in which the lien arose, the amount for which the lien is held, the description of the property and demand that the property be sold to satisfy the lien. The judgment for plaintiff is a personal judgment against defendant as well as a lien on the property, which it shall describe, and shall direct execution against the property, as well as against the property generally of defendant.

Apparently the landlord can utilize any one of these enforcement provisions; he is not restricted to one. However, none of the provisions provide for a bond to protect the tenant from wrongful claims, nor are there any time provisions requiring the landlord to bring an action either at law or in chancery before locking the tenant out and the tenant's property in. Nor is there a time provision requiring the landlord to bring an action within a specified time after such lockout. The lockout and imposition of the lien can all be accomplished without notice to the tenant. In fact, under § 85.011(1) the landlord could apparently proceed without ever bringing an action, or he need not bring one for three months.

Thus, it is apparent that under this statutory scheme the landlord could use self-help, at least initially, to impress the delinquent tenant's property with a Section 713.67, 713.68 lien and to instantly eject the tenant.

MOTIONS FOR SUMMARY JUDGMENT

In 1969 the United States Supreme Court held in Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), that the Wisconsin garnishment procedure, whereby a creditor could freeze one-half of the debtor's wages before judgment or service was an unconstitutional taking of property without notice or a prior hearing and violated fundamental principles of procedural due process. The Wisconsin statute in question in Sniadach required that the creditor...