Peterman v. Coleman

• Decision Date: 09 July 1985
• Docket Number: No. 84-3600,84-3600
• Citation: 764 F.2d 1416
• Parties: Frank PETERMAN, Plaintiff, Bruce Horne, Plaintiff-Appellant, v. Gerry COLEMAN, in his official capacity as Sheriff of Pinellas County, FL, Pinellas County, Florida, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1416

764 F.2d 1416

Frank PETERMAN, Plaintiff, Bruce Horne, Plaintiff-Appellant, v. Gerry COLEMAN, in his official capacity as Sheriff of

Pinellas County, FL, Pinellas County, Florida,

Defendants-Appellees.

No. 84-3600.

United States Court of Appeals,

Eleventh Circuit.

July 9, 1985.

David E. Platte, Clearwater, Fla., for plaintiff-appellant.

Jean H. Kwall, Kwall & Rice, Joseph H. Saunders, Asst. County Atty., Clearwater, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE, ANDERSON and HENLEY ^*, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Pinellas County, Florida, enacted Ordinance No. 84-17 on May 22, 1984, to regulate businesses that deal in second-hand goods. Appellant Horne is the owner and operator of such a business. Ordinance No. 84-17 requires appellant to maintain records relating to his purchases of used goods, describing the goods in detail and identifying the person from whom any particular item is bought. Appellant must make these records available for inspection by law enforcement officers. The ordinance further requires that dealers in second-hand goods hold items they acquire for five days before reselling them.

Appellant and two other dealers in second-hand goods filed a complaint in federal district court seeking an injunction against enforcement of Ordinance No. 84-17. ¹ The sheriff of Pinellas County and Pinellas County, by and through its commissioners, were named as defendants in the action. The parties submitted memoranda of law on the appropriateness of injunctive relief, and plaintiffs filed their affidavits in which they asserted that the ordinance would impinge on their business by increasing their costs and by making potential buyers and sellers less willing to conduct business with them. Plaintiffs also submitted the affidavits of three Pinellas County residents who said that they were unwilling to comply with the identification requirements of the ordinance and that they would choose to sell their goods in adjoining counties if the ordinance were enforced.

The district court denied injunctive relief, rejecting the various constitutional challenges to the ordinance. Only plaintiff Horne appealed from the district court's order. On appeal, Horne challenges the ordinance on several constitutional grounds. We have considered each of these challenges and find none to have merit. Accordingly, we affirm the district court's order denying injunctive relief.

DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS

Appellant argues that since the ordinance's five-day holding period deprives him of his right to transfer possession of goods he has bought, his property is taken without compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Appellant further argues that the holding period deprives him of his property without procedural due process of law in violation of the Fourteenth Amendment.

Incidental impediments on the use of property are distinguished from more substantial effects that require compensation. "[A]cts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision." Northern Transportation Co. v. City of Chicago, 99 U.S. 635, 642, 9 Otto 635, 25 L.Ed. 336 (1879). Under Ordinance No. 84-17, appellant is free to transfer title Appellant's procedural due process argument is likewise without merit. Appellant relies principally on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which invalidated state statutes that allowed creditors to be awarded possession of debtors' property without notice and a hearing and prior to any judgment determining the parties' rights. The Court in Fuentes v. Shevin observed that "it is now well settled that a temporary, nonfinal deprivation of property is nonetheless a 'deprivation' in the terms of the Fourteenth Amendment." Id. at 84-85, 92 S.Ct. at 1996-97. The Court noted that "the Fourteenth Amendment draws no bright lines around three-day, 10-day, or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause." Id. at 86, 92 S.Ct. at 1997.

to his property at any time. The ordinance only requires that he retain possession until the five-day holding period has expired. Pinellas County Ordinance No. 84-17 at Sec. 2(e). Although the right to transfer possession of property is an important attribute of ownership, we cannot say that by briefly suspending this right the County has "taken" appellant's property. If indeed there is any diminution in value by virtue of a dealer's temporary inability to transfer possession, such an effect is too incidental to amount to a taking for which compensation is required under the Constitution.

The Court in Fuentes v. Shevin confirmed that when a fundamental right in property, such as the right of possession, is taken under color of state law, the temporary nature of the deprivation does not remove it from Fourteenth Amendment protection. In the present case, however, the ordinance does not deprive appellant of his right to possession of his property, but only requires that possession not be transferred for five days. This temporary curtailment of one possessory interest is clearly distinguishable from the complete deprivation of possession at issue in Fuentes v. Shevin.

Even if the ordinance's holding period requirement were considered to be a deprivation in the constitutional sense, however, we can readily conclude that appellant has received all the process that is due under the circumstances. The Supreme Court has recognized that determinations that are legislative in character may satisfy due process without the requirement of individualized notice and hearing for each instance in which a deprivation occurs. See Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915).

General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.

Id. at 445, 36 S.Ct. at 142. See also Bowles v. Willingham, 321 U.S. 503, 519-20, 64 S.Ct. 641, 649-50, 88 L.Ed. 892 (1944); United States v. Florida East Coast Railway Co., 410 U.S. 224, 244-45, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33, 102 S.Ct. 1148, 1155-56, 71 L.Ed.2d 265 (1982) ("In each case, the legislative determination provides all the process that is due ...").

In summary, we conclude that the five-day holding period in Ordinance No. 84-17 does not result in a "taking" of appellant's property so as to require compensation under the Fifth and Fourteenth Amendments. Furthermore, while the holding period may have some effect on one of appellant's interests in the property, we do not think this slight attenuation is a deprivation of property in the constitutional sense. To the extent that the holding period might amount to some slight deprivation, we conclude that the Pinellas County Commission in reaching its considered decision to impose the requirement furnished appellant all the process required under the Fourteenth Amendment.

FOURTH AMENDMENT SEARCH AND SEIZURE

The challenged ordinance requires appellant to maintain a register of his transactions in second-hand goods. The register must contain an accurate description of persons from whom articles are bought, as well as an accurate description of the property acquired. The register is required to be made on forms provided by Pinellas County law enforcement authorities, and "this documentation shall be made available for inspection by any law enforcement officer employed in Pinellas County." Pinellas County Ordinance No. 84-17 at Sec. 2(b). Appellant argues that the recordkeeping requirement permits a search and seizure without probable cause in violation of his rights under the Fourth Amendment to the United States Constitution, and that the intrusion allowed is unreasonable in that the ordinance does not sufficiently limit the time and manner of official access to the registers.

Constitutional bounds on government access to commercial premises and records have developed through a series of Supreme Court cases that start with the assumption that a search of private commercial property without proper consent is unreasonable under the Fourth Amendment unless the search is authorized by a valid search warrant. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). An exception to the warrant requirement is recognized, however, in certain industries in which government regulation is pervasive. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (sale of alcoholic beverages); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (sale of firearms). The Colonnade-Biswell exception has been extended by the Supreme Court to the field of mine safety, Donovan v. Dewey, 452 U.S. 594, 602, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981), and by lower federal courts to businesses dealing in perishable commodities, see Wayne Cusimano, Inc. v. Block, 692 F.2d 1025, 1028 (5th Cir.1982), and to warrantless inspection of pharmacy records, United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532, 537 (8th Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982); United States ex rel. Terraciano v. Montanye,...