764 F.2d 1416 (11th Cir. 1985), 84-3600, Peterman v. Coleman

Docket Nº:84-3600.
Citation:764 F.2d 1416
Party Name: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.
Case Date:July 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1416

764 F.2d 1416 (11th Cir. 1985)

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

Page 1417

[Copyrighted Material Omitted]

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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

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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.

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.

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...

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