901 F.2d 989 (11th Cir. 1990), 89-5022, Bannum, Inc. v. City of Fort Lauderdale

Docket Nº:89-5022.
Citation:901 F.2d 989
Party Name:BANNUM, INC. and Bannum Properties, Inc., Plaintiffs-Appellants, v. CITY OF FORT LAUDERDALE, et al., Defendants-Appellees.
Case Date:May 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 989

901 F.2d 989 (11th Cir. 1990)

BANNUM, INC. and Bannum Properties, Inc., Plaintiffs-Appellants,


CITY OF FORT LAUDERDALE, et al., Defendants-Appellees.

No. 89-5022.

United States Court of Appeals, Eleventh Circuit

May 21, 1990

As Amended May 24, 1990.

Page 990

Scott T. Wendelsdorf, Ogden & Robertson, Louisville, Ky., George K. Rahdert, Rahdert & Anderson, Randee K. Carson, St. Petersburg, Fla., for plaintiffs-appellants.

Robert H. Schwartz, Gunther & Whitaker, P.A., Ft. Lauderdale, Fla., for defendants-appellees.

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

Before FAY and EDMONDSON, Circuit Judges, and HALTOM [*], District Judge.

FAY, Circuit Judge:

This case involves the significant concern for placing formerly incarcerated individuals back into communities, where they may earn a living and resume their lives outside of prison. Plaintiff-appellant Bannum, Inc. (Bannum) operated a supervised residential program for ex-offenders in Fort Lauderdale, Florida. Although the Fort Lauderdale zoning authorities initially approved Bannum's operation, this approval subsequently was withdrawn, and Bannum was unable to relocate its supervised residential program in Fort Lauderdale. Requesting a declaratory judgment and injunctive relief, Bannum brought this action against the City of Fort Lauderdale and various city administrative boards and officials. The district court granted summary judgment

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to all defendants on the bases of absolute, qualified and municipal immunity. While we affirm the district court's granting summary judgment to the administrative and individual defendants, we vacate judgment as to the City of Fort Lauderdale and remand for consideration of constitutional issues and pendent state claims that have not been addressed.

I. Factual Background

The Bannum plaintiffs-appellants, Kentucky corporations authorized to transact business in Florida, provide supervised residential programs nationally for ex-offenders in conjunction with the United States Bureau of Prisons. Program participants, convicted felons of non-violent crimes, have been incarcerated and are in the last stage of their sentence before release. 1 Participants are selected after screening in order to determine which eligible inmates appear likely to become productive members of society. During the day, the ex-offenders learn job-training skills and receive job counseling within the communities in which they desire to work and live upon completion of their sentence. At night, they reside in a specified, supervised residential facility.

In April, 1985, the Fort Lauderdale zoning authorities approved Bannum's use of leased rooms at the Areca Palms Motel, 905 N.E. 18th Avenue in Fort Lauderdale for its ex-offender, supervised residential program. The decision to issue an occupational license is based upon a description of the activities conducted on the subject premises as well as a determination that the zoning is proper. 2 The Areca Palms Motel is located in a zoning district which permits multi-family residences, apartment houses, motels, hotels, foster homes, mobile home parks, convents, fraternity and sorority houses. Fort Lauderdale, Fla., Code Sec. 47-11.1 (1985). The zoning authorities insisted that Bannum locate its office elsewhere and obtain a license for that office. Bannum located its business office at 1776 East Sunrise Boulevard in Fort Lauderdale. Thereafter, the requisite city and county licenses were issued, and Bannum commenced operation of its ex-offender, supervised residential program at the Areca Palms Motel pursuant to a contract with the United States Bureau of Prisons.

Bannum's program participants used the motel only for overnight housing and engaged in their work-related activities during the day. Edward Reilly, manager of the Areca Palms Motel during 1985 through 1986 when Bannum operated its program there, testified by affidavit that the program participants used the motel as did the other guests. 3 He stated that the program participants were not restrained or held in custody and that he neither encountered any disturbance, vandalism or any problems whatsoever from them nor received any complaints of disorderly, abusive, threatening or unlawful conduct during their residence. 4 Reilly described the Bannum participants as model residents and stated that he "wished that all the motel's guests were as well-behaved and quiet as were the Bannum participants." 5

Although Bannum's program had operated without incident or interference from the city, by December, 1985, with knowledge of the existence of the program in their community, neighbors and police officers objected to the housing of ex-offenders at the Areca Palms Motel. 6 Subsequently, the city reversed its previous determination that zoning was proper and decided that Bannum's use of the Areca Palms Motel as residential housing for its program participants constituted a "custodial facility" requiring a special use permit under section 47-11.1.1. (d) of the Fort

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Lauderdale Code of Ordinances. 7 Significantly, the "custodial facility" designation existed in the Fort Lauderdale Code of Ordinances in April, 1985, when Bannum sought and received licensing by the city for its program at the Areca Palms Motel. 8 The term "custodial facility" is not defined in the Fort Lauderdale Code of Ordinances. 9

Although Bannum held occupational licenses to conduct its supervised residential program at the Areca Palms Motel, the Fort Lauderdale Enforcement Board cited the motel owner, Gordon Johnson, with a notice of violation and threatened to impose fines of $250.00 per day until he evicted Bannum and the residing program participants. 10 Areca Palms Motel manager Reilly by affidavit stated that city officials told him that he must remove Bannum, ending the matter, or incur the daily fine. 11 Following the threat of a fine, Reilly ordered Bannum to vacate the rooms assigned to it on December 19, 1985. 12

Motel owner Johnson appealed the decision of the Code Enforcement Board to the Board of Adjustment, the city's highest policymaking body regarding zoning. The appeal was heard by the Fort Lauderdale Board of Adjustment on February 12, 1986. 13 Witnesses discussed various aspects of Bannum's voluntary, supervised residential program. Participants had to be in their rooms by midnight, signified by a punch card. Lody Leslie, supervisor of Bannum's program, explained that counseling occurred at the Bannum business office and that the program participants merely spent the night at the motel, where there were no guards or custodians. Frank Paglimanite, the Fort Lauderdale code compliance inspector who investigated the premises and determined that the Areca Palms Motel violated the city ordinance because it was a custodial facility, stated that he considered a curfew equivalent to detention. He conceded, however, that he had not cited motels, housing visiting football teams with 11:00 P.M. curfews, as being

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custodial facilities. "[I]t was just a particular type of custodial facility which offended his sensibility as the inspector." 14

Furthermore, a Fort Lauderdale police sergeant, who inspected the motel premises on three occasions for compliance with local and state license permits, reported that he could not identify participants in Bannum's program as prisoners. His rather unique definition of custodial facility was responsibility to someone, rules or morals and not physical restraint. Residents in the vicinity of the Areca Palms Motel opposed housing convicts at the motel because of concerns regarding an increase in crime and a decrease in the quality of their neighborhood life. While there had been four stolen cars and vandalism in the area since Bannum's program had been in operation, no evidence was given that program participants were involved. Nearby condominium owners considered that the use of the Areca Palms Motel for ex-offenders would have a depreciating effect on the property values of their condominiums, although no supporting evidence was offered. An area resident complained that housing convicts at the motel would give unsuspecting tourists a negative attitude toward Fort Lauderdale. A unanimous vote of the Board of Adjustment upheld the citation of the Areca Palms Motel as being in violation of the custodial facility ordinance because it housed Bannum's program participants.

Motel owner Johnson appealed the decision of the Board of Adjustment to the Broward Circuit Court. The Code Enforcement Board approved the agreement between the City of Fort Lauderdale and Johnson that no fine would be levied on the property until thirty days after a judicial ruling. Bannum, however, already had vacated the Areca Palms Motel. Subsequently, the motel owner's appeal was dismissed, and no fines were imposed by the city.

Because of the contention of the City of Fort Lauderdale that Bannum was operating its program in an improper zone and the enforcement actions against Bannum and the motel owner, the Bureau of Prisons removed residents from the Areca Palms Motel on March 5, 1986. 15 In an effort to continue operations and to protect its contract with the Bureau of Prisons, Bannum, working with city officials, located an alternate site at 400 S.E. 31st Street, an eight-unit apartment complex in Fort Lauderdale. 16 Plaintiff-appellant Bannum Properties, Inc. contracted to purchase this property for the purpose of leasing apartments to Bannum for the residential and administrative functions of its program. 17 Bannum filed a site plan and an application for the new location with the Planning and Zoning Board in order to obtain the requisite special use permit. 18

On October 9, 1986, the staff of the Planning and Zoning...

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