Blumberg v. Pinellas County, 91-1255-CIV-T-17A.
| Decision Date | 09 November 1993 |
| Docket Number | No. 91-1255-CIV-T-17A.,91-1255-CIV-T-17A. |
| Citation | 836 F. Supp. 839 |
| Parties | Lynda BLUMBERG, as an individual plaintiff, and El Pasado Condominium Association, Inc., a Florida corporation, as representatives of a proposed class, Plaintiffs, v. PINELLAS COUNTY, a political subdivision of the State of Florida, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
F. Wallace Pope, Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Tampa, FL, for plaintiffs.
Joseph Arthur Morrissey, Pinellas County Attorney's Office, Clearwater, FL, for defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on cross-motions for and in opposition to final summary judgment. Also pending is Defendant's motion to dismiss. For the reasons hereinafter stated, the Court grants Plaintiffs' motion for summary judgment and denies Defendant's cross-motions.
This case is about water, specifically water provided to the citizen customers of the Pinellas County water system. Water is a necessity, without which life is not possible. Residential water hook-ups are not a luxury, such as for instance cable television (although some households may disagree with this observation), but are required for maintenance of public health and welfare. The issues raised here are of great concern to the general public. It is in this spirit that the Court turns to the issues at hand.
This case addresses whether an applicant for utilities who pays a deposit to a governmental entity is entitled to the interest which accumulates on the deposit. The first question before the Court is jurisdictional. Defendant argues that 28 U.S.C. § 1342, otherwise known as the "Johnson Act", precludes the Court from exercising jurisdiction. As Plaintiff correctly points out, this Court previously denied a similar Johnson Act motion to dismiss in Pope v. Clearwater, 767 F.Supp. 1147 (M.D.Fla.1991). The same reasoning applies to the present case. Although the Johnson Act has been interpreted to bar federal courts from exercising jurisdiction in utility rate cases, the relief Plaintiff seeks, if granted, would not in any way affect the rates established by Defendant. This Court accordingly finds the Johnson Act does not preclude it from exercising jurisdiction. Defendant's motion to dismiss is therefore denied.
Defendant also alleges that Plaintiffs' complaint is not "ripe" for federal judicial review because plaintiffs have not filed a state action for just compensation. In support, Defendant cites Reahard v. Lee County, 978 F.2d 1212 (11th Cir.1992), a case with similar issues, wherein the Eleventh Circuit remands with instructions that the district court make an express determination as to whether subject matter jurisdiction exists.
Defendant's ripeness argument relies on Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Williamson stands for the proposition that a property owner cannot claim a violation of the Fifth Amendment "just compensation" clause without first following whatever adequate State procedures exist for seeking just compensation. Id. Under both Williamson and Reahard, this Court must thus expressly determine whether an adequate procedure is available in Florida which would preclude Plaintiffs' federal claim.
Defendant refers to Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla.1990), as giving plaintiffs in regulatory takings cases the right to bring inverse condemnation proceedings. But upon examination, it is clear that the Florida Supreme Court was merely distinguishing an inverse condemnation remedy as no substitute for that of a property owner's remedy under eminent domain, which was the issue at hand. 563 So.2d at 627. The most that can be said from Joint Ventures is that the "right to seek relief through inverse condemnation is implied" in the Florida Constitution. Id.
Defendant also relies upon Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1542 (11th Cir.1991), alleging that the Eleventh Circuit recognizes that a constitutional right to bring inverse condemnation proceedings exists in Florida under Joint Ventures. But the existence of an implied constitutional right does not equate to a finding of an adequate state procedure for seeking just compensation, required to deny ripeness under Williamson. 473 U.S. 172 at 194-195, 105 S.Ct. 3108 at 3120-3121.
Although the Court finds Defendant's reliance on In re Forfeiture of 1976 Kenworth Truck, 576 So.2d 261 (Fla.1990) correct to show that neither real nor personal private property can be taken for public purpose without just compensation under the Florida Constitution, this again begs the question of whether an adequate state procedure exists.1
This Court finds Plaintiffs' reliance on Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th Cir.1987) more persuasive. In Corn, the Eleventh Circuit examined Florida law to determine whether an alternative remedy existed which would preclude a landowner's federal claim for money damages under 42 U.S.C. § 1983, arising as the result of a regulatory taking of property. Id. The Court of Appeals described how equitable relief was the exclusive remedy in Florida for a confiscatory zoning regulation under Dade County v. National Bulk Carriers, Inc., 450 So.2d 213 (Fla.1984). Id. at 1517.
The Florida Supreme Court based its decision in National Bulk Carriers on the fact of the exercise of state police power, which enabled the government to regulate the use of property for the benefit of the general health and well-being of its population. Corn, 816 F.2d at 1518. The Court of Appeals found that the Florida Supreme Court distinguished the use of regulatory police power, for which no action under inverse condemnation was possible, with the exercise of the power of eminent domain, under which Florida property owners have a right to seek money damages. Corn, 816 F.2d at 1518. The Eleventh Circuit pointed out that Justice Overton's concurring opinion in City of St. Petersburg v. Wall, 475 So.2d 662 (Fla.1985) stressed this distinction in Florida law. Id. The Court of Appeals further noted that zoning matters (which involve the use of the state's regulatory police power) should be viewed as "entirely distinct" from the availability of inverse condemnation under Florida law for such contexts as the rights of way for roads. Id. at 1519.2
Plaintiffs BLUMBERG and EL PASADO seek money damages as well as equitable relief in their initial complaint. This Court finds regulation of water utility deposits by county ordinance more analogous to a confiscatory zoning ordinance than to the exercise of state powers of eminent domain. The present case involves the exercise of the state regulatory police powers by the Defendant PINELLAS COUNTY.
Accordingly, the Court finds no adequate alternative remedy at law exists for Plaintiffs in Florida courts, based on Corn. Given the lack of any alternative remedy in Florida courts, the Court finds the "just compensation" determination necessary under Williamson County has been satisfied, that Plaintiffs' claim is ripe for federal judicial review, and that subject matter jurisdiction exists. Having expressly found jurisdiction, the Court now considers Plaintiffs' motion for summary judgment.
Rule 56 of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "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." Federal Rules of Civil Procedure 56(c).
The Supreme Court addressed summary judgment in the trilogy of 1986 cases of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), all of which require that the party seeking summary judgment identify evidence which shows the absence of a genuine issue of material fact. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355-56. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. at 249-50, 10 S.Ct. at 2511 (citations omitted).
This circuit follows, in Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir. 1983), requiring the moving party to sustain its burden of showing the absence of a genuine issue as to any material fact when the evidence is viewed in the light most favorable to the nonmoving party. Any doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First Nat'l Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir.1979).
These facts are not disputed by either party.
1) Defendant PINELLAS COUNTY operates utilities pursuant to Florida Statutes, Chapter 153.
2) PINELLAS COUNTY, through its Board of County Commissioners, is a rate making body of a state political subdivision, under Florida Statute § 153.03(3), (1991).
3) As of August 19, 1980, the Pinellas County Board of County Commissioners approved a revised "Pinellas County Water System Policy Manual".
4) Section 5.2, page 8 of the Policy Manual required that all utility customers pay a deposit to receive utility service.
5) Section 5.2, page 8 of the Policy Manual further directed that deposits be placed in an interest-bearing account, with all interest to be reinvested into the operation and...
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...and appropriate source for determining whether an adequate state remedy exists. Plaintiffs rely heavily on Blumberg v. Pinellas County, 836 F.Supp. 839 (M.D.Fla. 1993), for the proposition that inverse condemnation is not an available remedy in Florida for a regulatory taking. However, in B......