Henniger v. Pinellas County

Decision Date25 June 1998
Docket NumberNo. 97-2838-Civ-T-17-A.,97-2838-Civ-T-17-A.
Citation7 F.Supp.2d 1334
PartiesJoan HENNIGER, Plaintiff, v. PINELLAS COUNTY, a Political Subdivision of the State of Florida, Defendants.
CourtU.S. District Court — Middle District of Florida

Jawdet I. Rubaii, Law Office of Jawdet I. Rubaii, Clearwater, FL, for Joan Henniger, Plaintiff.

James Lee Bennett, Pinellas County Attorney's Office, Clearwater, FL, for Al Navaroli, individually Defendant.

David Stanley Sadowsky, Pinellas County Attorney's Office, Clearwater, FL, for Pinellas County, a Political Subdivision of the State of Florida, Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT AND ORDER ON PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

KOVACHEVICH, Chief Judge.

This cause is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Docket No. 14), Defendants' Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Docket No. 24), Plaintiff's Response in Opposition to Motion to Dismiss Amended Complaint (Docket No. 20). Plaintiff's Motion for Summary Judgment and for Preliminary Injunction (Docket No. 22), Plaintiff's Memorandum in Support of Motion for Summary Judgment and Preliminary Injunction (Docket No. 23). and Defendant's Response in Opposition to Motion for Partial Summary Judgment (Docket No. 30).

DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT
POSTURE OF THE CASE

The Amended Complaint and Demand for Jury Trial [Injunctive Relief Sought] in this action was filed on February 12, 1998, (Docket No. 13). The relevant facts, as pled and accepted as true for the purposes of this motion only are summarized in the Court's previous order (Docket No. 29) and restated as follows:

Plaintiff owns real estate in Pinellas County, Florida. Plaintiff applied for and received a construction permit from Pinellas County to construct a "pool house" on her property. Plaintiff asserts that she has made a number of expenditures and has initiated construction in reliance on said permit. Plaintiff contends that the County initially inspected and approved all of the construction; however, the County subsequently issued a "stop work" order that brought Plaintiff's construction to a halt. Plaintiff asserts that the current state of the construction creates a nuisance on her property. Plaintiff claims that there was absolutely no reason to issue the stop work order and that her property is subject to damage because the roof was not completed before the order was issued. Moreover, Plaintiff asserts that the unfinished construction creates a health hazard on her property.

Defendant filed a Motion to Dismiss (Docket No. 14) claiming that this Court lacks jurisdiction over Plaintiff's causes of action and that Plaintiff has failed to state a claim upon which relief can be granted because Plaintiff has failed to seek appropriate administrative remedies at the state level.

STANDARD OF REVIEW

Under Conley v. Gibson, a district court should not dismiss a complaint for "failure to state a claim unless it appears beyond a doubt the Plaintiff can prove no set of facts" that would entitle the Plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see also Bracewell v. Nicholson Air Services, Inc., 680 F.2d 103, 104 (11th Cir.1982). To survive a motion to dismiss, a Plaintiff may not merely "label" his or her claims. Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum the Federal Rules of Civil Procedure require a "short plain statement of the claim" that will "give the Defendant fair notice of what the Plaintiff's claim is and the grounds upon which it rests," Conley, 355 U.S. at 47 (quoting Fed.R.Civ.P. 8(a)(2)).

In deciding a motion to dismiss, a court can examine only the four (4) corners of the complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla.1995). The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). Also, a court must accept a Plaintiff's well pled facts as true and construe the complaint in the light most favorable to the Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995). However, when. on the basis of a dispositive issue of law no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991); see also Powell v. United States, 945 F.2d 374 (11th Cir.1991).

DISCUSSION

The Amended Complaint contains the following causes of action against the County Count I — Arbitrary and Capricious Due Process Violation, claim under 42 U.S.C. § 1983. Count III — Equal Protection; Count IV — Substantive Due Process Violation claim under 42 U.S.C. § 1983. Count V — Injunctive Relief. and Count VI — Declaratory Action. The Court notes that there is no Count II in the Amended Complaint. The Court will discuss the grounds for dismissal and other issues raised by the defendant in the order they appear in the Memorandum in support of defendant's Motion to Dismiss.

Count I: Arbitrary and Capricious Due Process Violation under § 1983

Failure to State a Claim for Procedural Due Process

A violation of procedural due process may provide the foundation for a § 1983 claim. North Florida Educational Development Corp. v. Woodham, 942 F.Supp. 542, 550 (N.D.Fla.1996) (quoting Zinermon v. Burch, 494 U.S. 113, 125 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990)). In procedural due process claims, the deprivation by the state of a constitutionally protected interest in property is not itself unconstitutional. Zinermon, 494 U.S. at 125, 110 S.Ct. at 983. The unconstitutional act occurs when the deprivation is without due process of law. Woodham, 942 F.Supp. at 550. A valid procedural due process claim must contain two elements: (1) a deprivation of a protected interest; and (2) an absence of due process. Id. (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982)).

First, this Court considers the existence of a protected interest. It is a well established principle that a vested right may be created in a building permit under the doctrine of equitable estoppel. Hy Kom Development Co. v. Manatee County, 837 F.Supp. 1182, 1187 (M.D.Fla.1993) (quoting City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla.App. 4th DCA 1973) cert. denied 279 So.2d 871 (Fla.1973)). Equitable estoppel arises where a landowner has in good faith made some substantial change in position in reliance upon the permit. Id. (quoting City of Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867, 869-870 (Fla.App. 4th DCA 1973)).

Plaintiff alleges that she relied on the permit issued by Defendant and paid for a foundation, masonry, roof sheathing and wall framing. In addition, Plaintiff alleges that she purchased another parcel of land in reliance upon the permit. Plaintiff's alleged expenses as well as the substantial changes to the property made in reliance upon the permit are sufficient for this Court to find that Plaintiff has alleged a property interest in the building permit as to be accorded the protection of § 1983.

The Court considers the second element of the analysis: whether due process was accorded. Plaintiff alleges that she was denied procedural due process because she was denied a fair hearing, notice, and the opportunity to be heard prior to the issuing of the stop work order.

Defendant argues that Plaintiff failed to pursue available county and state remedies after the stop work order was issued, and moves to dismiss Count 1 for failure to state a claim. Defendant refers the Court to McKinney where the court held that a procedural due process claim is not complete "unless and until the State fails to provide due process." McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir.1994) (quoting Zinermon, 494 U.S. at 125, 110 S.Ct. at 983. 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100). McKinney continues, saying that a state may cure a procedural deprivation by providing a post-deprivation remedy. Id. Only when procedural remedies are denied does a constitutional violation become ripe under 42 U.S.C. § 1983. Id. Defendant argues that the Plaintiff has failed to allege a procedural due process violation because she has not claimed that the state deprived her of administrative remedies. Defendant further alleges that Plaintiff has not pled that it would have been futile to pursue county and state procedural remedies. Finally, the Defendant states that Plaintiff "could have, should have, but chose not to bring her procedural due process claim before a state appellate court judge" for a fair hearing and possible equitable relief. (Docket 14. ¶ 10).

This Court looks to the Supreme Court's holding in Parratt that due process does not require pre-deprivation hearings where such hearings would be impracticable, "that is, where the deprivation is the result of either a negligent or an intentional deprivation of property." McKinney, 20 F.3d at 1562-63 (quoting Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981)). The Supreme Court further held that due process merely requires a "post-deprivation `means of redress for property deprivations satisfy[ing] the requirements of procedural due process.'" Id. A violation of procedural due process only occurs when the state refuses to make available a means to remedy the deprivation. Id.

Defendant claims that, under Florida law, local governmental decisions on building permits are quasi-judicial in nature and thus are entitled to certiorari review. Park of Commerce Associates v. Delray Beach, 636 So.2d 12, 15 (Fla.1994). Defendant further alleges that Plaintiff failed to address this remedy either by...

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