Keshbro, Inc. v. City of Miami

• Court: Florida Supreme Court
• Writing for the Court: SHAW, J.
• Citation: Keshbro, Inc. v. City of Miami, 801 So. 2d 864 (Fla. 2001)
• Decision Date: 12 July 2001
• Docket Number: No. SC95600., No. SC94058
• Parties: KESHBRO, INC., etc., et al., Petitioners, v. CITY OF MIAMI, etc., et al., Respondents. City of St. Petersburg, Petitioner, v. Joseph H. Kablinger, Respondent.

801 So.2d 864

KESHBRO, INC., etc., et al., Petitioners, v. CITY OF MIAMI, etc., et al., Respondents.

City of St. Petersburg, Petitioner, v. Joseph H. Kablinger, Respondent.

Nos. SC94058, SC95600.

Supreme Court of Florida.

July 12, 2001.

Rehearing Denied December 7, 2001.

David Forestier, North Miami, FL, for Petitioners in No. SC94058.

Jose Fernandez, City of Miami Assistant Attorney, Miami, FL, and Paul B. Feltman of Sweetapple, Broeker & Varkas, Miami, FL, for Respondents in No. SC94058.

Harry Morrison, Jr., General Counsel, Florida League of Cities, Tallahassee, FL, Thomas A. Bustin, Assistant City Attorney, City of St. Petersburg, St. Petersburg, FL, and Robert H. Freilich and Stephen J. Moore of Freilich, Leitner & Carlisle, Kansas City, MO, for the Florida League of Cities, Inc., and the City of St. Petersburg, Amici Curiae in No. SC94058.

Michael S. Davis, City Attorney, and Thomas A. Bustin, Assistant City Attorney, St. Petersburg, FL, and Robert H. Freilich and Stephen J. Moore of Freilich, Leitner & Carlisle, Kansas City, MO, for Petitioner in No. SC95600.

Robert H. Willis, Jr., St. Peterburg, FL, and Alan E. DeSerio of Brigham Moore Gaylord Schuster Merlin & Tobin, LLP, Tampa, FL, for Respondent in No. SC95600.

Herbert W.A. Thiele, County Attorney, Leon County, and Celeste F. Adorno, Assistant County Attorney, Tallahassee, FL, for Florida Association of Counties, Amicus Curiae.

Robert A. Butterworth, Attorney General, and Amelia L. Beisner, Assistant Attorney General, Tallahassee, FL, for The State of Florida, Amicus Curiae in No. SC95600.

Paul B. Feltman of Sweetapple, Broeker & Varkas, Miami, FL, for the City of Miami, Florida and the City of Miami Nuisance Abatement Board, Amici Curiae in No. SC95600.

George L. Dorsett, Assistant County Attorney, Orange County, Orlando, FL, for Orange County and Florida Association of County Attorneys, Amici Curiae in No. SC95600.

SHAW, J.

We have for review City of Miami v. Keshbro, Inc., 717 So.2d 601 (Fla. 3d DCA 1998), which expressly and directly conflicts with the decision in City of St. Petersburg v. Bowen, 675 So.2d 626 (Fla. 2d DCA 1996). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We also have for review the decision in City of St. Petersburg v. Kablinger, 730 So.2d 409 (Fla. 2d DCA 1999), which certified conflict with the decision in City of Miami v. Keshbro, Inc., 717 So.2d 601 (Fla. 3d DCA 1998). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We have consolidated these cases for review.

The question posed by these cases is whether temporary closures ordered by nuisance abatement boards to abate public nuisances as defined by section 893.138(1), Florida Statutes (1995), and the corresponding city code provisions constitute compensable takings.¹ Before addressing that question, we must determine the takings analysis appropriate to these facts.²

City of Miami v. Keshbro

Petitioner, Harish Gihwala, has owned and operated the Stardust Motel, a fiftyseven-unit building located at 6730 Biscayne Boulevard, Miami, Florida, since 1988. On October 16, 1992, the City of Miami Nuisance Abatement Board (NAB) ordered the Stardust closed for one year as a drug- and prostitution-related public nuisance in violation of sections 46-1(a) and (c) of the City of Miami Code and section 893.13(1), Florida Statutes (1991).³ Thereafter, the Stardust reopened in 1993; however, the problems soon resurfaced.

On December 10, 1996, the NAB served Gihwala with a notice of hearing again charging the Stardust as a drug-and prostitution-related public nuisance. The notice cited at least eight arrests involving drug and prostitution activity within the Stardust and its curtilage in the preceding six months. Gihwala then entered into a stipulation with the NAB pleading no contest to a finding that the Stardust constituted a public nuisance and agreeing to a partial closure of the Stardust.⁴ Four months later, on March 4, 1997, following a status report hearing, the NAB ordered the closure of seven additional rooms for six months based on additional incidents of drug-and-prostitution-related nuisance activity.⁵ Finally, on June 30, 1997, the NAB, after hearing additional evidence of nuisance activity including three arrests involving the sale of cocaine, ordered the complete closure of the Stardust for six months. The order provided as follows:

Ordered and Adjudged that the Stardust Motel is in violation of this Board's Order declaring public nuisance and further that the Stardust Motel shall be closed for the duration of this Board's jurisdiction, or until February 12, 1998. Respondents are ordered to remove all guests within five days of the date of this Order. The premises shall be secured within five days of the date of this order.

Gihwala responded by filing suit against the City of Miami and the NAB in Dade County Circuit Court for declaratory and injunctive relief and inverse condemnation, claiming that the NAB's complete closure of the Stardust for six months constituted a taking requiring compensation. The circuit court granted Gihwala's motion for summary judgment on the inverse condemnation claim and the city appealed.

On appeal, the Third District reversed the circuit court's grant of summary judgment under the authority of Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), finding that while the NAB's closure order denied Gihwala all economically beneficial uses of the Stardust, no compensation was required because the uses prohibited by the order, i.e., that of a "brothel and drug house," had no tradition of protection at common law nor did they inhere in the property rights of Gihwala at the time he acquired title. City of Miami v. Keshbro, Inc., 717 So.2d at 604-05. In so ruling, the Third District distinguished the Second District's decision in City of St. Petersburg v. Bowen by noting the extent to which the nuisance activity had become intertwined with the operation of the Stardust: "It is for this reason that we do not certify conflict with City of St. Petersburg v. Bowen; i.e., Bowen does not include any discussion of inextricable intertwining of proscribed uses with other, valid uses." Keshbro at 604 n. 8.

In Bowen, the Second District applied Lucas and found a compensable taking where the St. Petersburg NAB ordered an apartment complex closed for one year as a nuisance based on purported drug use by tenants. The Bowen court found the NAB's one-year closure of the apartment complex "one of the most invasive methods of abating the purported nuisance that was available." 675 So.2d at 629. The Second District further stated: "If the City of St. Petersburg wants to wage a war on drugs in part by means of this type of temporary taking then the City will be required to pay landowners just compensation." Id. at 632.

City of St. Petersburg v. Kablinger

On July 1, 1993, the City of St. Petersburg's NAB issued an order closing the property at issue here, an apartment complex then owned by Residential Property Management Inc., (RPM), based on at least two incidents involving the sale of cocaine within the preceding six months in violation of section 19-67 of the St. Petersburg Code of Ordinances.⁶ In 1995, following corporate dissolution, RPM assigned its interest in the aforementioned property to Kablinger. Thereafter, Kablinger filed a complaint on June 17, 1997, against the City of St. Petersburg for inverse condemnation seeking compensation for the 1993 closure. The trial court granted Kablinger's motion for summary judgment as to the City's liability.

On appeal, the Second District affirmed the trial court's grant of summary judgment finding the case "materially indistinguishable" from its earlier decision in Bowen and certifying conflict with Keshbro. Kablinger, 730 So.2d at 410.

Lucas Analysis

In the instant cases both district courts, although reaching different conclusions regarding compensation, applied the takings analysis established in Lucas.⁷ The Cities of Miami and St. Petersburg, as well as some of the amici curiae,⁸ argue that the closures ordered by the respective NABs are not suitable for treatment under Lucas. Our review of Lucas and the cases proceeding it lead us to the opposite conclusion.

In Lucas, the Supreme Court acknowledged the recognition in its takings jurisprudence of at least two forms of regulatory action which require compensation without the usual case-specific inquiry into the public interest advanced in support of the restraint: (1) where the regulation compels the property owner to suffer a physical invasion, or (2) where the regulation "denies all economically beneficial or productive use of land." Lucas, 505 U.S. at 1015,112 S.Ct. 2886. In the latter case, the State can resist compensation only if the regulation "proscribe[s] use interests [which] were not part of [the property owner's] title to begin with." Id. at 1027, 112 S.Ct. 2886.⁹ Accordingly, a regulation which amounts to a deprivation of all use "must ... do no more than duplicate the result that could have been achieved in the courts-by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." Id. at 1029, 112 S.Ct. 2886. This has been labeled the "nuisance exception."¹⁰

The property owner in Lucas purchased two residential beachfront lots intending to build single-family homes. Thereafter, South Carolina passed legislation effectively barring any residential development on Lucas's land. 505 U.S. at 1007, 112 S.Ct. 2886. Lucas brought suit in state court claiming that the legislation effected a taking requiring compensation. Id. at 1009. The trial court agreed, finding that Lucas's beachfront lots were rendered valueless by the legislation's ban on construction. The Supreme Court accepted the trial court's factual finding that...