Munzel v. Hillsborough Cnty.
| Decision Date | 07 March 2022 |
| Docket Number | 8:21-cv-2185-WFJ-AAS |
| Parties | CLYDE W. MUNZEL, as Trustee of the CLYDE W. MUNZEL REVOCABLE TRUST, under agreement dated May 3, 2005, Plaintiff, v. HILLSBOROUGH COUNTY and CARMINE PISANO, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Before the Court is Defendant Hillsborough County's motion to dismiss Counts I, II, III, and V and to strike Count VI of the amended complaint (Dkt. 26), Defendant Officer Carmine Pisano's motion to dismiss with prejudice Count IV of the amended complaint (Dkt. 27), and Plaintiff's memorandum in opposition (Dkt. 31). After careful consideration of the allegations of the amended complaint (Dkt. 23), the submissions of the parties, and the applicable law, the Court concludes that the amended complaint as to the County should be dismissed with leave to amend consistent with this order. Count VI should not be stricken. The sole count against Officer Pisano should be dismissed with prejudice on the basis of qualified immunity.
Accepting all factual, not conclusory, allegations of the amended complaint as true and construing them in the light most favorable to the plaintiff, see Pielage v McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) the following events occurred in connection with Hurricane Irma in September 2017.
Plaintiff owns a vacant gas station and convenience store in Ruskin Florida. Dkt. 23 ¶¶ 9-10. Plaintiff alleges it “sits near the busy intersection of U.S. 41 and 4th Ave. SW in southern Hillsborough County.” Dkt. 23 ¶ 10. The steel canopy stood twenty feet high and “was rectangular in shape, measuring approximately sixty feet long by forty feet wide.” Dkt. 23 ¶ 14. Two steel columns anchored the canopy, bolted five feet underground in concrete footings. Id.
Plaintiff had made substantial improvements on the property and was finalizing lease negotiations with a potential tenant in September 2017. Dkt. 23 ¶ 11-13, 15. On September 11, 2017, Hurricane Irma caused the steel canopy over the gas pumps to topple and rest on one of its four corners. Dkt. 23 ¶¶ 14, 20-21. The storm left the canopy “on Plaintiff's property with no part touching the sidewalk or street.” Dkt. 23 ¶24. The following photographs are a part of the record. Dkt. 18-1; Dkt. 22 at 3 n.1 & Appendix 1.
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The County began the process of seeking an emergency abatement on September 14, 2017. Dkt. 23 ¶ 39-40. The immediate abatement process applies to an “imminent health threat” as defined in the Hillsborough County Code of Ordinances, which codifies Ordinance 12-7 at section 8-180. Dkt. 23 ¶¶ 29-30, 41. Plaintiff acknowledges that Dkt. 23 ¶ 33. Should an immediate abatement action occur, the Dkt. 23 ¶ 34. The notice should set a hearing in front of the Code Enforcement Department or a special master to challenge the Department's determination that an imminent health threat exists. Dkt. 23 ¶ 34 (citing Code Sec. 8-180(d)). Plaintiff alleges “the County never served a notice of abatement and costs on Plaintiff advising him of his right to request a hearing to challenge the Code Enforcement Department's determination of the existence of an imminent health threat.” Dkt. 23 ¶ 69.
Plaintiff pleads that the fallen canopy was not a public nuisance-an imminent health threat warranting immediate, emergency abatement without notice. Plaintiff alleges that a pattern or practice of pursuing immediate abatement actions without prior notice is “evidenced by the fact that, in the County's 2019 fiscal year, it conducted 81 emergency abatement actions against properties that the County asserts had conditions constituting imminent health threats.” Dkt. 23 ¶ 37.
Plaintiff alleges the County Enforcement Code requires that either the director of the Code Enforcement Department or authorized designee determine whether the circumstances represent an imminent risk of injury. Dkt. 23 ¶¶ 30-31 (citing Code Sec. 8-172). Plaintiff further alleges that Code Enforcement Officer Carmine Pisano was neither the director nor an authorized designee. Dkt. 23 ¶¶ 42-43. Nevertheless, Officer Pisano authorized an immediate abatement (demolition and removal of canopy) on Plaintiff's property without prior notice. Dkt. 23 ¶¶ 40-41, 44-45, 52. In the alternative, Plaintiff alleges that if Officer Pisano was the director or authorized designee, the officer's actions represented either the execution of a codified policy or custom of the County or established a policy or custom of the County to declare imminent injury without an opportunity for Plaintiff to seek administrative review. Dkt. 23 ¶¶ 46-47.
Despite Officer Pisano's decision, Plaintiff alleges that Area Code Enforcement Supervisor David Cansler had visited the property earlier and determined that the canopy did not present a public nuisance or imminent health threat. Dkt. 23 ¶¶ 48-51. Nevertheless, Area Code Enforcement Supervisor James Karr approved the emergency abatement on September 14 and arrived at the property to implement the emergency abatement. Dkt. 23 ¶¶ 40, 53, 57. According to Plaintiff, Supervisor Karr informed Plaintiff that Officer Pisano's “boss” had approved the immediate abatement. Dkt. 23 ¶ 55.
That same day, September 14, the County's Rapid Response Team demolished the canopy and left behind the debris-“a heaping pile of twisted steel scrap, ” which Plaintiff alleges was caused by “negligent demolition work.” Dkt. 23 ¶¶ 57-60. On September 19, 2017, the County advised Plaintiff of a hearing on an emergency abatement to be held the next day. Dkt. 23 ¶¶ 63-64. The hearing was held September 20, 2017, which Plaintiff and his counsel attended. Dkt. 23 ¶ 67. The special master found the debris “created and left” by the County constituted a public nuisance and ordered Plaintiff to remove it within 48 hours. Dkt. 23 ¶ 67. Plaintiff complied. Dkt. 23 ¶ 68. Based on these facts, Plaintiff alleges the County never afforded him “any opportunity to be heard on the Code Enforcement Department's determination that an imminent health threat existed on the property on September 14, 2017.” Dkt. 23 ¶ 71.
The amended complaint alleges three counts against the County based on federal law: (1) in Count I, a categorical (as opposed to regulatory) taking violative of 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments for which Plaintiff demands just compensation for damages to the steel canopy, gas pumps, and convenience store; (2) in Count II, a per se violation of procedural due process based on the ordinance's failure to adequately provide pre-deprivation process; and (3) in Count III, an “as applied” violation of procedural due process based on a constitutionally inadequate process for pre- and post-deprivation as to Plaintiff's property. Two counts seek damages against the County under state law-inverse condemnation (Count V) and negligence (Count VI). The remaining count (Count IV) seeks damages from Officer Pisano for a violation of federal procedural due process under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments based on the absence of pre-deprivation notice and the clearly established law that no reasonable person would judge that the tipped canopy was an imminent risk of causing injury.
The relevant allegations will be addressed as to each count below. The overarching issue, as urged by Plaintiff, is whether Plaintiff has alleged a plausible claim for failure to give pre-deprivation notice to remove a fallen steel canopy on his vacant gas station and convenience store. Stated differently, are there sufficient facts pled to support the allegation that “no reasonable person” would find the tipped canopy an imminent risk of causing injury? Plaintiff also contends that at the post-deprivation hearing, only the heap of steel created by the County was determined to be a nuisance-whether the toppled canopy was a nuisance in its state on September 14 was never addressed at the hearing. Plaintiff also cites to the number of emergency abatements conducted by the County in the fiscal year 2019 to support a policy or practice claim.
Counts I and V (Takings and Inverse Condemnation against County)
As acknowledged by the County, the Plaintiff's focus or theory of the case now is different in the amended complaint-he now asserts that a categorical, not a regulatory, taking occurred. Dkt. 26 at 4. He alleged a regulatory taking in the original complaint.
A categorical taking or “physical taking” requires a “direct government appropriation or physical invasion of private property.” Lingle v. Chevron U.S.A Inc., 544 U.S. 528, 537 (2005); Serpentfoot v. Rome City Comm'n, 322 Fed.Appx. 801, 805 (11th Cir. 2009). The Supreme Court cases “have stressed the ‘longstanding distinction' between government acquisition of property and regulations.” Horne v. Dep't of Agriculture, 576 U.S. 350, 361 (2015) ).
By abandoning a regulatory takings claim, Plaintiff is no longer required to establish he suffered the loss of all economically valuable uses of his property. Tahoe-Sierra, 535 U.S. at 322 (...
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