Munzel v. Hillsborough Cnty.
| Decision Date | 23 November 2021 |
| Docket Number | Case No: 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, a political subdivision of the State of Florida; Carmine Pisano, an individual; and John Doe, an individual, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Christopher L. DeCort, James Jeffrey Burns, Johnson, Cassidy, Newlon & DeCort, P.A., Tampa, FL, for Plaintiff.
Stephen M. Todd, Hillsborough County Attorney's Office, Tampa, FL, for Defendants Hillsborough County, Carmine Pisano.
This matter comes before the Court on two motions to dismiss a six-count complaint, Dkt. 1, brought by Plaintiff Clyde W. Munzel. Defendant Hillsborough County ("the County") moves to dismiss Counts I, II, and V brought against it. Dkt. 17. Defendant Code Enforcement Officer Carmine Pisano moves to dismiss Count III brought against him. Dkt. 18. Plaintiff filed a response to the motions. Dkt. 21. After careful consideration of the filings, the Court grants both motions. For reasons stated below, the Court also dismisses Count IV and declines to exercise supplemental jurisdiction over Count VI.
Plaintiff owns real property in Hillsborough County, Florida, upon which a vacant gas station and convenience store sit. Dkt. 1 at 2-3. Plaintiff states that, at the time of the underlying events, he was in the final stages of lease negotiations with a potential tenant who planned to open and operate the gas station and convenience store, prompting Plaintiff to make substantial improvements to the property. Id. at 3. These improvements included new gas dispensers, underground gas tanks, and related hardware and software. Id.
In the early morning hours of September 11, 2017, Hurricane Irma hit the Tampa Bay area as a Category 1 hurricane. Id. at 4. Hurricane Irma caused many downed powerlines and trees, resulting in the County receiving over $4.9 million from the Federal Emergency Management Agency ("FEMA") to assist with debris removal. Id. at 5. Among the properties impacted by Hurricane Irma was that of Plaintiff. Id. The hurricane knocked over the steel canopy structure that served as a roof over Plaintiff's gas pumps. Id.
Plaintiff states that the fallen canopy was only touching the ground at one corner and leaning away from the street. Id. Plaintiff also emphasizes that, though the canopy fell on top of one gas pump, all of the underground gas tanks were empty because the gas station was not in operation. Id. at 5-6. Photographs taken of the canopy show that the structure had collapsed in close proximity to the public sidewalk and street.1 Dkt. 18-1 at 15, 20. One of these photographs, Dkt. 18-1 at 15, is attached as an Appendix to this order. The photographs show that the canopy's support column nearest the street had fallen, leaving jagged metal exposed at ground-level and facing the sidewalk. Id. at 2, 15. Nothing is shown to be physically separating the collapsed canopy from the public sidewalk. Id. at 15. Plaintiff states that, though he was "not overly concerned" by the fallen canopy, he promptly began speaking to contractors about fixing it. Dkt. 1 at 5-6.
On September 14, 2017, three days after Plaintiff's canopy structure fell, the Code Enforcement Manager of Hillsborough County Code Enforcement ("Code Enforcement") sent an email titled "Emergency Abatement Request" to the Code Enforcement Executive Director, Rapid Response Division Director, and Defendant Code Enforcement Officer Pisano. Id. at 5-6. Officer Pisano forwarded the email to Code Enforcement Area Supervisor James Karr, writing that he approved the emergency abatement of the collapsed canopy and expressing his intent to refer the emergency abatement to Code Enforcement's Rapid Response division. Id. at 7.
According to Plaintiff, Supervisor David Cansler was the area supervisor assigned to the region encompassing Plaintiff's property. Id. at 8. Plaintiff contends that Supervisor Cansler visited the property to assess the fallen canopy and "determined [it] did not present a public nuisance or imminent health threat" under the Hillsborough County Code of Ordinances ("the Code"). Id. However, Plaintiff states that Supervisor Karr, who oversaw a different area of the county, nevertheless arrived at the property to carry out the immediate abatement of the fallen canopy. Id. He alleges that Supervisor Karr told Plaintiff's representatives that the Rapid Response team was on its way to remove the canopy, but that Plaintiff's crew could handle the removal of the canopy if Plaintiff's crew arrived before the Rapid Response team. Id. at 8-9. Plaintiff contends that his crew arrived before the Rapid Response team yet was still prohibited from removing the canopy themselves. Id. at 9.
Plaintiff states that the Rapid Response team began demolishing the fallen canopy despite having "no experience in demolition." Id. Plaintiff asserts that, in attempting to pick up the canopy with machinery, the Rapid Response team dropped the canopy on Plaintiff's gas pumps and convenience store roof. Id. According to Plaintiff, the County's demolition resulted in "a heaping pile of twisted scrap metal," inoperable gas pumps, and a damaged convenience store roof. Id. at 10.
The County, however, contends that Plaintiff's collapsed canopy was a public nuisance that posed a risk of injury to the public. Dkt. 17 at 4. Likewise, Officer Pisano asserts that the canopy was in a "precarious position" and could have hurt someone had it not been quickly addressed. Dkt. 18 at 5. The County and Officer Pisano state that Code Enforcement's emergency action of removing the collapsed canopy was both necessary and reasonable to prevent harm to the public. Dkt. 17 at 5; Dkt. 18 at 5.
As a result of the above events, Plaintiff brings this six-count lawsuit against the County, Officer Pisano, and "John Doe," whom Plaintiff claims is "the boss of Supervisor Cansler, to the extent that individual is someone other than Officer Pisano." Dkt. 1 at 1, 16. In Count I, Plaintiff brings a 42 U.S.C. § 1983 claim against the County for violating the Takings Clause of the Fifth Amendment. Id. at 10. Count II alleges a second § 1983 claim against the County for violating Plaintiff's procedural due process rights. Id. at 11. Similarly, Count III is a § 1983 claim against Officer Pisano for violating Plaintiff's procedural due process rights. Id. at 13. Count IV asserts the same claim brought in Count III, but against John Doe. Id. at 15. In Count V, Plaintiff brings an inverse condemnation claim against the County under the Florida Constitution. Id. at 18. Finally, Count VI asserts a negligence claim against the County. Id. at 19.
The County now moves to dismiss Counts I, II, and V for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. 17. Citing qualified immunity, Officer Pisano moves to dismiss Count III. Dkt. 18.
To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is "plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Id. In considering a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations of the complaint as true and construe them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008). The Court should limit its "consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed." La Grasta v. First Union Sec., Inc. , 358 F.3d 840, 845 (11th Cir. 2004).
The County moves to dismiss Counts I, II, and V for failure to state claims. Dkt. 17. The Court addresses each of these counts in turn.
The County argues that the Count I takings claim brought by Plaintiff under § 1983 should be dismissed for two reasons. First, the County contends that Plaintiff has failed to identify a custom or policy of the County that would trigger municipal liability under § 1983. Dkt. 17 at 3-4. Second, the County states that Plaintiff has failed to plead a taking, as the collapsed canopy amounted to a public nuisance that was removed for public safety. Id. at 4. Plaintiff responds that a claimant is not required to identify a custom or policy when bringing a takings claim against a municipality. Dkt. 21 at 4. Plaintiff also asserts that his fallen canopy was not a nuisance and that he sufficiently pled a regulatory taking. Id. at 6-8.
Pursuant to the Takings Clause of the Fifth Amendment, no "private property shall be taken for public use, without just compensation." U.S. Const. amend. V. Takings may be categorical or regulatory. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency , 535 U.S. 302, 322-23, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). While categorical takings occur when the government physically takes possession of a person's property for a public purpose, a regulatory taking occurs when the government prohibits certain uses of a person's land. Id. Regulatory takings include when the government (1) authorizes a permanent physical invasion of a person's land or (2) causes the loss of all economically beneficial use of a person's land. Lucas v. S.C. Coastal Council , 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Here, Plaintiff asserts that he suffered a regulatory taking because he experienced both a permanent physical invasion of his property and a loss of all economically beneficial use of the same. Dkt. 21 at 6-7.
However, as the Supreme Court has recognized, "the Takings Clause does not require compensation when an owner is barred from putting land to a use that is...
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