Seminole County v. Pinter Enterprises, Inc.
| Citation | 184 F.Supp.2d 1203 |
| Decision Date | 26 September 2000 |
| Docket Number | No. 6:00CV436ORL-28A.,6:00CV436ORL-28A. |
| Parties | SEMINOLE COUNTY, City of Casselberry, Florida, Plaintiffs, v. PINTER ENTERPRISES, INC., Michael E. Pinter, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Robert Alexander McMillan, Seminole County Attorney's office, Sanford, FL, Gregory Thomas Stewart, Nabors, Giblin & Nickerson, P.A., Tallahassee, FL, for Seminole County.
Donna Lynne Surratt-McIntosh, Stenstrom, McIntosh, Colbert, Whigham & Simmons, P.A., Sanford, FL, F. Scott Pendley, Dean, Ringers, Morgan and Lawton, P.A., Orlando, FL, for City of Casselberry, Fla.
Jay W. Small, Wilson, Leavitt & Small, P.A., Orlando, FL, Robert H. Freilich, Freilich, Leitner & Carlisle, Kansas City, MO, for Pinter Enterprises, Inc., Michael E. Pinter, Jr., Mary C. Pinter.
This cause came on for consideration of the Report and Recommendation of the Magistrate Judge (Doc. 36) which recommended that Defendant's Amended Motion to Remand (Doc. 21) be granted. The Court has considered Plaintiff's Objections (Doc. 39) to the Report and Recommendation and Defendant's Response thereto (Doc.40). Upon consideration of the above, the Court confirms that part of the Report and Recommendation which recommends that Defendant's Amended Motion to Remand be granted, but declines to adopt that portion of the Report and Recommendation which awards costs under 28 U.S.C. Sec. 1447(c). It is, therefore
ORDERED AND ADJUDGED that Defendant's Amended Motion to Remand is GRANTED. The Clerk is directed to remand this case to state court and, thereafter, close the file.
This cause came on for consideration without oral argument on the following motion filed herein:
THEREON it is RESPECTFULLY RECOMMENDED that the motion be GRANTED.
Pinter Enterprises, Inc., Michael E. Pinter, Jr., Mary C. Pinter and Michael E. Pinter, Jr., as joint trustees (collectively "the Pinters"), the defendants, own an adult entertainment establishment known as Club Juana. In June, 1999, the plaintiffs, Seminole County and the City of Casselberry (collectively "the Local Governments") passed several public decency ordinances that negatively affected Club Juana. (Doc. No. 3, Exhibits B-D). In November, 1999, in reaction to the ordinances, the Pinters filed a notice of intent to file a claim under Chapter 70 of the Florida Statutes, known as the Bert J. Harris, Jr., Private Property Rights Protection Act ("Bert Harris Act"). (Doc. No. 3, Exhibits E & F).
On January 26, 2000, in the Eighteenth Circuit Court of the State of Florida, the Local Governments filed a complaint against the Pinters, seeking a declaratory judgment under Chapter 86 of the Florida Statutes. (Doc. No. 3). The complaint sought a ruling as to whether the Bert Harris Act, applied to the Local Governments' ordinances.
The Pinters counterclaimed for violations under the Bert Harris Act, inverse condemnation under the Florida Constitution and the United States Constitution, and violations of 42 U.S.C. § 1983. including: violations of procedural due process under the United States Constitution, violations of substantive due process under the Florida Constitution and the United States Constitution, and violations of equal protection under the United States Constitution. (Doc. No. 4).
On April 4, 2000, the Local Governments, the plaintiffs in the state court case, filed a Joint notice of removal ("Removal Notice") in this Court with an accompanying memorandum in support thereof. (Doc. Nos. 1 & 2). Simultaneously with the filing of the Removal Notice, the Local Governments also filed a motion to dismiss the Pinters' counterclaims with an accompanying memorandum of law. (Doc. Nos. 6 & 7). The Local Governments supplemented the motion to dismiss on June 21, 2000. (Doc. No. 31). On April 21, 2000, the Pinters filed an amended motion to remand (Doc. No. 21). On May 17, 2000, the Local Governments filed a memorandum in opposition to the Pinters' amended motion to remand. (Doc. No. 27). Finally, on June 27, 2000, the Pinters responded by filing a reply memorandum to the Local Governments' opposition memorandum, addressing the issue of realignment. (Doc. No. 34). The foregoing motions and memoranda have been referred to me for issuance of a report and recommendation.
The Pinters' notice of intent to file a claim under the Bert Harris Act alleges that the ordinances impose an inordinate burden on the Pinters' vested rights in real property, which prevents the Pinters from attaining their reasonable investment backed expectations. (Doc. No. 3, Exhibits E & F, at 1). The Pinters allege that the ordinances decreased the market value, income stream, and net present value of the property, and that they are entitled to damages for the loss of their reasonable investment backed expectations in the amount of $3,387,640. (Id. at 8). The Pinters allocate the alleged damages as follows: $344,000 for the difference in market value of the real property before and after the adoption of the ordinances; $271,700 for the loss in value of movable assets after the adoption of the ordinances; and $2,871,940 for the net present value of the property based on a five-year weighted average of the net operating income. (Id. at 11)
The Local Governments' complaint alleges that a legitimate question exists regarding whether the Bert Harris Act applies to the ordinances in question. (Doc. No. 3, at 6-8). The complaint asks the state court to rule that the Bert Harris Act does not apply to the ordinances and toll the 180-day-period under the Bert Harris Act, in which the Local Governments must respond to the Pinters' notice of intent to file a claim, until a final determination is made regarding the applicability of the Bert Harris Act. (Id. at 8)
The Pinters filed counterclaims to the complaint because they feared losing them based upon the compulsory counterclaim rule. (Doc. No. 34, at 9). The counterclaims arise out of the same operative facts and, as stated in section I, supra, allege claims under the Bert Harris Act, inverse condemnation claims under the Florida and United States Constitutions, and various Constitutional claims under 42 U.S.C. § 1983. (Doc. No. 4).
The Removal Notice does not request that this Court realign the Local Governments as the defendants for purposes of removal. (Doc. No. 1). Instead, the Removal Notice refers to the Local Governments as the defendants and relies on the Pinters' federal counterclaims as the basis for removal. (Id. at ¶ 12). The Pinters' amended motion to remand asserts that the Local Governments have improperly removed this case, and requests that the Court award the Pinters their attorneys' fees and expenses incurred contesting the case's removal. (Doc. No. 21, at ¶ 5). The Local Governments first addressed the issue of realignment in their memorandum opposing the Pinters' amended motion to remand. (Doc. No. 27). The Local Governments' motion to dismiss primarily asserts that the Pinters' federal counterclaims should be dismissed because they fail to state a claim and are not ripe. (Doc. No. 6). The Local Governments' supplemental motion to dismiss asserts that the Pinters' Bert Harris Act counterclaim should be dismissed based on a procedural deficiency. (Doc. No. 31).
A. The Bert Harris Act
The Florida Legislature adopted the Bert Harris Act with the intention of creating a separate and distinct cause of action from the law of takings. See § 70.001(1), Fla. Stat. (1999). The Bert Harris Act provides private property owners with an avenue for redress against state and political entities if the property owner feels that a law, regulation, or ordinance of an entity inordinately burdens, restricts, or limits the citizen's private property rights without amounting to a taking under the Florida Constitution or the United States Constitution. See id. The Bert Harris Act requires a citizen seeking compensation under the Bert Harris Act to, not less than 180 days prior to filing a complaint, present the claim in writing to the head of the governmental entity. See § 70.001(4)(a), Fla. Stat. (1999). During the 180-day-notice period, the governmental entity must make a written settlement offer to the property owner. See § 70.001(4)(c), Fla. Stat. (1999). The Bert Harris Act identifies eleven possible offers that a governmental entity can make, including making no change in the governmental entity's action. See id.1
During the 180-day-notice period, unless the property owner accepts a settlement offer, the governmental entity is required to issue a written ripeness decision that identifies the allowable uses for the property. See § 70.001(5)(a), Fla. Stat. (1999). If the governmental entity fails to issue a ripeness opinion during the 180day-notice period, then that failure ripens the prior action of the governmental entity, and operates as a ripeness decision that has been rejected by the property owner. The ripeness decision, as a matter of law, is the last prerequisite to judicial review. See id. If the property owner rejects the settlement offer and the ripeness decision of the governmental entity, then the property owner may file a claim for compensation in the circuit court. See § 70.001(5)(b), Fla. Stat. (1999). If the circuit court determines that the action of the governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner is entitled to relief. See § 70.001(2), Fla. Stat. (1999). Relief under the Bert Harris Act may include compensation for the actual diminishment of the fair market value of the real property caused by the governmental entity's action. See id.
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