DARRIN P. GAYLES, District Judge.
Plaintiff Corine Bradley ("Plaintiff") is the owner of Bradley's Market in the Overtown neighborhood in the City of Miami. Plaintiff has owned Bradley's Market
On April 20, 2017, before appealing in the state court, Plaintiff filed a Complaint in this Court against the City alleging multiple claims, including one under the Fourth Amendment for invasion of privacy and another under the Fifth Amendment's takings clause.
On May 8, 2017, Magistrate Judge Otazo-Reyes held an evidentiary hearing on Plaintiff's Motion. At the hearing, the City represented that it did not seek to monitor the interior of Plaintiff's property or the rear of the property. The City also acknowledged that the Board's prior order was poorly phrased and that the City was no longer seeking to require Plaintiff to prevent customers from loitering and prowling.
On May 30, 2017, Magistrate Judge Otazo-Reyes issued her Report recommending that the Court deny the request for a preliminary injunction finding that Plaintiff failed to demonstrate a likelihood of success on the merits on both her Fourth and Fifth Amendment claims. Plaintiff has timely objected.
Plaintiff asks the Court to enjoin the Board from enforcing its order pending resolution of her claims.
"A preliminary injunction may be granted to a moving party who establishes `(1) substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.'" United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)). "A preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of these prerequisites." GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng'rs, 788 F.3d 1318, 1322 (11th Cir. 2015) (quoting Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001) (per curiam)).
Based on its de novo review of Plaintiff's Motion and the record, the Court agrees with Judge Otazo-Reyes's analysis and findings regarding Plaintiff's Fourth Amendment claim. Plaintiff has no legitimate expectation of privacy for the sidewalk abutting the property. In addition, the City Attorney's representations that the Board did not require Plaintiff to monitor the interior of the property and that the requirement to monitor the rear of the property was no longer in place effectively negates any additional Fourth Amendment concerns. Although Plaintiff expressed concern that the City will "start up again," the City is bound by the representations made in these proceedings and could be subject to sanctions for acting in a manner inconsistent with those representations. Accordingly, the Court finds that Plaintiff fails to establish a likelihood of success on the merits of her Fourth Amendment claim.
"The chief and one of the most valuable characteristics of the bundle of rights commonly called property is the right to sole and exclusive possession-the right to exclude strangers, or for that matter friends, but especially the Government." Love v. Terminal Partners v. U.S., 97 Fed.Cl. 355, 371 (Fed. Cl. 2001) (internal quotations and citations omitted). The Takings Clause of the Fifth Amendment to the U.S. Constitution, incorporated against the States by the Fourteenth Amendment's Due Process Clause, was designed to protect this bundle of rights and provides that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V. It is important to note that the Constitution does not prevent the government from ever taking private property. Rather, it prohibits the government from taking property without just compensation. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-95 (1985).
The Takings Clause, as interpreted by the Supreme Court, is implicated in two distinct scenarios. The first is when the government physically takes or occupies the property and the second is when the government regulates the property in a manner that "deprives the owner of the economic use of the property." Yee v. City of Escondido, Cal., 503 U.S. 519, 522-23 (1992). "A physical taking occurs when `government encroaches upon or occupies private land for its own use.'" Love, 97 Fed.Cl. at 373 (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)). A regulatory taking occurs when "the government prevents the landowner from making a particular use of the property that otherwise would be permissible." Id. (quoting Forest Props., Inc. v. United States, 177 F.3d 1360, 1364 (Fed.Cir. 1999)). Courts are more likely to find a taking when the government has physically occupied the property as opposed to when the government regulates the property in a manner that interferes with the owners use of the property. Loretto v. Telepromter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) ("A `taking' may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.") (citations omitted). Indeed, the Supreme Court has "long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause." Id. at 428.
The Board's requirement here that Plaintiff pay for and permanently affix a camera to her private property is a physical taking under the Fifth Amendment. The Court finds this case indistinguishable from Loretto, where the Supreme Court found that cable installation in an apartment building, authorized by the State of New York, was a physical occupation of private property despite the cable only occupying a small portion of the property. "[P]ermanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner's use of the rest of his land." Loretto, 458 U.S. at 430. Requiring Plaintiff to permanently affix a camera and its attendant lines to her building is no different than requiring landlords in New York to permit a cable company to run cable lines on their property.
The Report found that requiring Plaintiff to install cameras on her property is not a taking because she still has a reasonable use of the property, citing the Florida First District Court of Appeal's decision in Glisson v. Alachua Cty., 558 So.2d 1030, 1035 (Fla. 1st DCA 1990). The Report and the City conflate the analysis for physical and regulatory takings. Glisson involved a land use regulation that limited development of certain private properties. The Florida appellate court held that, for a regulation to be a taking, the property owner must demonstrate that the regulation is unreasonable or arbitrary or that it denies a substantial portion of the beneficial use of the property. Id. at 1035. However, as stated above, this case involves a physical taking and, therefore, the analysis is different. Unlike regulatory takings, which require the Court to analyze the extent to which the regulation limits economically beneficial uses of the property, physical occupations by the government are per se takings. See Loretto, 458 U.S. at 434-35 ("when the character of the governmental action is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.") (internal quotation and citations omitted); Love, 97 Fed.Cl. at 374 ("A permanent physical occupation is a per se physical taking. . . because it destroys, among other rights, a property owner's right to exclude.") (internal citations and quotations omitted); Qwest Corp. v. U.S., 48 Fed.Cl. 672, 688 (Fed.Cl. 2001) ("In other words, a permanent physical occupation of property is a per se taking"). As a result, once the government has permanently and physically occupied private property, the Cout must only determine the amount of compensation due. Loretto, 458 U.S. at 437. By requiring that Plaintiff affix a camera on her property for the City's use, the City has permanently and physically occupied a portion of Plaintiff's property. Accordingly, there is a per se taking.
The Report also found that even if this case involved a taking, Plaintiff's Fifth Amendment Claim was not ripe for review, citing the Eleventh Circuit's decision in Eide v. Sarasota Cty, 908 F.2d 716, 720-21 (11th Cir. 1990). The Court in Eide, relying on the Supreme Court's decision in Williamson, held that a just compensation takings claim is not ripe for review until (1) there has been a final decision and (2) the plaintiff has utilized all state procedures for just compensation. Id. The final decision requirement is assumed in a physical takings action because "`[w]here there has been a physical invasion, the taking occurs at once, and nothing the [governmental actor] can do or say after that point will change that fact.'" Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 91-92 (1st Cir. 2003) (quoting Hall v. City of Santa Barbara, 833 F.2d 1270, 1281 n. 28 (9th Cir.1987) overruled on other grounds by Yee, 503 U.S. at 519).
With respect to the second prong in the ripeness analysis, a plaintiff in a physical takings action is generally required to seek just compensation in state court before bringing a federal claim. "`[P]otential federal court plaintiffs' are required to `pursue any available state court remedies that might lead to just compensation before bringing suit in federal court under section 1983 for claims arising under the Fourteenth and Fifth Amendments for the taking of property without just compensation.'" Hadar v. Broward County, No. 15-cv-61845, 2016 WL 4503343 at * 3 (S.D. Fla. June 16, 2016) (quoting Fields v. Sarasota Manatee Airport Auth, 953 F.2d 1299, 1303 (11th Cir. 1992).
Under Florida law, the procedure for just compensation, where the government has taken private property without formally exercising the power of eminent domain, is an inverse condemnation proceeding. See Pembroke Center, LLC v. State Department of Transportation, 64 So.3d 737, 740 (Fla. 4th DCA 2011). To set forth a claim for inverse condemnation, a property owner must establish either "(1) a continuing physical invasion of the property or (2) a substantial ouster and deprivation of all beneficial use of the property." Bakus v. Broward County, 634 So.2d 641, 642 (Fla 4th DCA 1993) (internal citations omitted). See also Pembroke Center, 64 So. 3d at 740 ("A taking occurs when a property owner suffers a physical appropriation of his property or when a regulation `denies all economically beneficial or productive use of land.'") (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992)). There are two limited exceptions to the requirement that a plaintiff utilize all state remedies before filing a federal takings claim: (1) the state remedies are inadequate or unavailable or (2) the state remedies are futile. See Franco v. District of Columbia, 456 F.Supp.2d 35, 42 (D.C. 2006).
It is uncontested that Plaintiff has not pursued an inverse condemnation proceeding in Florida. Plaintiff contends that inverse condemnation remedies are unavailable to her because she will not be able to establish deprivation of all use of her property.
The Court finds that Plaintiff has failed to pursue available state court procedures for just compensation, and therefore, her Fifth Amendment Claim, as it relates to the required installation of a surveillance camera, is not ripe. As a result, Plaintiff does not yet establish a likelihood of success on the merits on her physical takings claim.
Plaintiff also asserted a Fifth Amendment Takings claim based on the City's prior requirement that she avoid having customers loiter and/or prowl at Bradley's Market. Plaintiff did not object to the Report's finding that this claim is unlikely to succeed on the merits. In any event, this alleged regulatory taking appears to be moot based on MPD's representation at the hearing that officers will no longer be instructed to arrest individuals inside Bradley's Market for loitering. Had the loitering issue not been moot, the Court would have analyzed it as a regulatory taking. This analysis would be more fact intensive and likely would result in a finding that the claim is not ripe for review.
Even if Plaintiff was likely to prevail on her Fifth Amendment claim, a preliminary injunction is not appropriate because Plaintiff cannot establish irreparable harm. "An injury is `irreparable' only if it cannot be undone through monetary remedies." Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1449 (11th Cir. 1991). As stated above, the Fifth Amendment does not prohibit the government from taking property. It prohibits the government from taking property without just compensation. Plaintiff's remedy is just compensation, a monetary remedy to be determined at a later date, based on the extent to which the City has encroached upon her property rights. As a result, Plaintiff cannot establish irreparable harm and the motion for preliminary injunction must be denied.
The City has moved to dismiss Plaintiff's complaint arguing that (1) Plaintiff cannot maintain an action on behalf of Bradley's Market; (2) Plaintiff fails to state a claim under the Fourth or Fifth Amendments; (3) Plaintiff fails to state a claim for injunctive relief; (4) Plaintiff failed to comply with the pre-suit notice conditions of Florida Statute § 768.28; (5) the Court should abstain from hearing this action until the state proceedings have ended; and (6) the Court does not have jurisdiction over an appeal of the Nuisance Abatement Board.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). Although this pleading standard "does not require `detailed factual allegations,'. . . it demands more than unadorned, the defendant-unlawfully-harmed-me accusations." Id. (alteration added) (quoting Twombly, 550 U.S. at 555).
Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this "plausibility standard," a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556). When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
The City contends that the Court should dismiss Plaintiff's complaint because she has brought it on behalf of "Bradley's Market." Florida Statute § 865.09 provides that "a person may not engage in business under a fictitious name unless the person first registers the name with the [Division of Corporations of the Department of State] . . . Fla. Stat. § 865.09 (3). The City argues that Plaintiff never registered her business as Bradley's Market and attaches as an exhibit to its motion a record from the Florida Division of Corporations indicating that Plaintiff registered her business under the fictitious name of Bradley's
In its analysis of the Plaintiff's Motion for Preliminary Injunction, the Court found that the Fourth Amendment Claim was not likely to succeed on the merits because it now appeared moot in light of the City's statements on the record. However, for purposes of the Motion to Dismiss, the Court cannot look beyond the allegations in the Complaint. The Complaint alleges that the Nuisance Abatement Board required her to install security cameras which allow for the Miami Police Department to receive uninterrupted remote-live feed access to the
As detailed above, the Court finds that Plaintiff's Fifth Amendment claim is not ripe. Accordingly, the motion to dismiss Count II must be granted on this ground.
As detailed above, Plaintiff cannot establish irreparable harm for any of her claims. Without irreparable harm, Plaintiff cannot establish a claim for injunctive relief. Accordingly, Defendant's motion to dismiss Plaintiff's claim for injunctive relief (Count IV) is granted.
The City argues that Plaintiff's claims are barred by Florida Statute § 768.28, which requires that a plaintiff provide notice in writing to the state agency or municipality before bringing a claim. Fla. Stat. § 768.28(6). This statute has been interpreted to cover tort actions and other common law claims against the government. Schaeffer v. Sch. Bd. of Broward Cty., Fla., 69 F.Supp.3d 1327, 1330 (S.D. Fla. 2014) ("the notification requirement applies solely to statelaw tort claims"); Bifulco v. Patient Bus. & Fin. Servs., Inc., 997 So.2d 1257, 1258 (Fla. 5th DCA 2009) approved and remanded, 39 So.3d 1255 (Fla. 2010) ("The sole purpose for the enactment of section 768.28 was to waive sovereign immunity for breaches of common law torts."). Plaintiff's remaining claims against the City are for Constitutional violations, brought via § 1983, none of which fall under the purview of the statute.
The City has asserted that the Court does not have jurisdiction and/or should abstain from exercising jurisdiction over Plaintiff's claims under the Rooker-Feldman doctrine and the Younger doctrine. "Both the Rooker-Feldman doctrine and the Younger doctrine are extremely narrow exceptions to the federal courts' `virtually unflagging' duty `to adjudicate claims within their jurisdiction.'" Green v. Jefferson County Commission, 563 F.3d 1243, 1245 (11th Cir. 2009) (quoting New Orleans Pub. Serv. Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989).
The Rooker-Feldman doctrine is "confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Plaintiff is not a "state-court loser." Indeed, the state court has yet to rule on Plaintiff's appeal of the Board's ruling. Therefore, the Rooker-Feldman doctrine does not apply. See Green, 563 F.3d at 1250.
The City also asks the Court to abstain from exercising jurisdiction over Plaintiff's claims in light of the pending state court proceeding. The Younger abstention doctrine provides that federal courts should abstain from exercising jurisdiction over civil and administrative proceedings that are pending in state courts when (1) the state proceedings are ongoing; (2) the state proceedings implicate an important state interest; and (3) the party can pursue their federal claims in the state court proceeding. Younger v. Harris, 401 U.S. 37 (1971). "The Younger doctrine does not require abstention merely because a federal plaintiff, alleging a constitutional violation in federal court, filed a claim under state law, in state court, on the same underlying facts." Wexler v. Lepore, 385 F.3d 1336, 1340 (11th Cir. 2004). The goal of the doctrine is to prevent "federal courts from being the grand overseers of state courts and court-like administration." Id. at 1341. However, the doctrine "is not triggered in a civil context unless the federal injunction requested would create an `undue interference with state proceedings.'" Green, 563 F.3d at 1251 (quoting New Orleans Pub. Serv. Inc., 491 U.S.at 359).
The Court finds that, with respect to Plaintiff's remaining Fourth Amendment claim, Younger abstention is not required. The Court does, however, decline to exercise supplemental jurisdiction over Count V, Plaintiff's appeal of the Board's order, as Plaintiff is already pursing an appeal in the state court. In addition, in light of the potential inverse condemnation proceeding in state court, the Court finds the most efficient course of action for this case is to stay resolution of Plaintiff's constitutional claims pending the Appellate Division of the Eleventh Judicial Circuit's ruling on Plaintiff's Writ of Certorari and Plaintiff's pursuit of inverse condemnation proceedings.
Based on the foregoing, it is
