Noles v. Guntersville, Alabama, The City of

Filing 12

MEMORANDUM OPINION. Signed by Judge Robert B Propst on 1/23/2013. (AVC)

FILED
2013 Jan-23 AM 10:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

VESTA NOLES
Plaintiff,
v.

CV 4:12-3840-RBP

CITY OF GUNTERSVILLE,
ALABAMA
Defendant.
MEMORANDUM OPINION
This cause comes on to be heard on the Motion to Dismiss of City of Guntersville filed
on November 14, 2012. The facts will be considered in favor of the plaintiff as addressed in his
complaint filed in the Circuit Court of Marshall County, Alabama, or as may be undisputed.
Facts
The Guntersville Farmer’s Market (Market) is operated by the defendant City of
Guntersville (City) and is located on land owned by the City. The plaintiff, Vesta Noles, rented a
stall as a lessee/seller at the Market. The relationship between the City and any lessee/sellers at
the Market is governed by Guntersville Municipal Ordinance 825 which states in part:
The City of Guntersville shall have supervision and control of the Farmer’s Market,
together with the streets and alleys adjoining the same. No person shall transact
business, as seller or lessee, at or upon the grounds of the market without first paying
for the privilege at the rate hereinafter set forth and obtaining a written lease
authorizing him/her to do so.
Ala. Code of Ordinances, Chapter 6, Art. III, § 6-56(1). The City has promulgated rules within
Ordinance 825, including:
Upon violations of any of these regulations by any lessee, his agents, servant, or

employees, such violation continuing for one hour after notice by the City of
Guntersville to remedy same, all possessory rights and interest of the lessee are
automatically terminated and the lessee together with his goods, chattels, agents,
servants, and employees may be expelled and removed from the premises by the City
of Guntersville immediately. The City of Guntersville may expel any person for such
a period of time as it determines to be just but not to exceed one (1) year, except any
person who has been previously expelled from the market may be permanently
expelled from the farmer’s market or expelled for a time exceeding one (1) year.
(Emphasis added).
Ala. Code of Ordinances, Chapter 6, Art. III, § 6-58(2).
Noles alleges that on July 3, 2012, employees of the City approached him at the Market
and accused him of “violating the City’s rules and/or regulations governing ‘lessee’ and/or
‘sellers’ at the Farmer’s Market.” (Doc. 1, Ex. A: Complaint, ¶ 11). Noles alleges that he was
then forcibly removed from the Market by uniformed City police officers “[w]ith no advance
notice and no opportunity to be heard regarding the alleged ordinance violations.” Id. Noles
returned, though not present as a lessee/seller, to the Market on July 5, 2012. Noles alleges he
was again removed from the premises forcibly without advance notice or opportunity to be heard
regarding the alleged violations. Noles returned for a final time on July 7, 2012, when he was
arrested and charged with criminal trespass.
Noles filed the current action in the Circuit Court of Marshall County, Alabama, on
September 21, 2012, alleging deprivation of due process under the Fifth and Fourteenth
Amendments of the United States Constitution and Article I, § 13 of the Alabama Constitution.
Noles also alleges inverse condemnation claims under both the Fifth Amendment of the United
States Constitution and § 235 of the Alabama Constitution. The defendant timely removed the
action to this court and filed a Motion to Dismiss for failure to state a claim on November 14,
2012.

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Arguments
1. Does the plaintiff have a protectable property interest?
The City first argues that the plaintiff’s due process and inverse condemnation claims fail
because Noles does not have a protectable property interest in his permit (lease) to sell produce
from a stall on public property. The City cites Marine One, Inc. v. Manatee County, 877 F.2d 892
(11th Cir. 1989) (Petition for Rehearing and suggestion for Rehearing In Banc Denied 898 F.2d
1490 (11th Cir. 1990)) as its main support for this argument. The case involved two Florida
landowners suing Manatee County for rescinding marine construction permits they had
previously been issued. These permits would have allowed the landowners to build a dock over
submerged public lands. The Eleventh Circuit held that the landowners did not have a protectable
property interest in the issuance of the permits to construct their docks on public lands. Marine
One, 898 F. 2d at 1492-1493. The court stated:
[R]evocation of permits to perform activities on public land are not treated as takings
of property. Both federal and other state cases stand for the proposition that permits
to perform activities on public land - whether the activity be building, grazing,
prospecting, mining, traversing - are mere licenses whose revocation cannot rise to
the level of a Fifth Amendment taking.
Id. The City contends that Marine One is dispositive of the current issue. It argues that the
Market is operated on public lands and Noles, like the Florida landowners, has no protectable
property interest in a permit (lease) to maintain a stall or sell produce at the Market.
Plaintiff Noles, however, argues that Marine One is inapplicable to the case at hand since
Marine One was based on Florida law. Noles cites the text of Marine One itself as proof that
federal courts look to the state law to determine and define a plaintiff’s property interest. Marine
One I, 877 F. 2d 892, 894 (11th Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 709 (1976); Bd.

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Of Regents v. Roth, 408 U.S. 564, 577 (1972)); Marine One II, 898 F. 2d at 1492. Additionally,
the Eleventh Circuit narrowed the Marine One purported holding in Reserve, Ltd. v. Longboat
Key, saying that “this court held that Florida law does not create a property right in a permit to
build on public land.” 17 F. 3d 1374, 1379-1380 (11th Cir. 1994) (Emphasis added).
Noles instead cites Tucker v. Jefferson Cnty. Truck Growers’ Ass’n, 487 So. 2d 240 (Ala.
1986) as the relevant Alabama law creating a property interest for his case. In Tucker the
plaintiff, a seller of produce at a market operated by the defendant association, had his permit to
sell revoked by the defendant. The plaintiff’s state court action alleged he was denied a due
process hearing regarding the revocation of his property rights in his license to sell produce at the
market. The Alabama Supreme Court found for the defendant, holding that because the
association was a voluntary association, and not a governmental entity, it did not have to
guarantee due process rights. Id. at 242. Noles points out that the court in Tucker quotes the trial
court’s language that “[i]f the Defendant were a governmental agency, it would be required to
afford the Plaintiff due process before expelling him or refusing to allow him to sell produce on
the market.” Id at 241. The City responds to this contention with the argument that plaintiff
Noles is attempting to create law from dicta (or simply a quote) in the Tucker opinion. Tucker
was focused on voluntary associations and private land and did not decide the law for
governmental entities and public land.
The Eleventh Circuit made clear in the Marine One opinion, as well as following
opinions clarifying its holding, that it was depending on Florida state law to inform its decision
of whether a property right existed. Tucker, however, does not provide the Alabama law for this
case. The court in Tucker stated:

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We are compelled to point out that we do not necessarily embrace the trial court’s
reliance upon Wells v. Mobile County Bd. of Realtors, 387 So. 2d 140 (Ala. 1980),
for its finding that the Association is merely required to woodenly follow the
procedures mandated by the Association’s by-laws, rules, or regulation. However,
having decided this case on the principles set out above, it is unnecessary to address
the range of circumstances in which due process would apply.
Tucker, 487 So. 2d at 243 (Emphasis added).
2. Does the plaintiff have a protectable liberty interest?
The City also argues that the plaintiff’s claim of a violation of a “liberty interest in his
leasehold possession of a vendor’s booth” (Complaint, ¶ 17) is due to fail. The Eleventh Circuit
has held that a claimant alleging a violation of liberty interest in pursuit of business matter “must
present evidence suggesting that a governmental act effectively banned him or her from a
profession.” Liu v. Bd. of Trustees of Univ. of Ala., 330 Fed. Appx. 775, 780 (11th Cir. 2009)
(emphasis added). The City relies upon Liu, stating that because Noles has not alleged that the
City prohibited him from selling produce anywhere outside of the Market, a claim for deprivation
of a liberty interest fails. The plaintiff does not respond to this argument.
3. If the plaintiff does have a property interest, are there adequate post-deprivation
remedies available to defeat a due process claim?
The City argues that, even if Noles has a protectable property or liberty interest, he has
adequate post-deprivation remedies available to him in state court, thus negating any procedural
due process claim here. The Due Process Clause of the Fourteenth Amendment is not violated by
negligent or intentional actions of state entities if the state makes a meaningful post-deprivation
remedy available. Parratt v. Taylor, 451 U.S. 527 (1981); Hudson v. Palmer, 486 U.S. 517
(1983). “If adequate state remedies were available but the plaintiff failed to take advantage of
them, the plaintiff cannot rely on that failure to claim that the state deprived him of procedural

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due process.” Cotton v. Jackson, 216 F. 3d 1328, 1330-1331 (11th Cir. 2000). To be an adequate
remedy, “the state procedure need not provide all the relief available under section 1983.” Id. at
1331. The City argues that a declaratory judgment from Alabama state court of wrongful eviction
from the Market would be a sufficient remedy for Noles. The City also contends that the
Alabama Supreme Court applies the same analysis to bar state constitutional due process claims;
if adequate post-deprivation remedies bar a federal due process claim, it bars the state claim
under the same circumstances.
Plaintiff Noles cites Wolff v. McDonnell to argue “that some kind of hearing is required at
some time before a person is finally deprived of his property interests.” 418 U.S. 539, 557-58
(1974) (emphasis added). Even if there is a meaningful post-deprivation remedy, Nole contends
that “[i]n situtations where the State feasibly can provide a predeprivation hearing before taking
property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to
compensate for the taking.” Zinermon v. Burch, 494 U.S. 113, 131-132 (1990) (citing Cleveland
Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)). However, the defendant is correct in
pointing out that the Supreme Court case law to which Noles refers has been taken into account
by the Eleventh Circuit in a line of cases beginning with McKinney v. Pate, 20 F. 3d 1550 (11th
Cir. 1994) (en banc). The Eleventh Circuit has held that “the state must have the opportunity to
‘remedy the procedural failings of its subdivisions and agencies in the appropriate fora-agencies,
review boards, and state courts’ before being subjected to a claim alleging a procedural due
process violation.” Cotton, 216 F. 3d at 1331 (quoting McKinney, 20 F.3d at 1560). If Noles has
a valid property interest, the procedural due process claim is still arguably invalid since there are
post-deprivation remedies available to him in state court.

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4. Does the plaintiff have a valid Alabama § 235 inverse condemnation claim?
The text of § 235 provides in pertinent part:
Municipal and other corporations and individuals invested with the privilege of
taking property for public use shall make just compensation, to be ascertained as may
be provided by law, for the property taken, injured, or destroyed by the construction
or enlargement of its works, highways, or improvements, which compensation shall
be paid before taking, injury, or destruction.
Ala. Const. 1901, Art. XII, § 235 (Emphasis added). The City cites Alabama cases stating the
necessary elements of 1) property being “taken, injured, or destroyed” and 2) relation to the
governmental entity’s “construction or enlargement of its works, highways, or improvements.”
See Thompson v. City of Mobile, 199 So. 862, 865 (Ala. 1941); City of Birmingham v. Graves, 76
So. 395, 395 (Ala. 1917); Mahan v. Holifield, 361 So. 2d 1076, 1079 (Ala. 1978); City of Mobile
v. Lester, 804 So. 2d 220, 230 (Ala. Civ. App. 2001).
Plaintiff Noles admits there is no ‘construction or enlargement’ involved in this issue but
contends that this court is not bound to a literal construction of the elements. Recent Alabama
case law has suggested that the injury or taking in a § 235 claim “have a tangible physical effect
on the property . . . [and] must also be of a physical nature.” Hous. Auth. of Birmingham Dist. v.
Logan Properties, Inc., 2012 WL 6062568 at *6 (Ala. Dec. 7, 2012). However, this recent
decision still does not abrogate or change the requirement for construction or enlargement.
Additionally, Noles is claiming a property interest/injury to his license to sell produce; there is no
physical property on which ‘a tangible physical effect’ can even occur. See Jefferson County v.
Southern Natural Gas Co., 621 So. 2d 1282, 1286-1287 (Ala. 1993) (holding that a jury may
resolve a § 235 claim only where evidence of a direct physical injury to the property exists).
5. Does the plaintiff have a valid Fifth Amendment takings claim?

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Noles alleges that the defendant City has taken or injured his leasehold property interest
as a lessee of the City’s stall at the Market. He cites the Fifth Amendment, incorporated by the
Fourteenth Amendment, to state that he is due to be compensated for the property taken. The
defendant does not address the substance of the Fifth Amendment, but rather simply states that
without as a protectable property interest, the plaintiff cannot put forth a Fifth Amendment
takings claim. See Marine One, Inc. v. Manatee County, Florida, etc., 877 F.2d 892 (11th Cir.
1989). The validity of this claim depends on the question of whether or not the plaintiff has a
protectable property interest, which is an unanswered question of state law.
6. Does the plaintiff have a valid § 1983 claim?
Noles alleges that the City’s physical removals and arrest of his person during the alleged
incidents violated his civil rights under color of state law. The Supreme Court in Albright v.
Oliver expressly held there is not a substantive right under the Due Process Clause of the
Fourteenth Amendment to be free from arrest or criminal prosecution except upon probable
cause. 510 U.S. 266, 271 (1994). The Court was relying on their previous decision in Graham v.
Connor, in which it found that “all claims claims that law enforcement officers have use
excessive force . . . should be analyzed under the Fourth Amendment and its ‘reasonableness
standard,’” rather than the Fourteenth Amendment. 490 U.S. 386, 396 (1989).
7. Does the plaintiff have a valid declaratory judgment claim?
Noles includes in his complaint a prayer for a declaratory judgment to invalidate
Ordinance 825 based on the state and federal constitutional grounds stated in his other claims.
The defendant points out that, if Noles has no protectable property interest, then he has no
standing to assert such an action. See Messer v. City of Douglasville, 975 F. 2d 1505, 1514 (11th

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Cir. 1992) (finding the plaintiff had no standing to challenge an ordinance where he failed to
show any violation of his individual due process rights). Again, the validity of this claim is
dependent on the existence of a protectable property interest, which is an unanswered question of
state law.
Conclusions of Court
The court in Marine One stated: “Having failed to prove the existence of a cognizable
property interest, the claims of both Schmidt and Marine One must fail as a matter of law.” Id.,
877 F.2d at 894. Although the Supreme Court of Alabama has not directly addressed the issue,
this court concludes that it would likely hold the same as would the Florida courts. Thus, this
court will dismiss all federal claims with prejudice and remand the state law claims.
This the 23rd day of January, 2013.

ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

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