Persaud Properties FL Investments, LLC v. The Town of Fort Myers Beach

Filing 41

OPINION AND ORDER dismissing Count III of 2 Complaint without prejudice; remanding case to the Lee County Circuit Court. The Clerk shall transmit a certified copy of this Opinion and Order to that court, terminate all pending motions as moot (denying as moot 40 Motion to Compel better responses; 10 Motion to Dismiss for Failure to State a Claim), terminate all deadlines, and close the case. Signed by Judge John E. Steele on 10/26/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PERSAUD
PROPERTIES
INVESTMENTS, LLC,

FL

Plaintiff,
v.

Case No: 2:17-cv-227-FtM-99CM

THE TOWN
BEACH,

OF

FORT

MYERS

Defendant.
OPINION AND ORDER
This matter comes before the Court on review of plaintiff’s
Complaint for Declaratory, Injunctive, and Monetary Relief (Doc.
#2) filed on May 1, 2017, and defendant’s Response to Order to
Show Cause (Doc. #35).

For the reasons set forth below, Count III

is dismissed without prejudice and this cause is remanded to state
court.
I.
This

case

was

filed

in

state

court

by

the

owner

of

a

beachfront restaurant and bar located on Fort Myers Beach against
the Town of Fort Myers Beach (defendant or Town), challenging the
Town’s decision that alcohol may not be served on the beach.

The

Complaint alleges in pertinent part as follows:
Plaintiff Persaud Properties FL Investments, LLC (plaintiff
or Persaud) is the current owner of the Sunset Beach Tropical Grill

(the Grill), located at 1028 Estero Blvd. (the Property), which
extends to the waters of the Gulf of Mexico in Fort Myers Beach,
Florida.

(Doc. #2, ¶¶ 7-8.)

The Grill was formerly known as the

Top of the Mast.
In 1974, the owners of the Property received zoning approval
to serve alcohol on the entire premises of the Property, including
the beach to the waters of the Gulf of Mexico.
11.)

(Doc. #2, ¶¶ 10-

In 1984, another entity purchased the Property, including

the license with zoning approval to serve alcohol on the beach.
(Id. at ¶ 12.)

When the Town was created in 1995, it grandfathered

zoning approval for all existing premises holding liquor licenses
to continue serving alcohol, provided they maintain their state
licenses.

(Id. at ¶ 13.)

The Town’s Land Development Code

indicates that zoning approval to serve alcohol on the Property
runs

with

the

land,

and

all

rights

and

obligations

previously transfer to new property owners upon sale.

granted

(Id. at ¶

14.)
In or about 2012, the Town decided to regulate the sale of
alcohol

on

the

beach

by

making

changes

to

Development Code, adopting Ordinance No. 12-03.
22.)

the

Town’s

Land

(Doc. #2, ¶¶ 21-

Pursuant to Ordinance No. 12-03, those property owners

holding prior state licenses and zoning approvals to serve alcohol
on

the

beach

were

granted

the

opportunity

to

modify

their

operations to comply with the Town’s new regulations or become a

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grandfathered non-conforming use.

(Id. at ¶ 23.)

Top of the Mast

chose to maintain its right to serve alcohol on the beach, which
became a non-conforming use of the Property.

(Id. at ¶ 24.)

Persuad purchased the Top of the Mast in July 2014, thereby
purchasing the right to serve alcohol on the beach.
15, Exh. B.)

(Doc. #2, ¶

On or about December 8, 2014, Persaud requested that

the Town sign off on its liquor license application to the State.
(Id. at ¶ 17, Exh. C.)

The Town failed to respond and informed

Persuad that it had lost the application.

(Id. at ¶ 18.)

Pursuant to the Town’s Land Development Code, non-conforming
uses continue until there is an abandonment of the permitted
location for a continuous period of nine months.

Abandonment

under the Town’s Code means a failure to use a location for
alcoholic consumption purposes as authorized by special exception,
administrative approval, or other approval.

(Doc. #2, ¶ 25.)

Pursuant to the Town’s Code, an establishment which continually
maintains and renews its state liquor license, even though it has
suspended active business with the public, shall not be deemed to
have abandoned the use, and is not subject to having its special
exception, administrative approval, or other approval removed.
(Id. at ¶ 26.)

Persuad has continuously maintained and renewed

its state liquor license since it purchased the Top of the Mast in
July 2014.

(Id. at ¶ 27.)

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On October 31, 2014, the Grill closed for renovations.
#2, ¶ 29.)

(Doc.

The renovations were expected to take four months, but

were delayed several months due to issues raised by the Town.
(Id. at ¶ 31.)

Because of the delays, the Grill did not reopen

until October 2015.

Throughout the renovations process, Persaud

had several conversations with the Town regarding the right to
serve alcohol on the beach and the Town assured Persuad that it
would not lose its right to serve alcohol on the beach while the
renovations were ongoing.

(Id. at ¶ 35.)

On October 2, 2015, after renovations were complete, Persaud
sent the Town a second letter requesting the Town issue Persaud
the requisite zoning approval needed to reactivate its liquor
license,

and

expressed

its

intent

to

“open

and

continue

the

business that has operated on this site for the last forty years.”
(Doc. #2, ¶ 36, Exh. D.)

During an October 7, 2015 meeting, the

Town’s Mayor told Persaud that it was removing Persaud’s nonconforming right to serve alcohol on the beach because Persaud had
not

reopened

the

Grill

within

nine

abandoned its non-conforming use.

months

and

had

(Id. at ¶ 38.)

therefore
The Town

informed Persaud that if it wanted to reopen the Grill and serve
alcohol, it had to submit a state application that limited the
sale of alcohol to the building and back deck only.
40.)

(Id. at ¶

Without the Town’s signature, Persaud would not have been

able to reactivate its license and serve alcohol.

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Faced with this

prospect, Persaud succumbed to the Town’s demands and submitted an
application to the state that did not include sale of alcohol on
the beach.

(Id. at ¶ 41.)

On or about October 22, 2015, the

liquor license was reactivated.

(Id. at ¶ 42.)

Plaintiff asserts that the Town did not follow any of the
procedures set forth in Section 34-1264 of the Town’s Code prior
to revoking Persaud’s right to serve alcohol on the beach.

The

Town’s Code requires that prior to revoking an administrative
approval, special exception, or other approval for the sale of
alcoholic beverages, the Town Council shall conduct a public
hearing at which the permit holder may appear and present evidence
and testimony concerning the proposed revocation.

This section

also requires the Town provide the property owner adequate prior
notice of the hearing.

(Doc. #2, ¶¶ 43-44.)

Instead, the Town

determined that Persaud had abandoned its right to serve alcohol
on the beach in direct contravention of its Code because the Town
desired to eliminate the sale of alcohol on Town beaches.

(Id.

at ¶ 45.)
Persaud seeks a declaratory judgment under Florida law (Count
I), and requests that the Court determine that the Town’s actions
constitute a taking without due process of law under both the
Florida

and

respectively.

United

States

Constitutions

(Counts

II

and

III

Persaud also request that the Court determine that

the Town has violated the substantive and procedural due process

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rights of plaintiff under Article I, Section 9 of the Florida
Constitution (Count IV).

Plaintiff seeks injunctive relief to

force the Town to issue zoning approval to serve alcohol on the
beach (Count V), and states a claim for equitable estoppel (Count
VI).
On May 1, 2017, this case was removed from the Circuit Court
of

the

Twentieth

Judicial

Circuit

in

and

for

Lee

defendant based upon federal-question jurisdiction.

County

by

(Doc. #1.)

Federal question jurisdiction is premised on Count III, which
asserts an uncompensated taking pursuant to 42 U.S.C. § 1983.
On June 28, 2017, the Court entered an Order to Show Cause
regarding subject-matter jurisdiction, citing Williamson County
Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195
(1985), which held that a federal constitutional takings claim
under the Fifth Amendment is not ripe until the plaintiff has
unsuccessfully
proceedings.

pursued

a

(Doc. #34.)

compensation

claim

in

state

court

In response, the Town states that it

has waived any Williamson ripeness issue by removing this matter
to federal court, citing cases from the Second and Fourth Circuits,
and urging this Court to find the same.

(Doc. #35, pp. 1-2.)

Alternatively, the Town asserts Count III should be dismissed
without prejudice and the case remanded to state court.

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II.
The Takings Clause of the Fifth Amendment provides: “nor shall
private

property

compensation.”

be

taken

for

public

U.S. Const. amend. V.

use,

without

just

The Fifth Amendment applies

to the States through the Fourteenth Amendment.
Rhode Island, 533 U.S. 606, 617 (2001).

See Palazzolo v.

A taking may result from

a “physical invasion” of the property or may follow a “regulatory
imposition.”

Good v. United States, 189 F.3d 1355, 1360 (Fed.

Cir. 1999) (citing Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1014–16 (1992)).

In Williamson, the Supreme Court held

that property owners who allege a takings claim under the Fifth
Amendment must first seek just compensation through the procedures
available under state law before bringing suit in federal court.
See 473 U.S. at 194–95.
Under Count III, plaintiff alleges that the Town “failed to
provide

Persaud

just

compensation

for

giving

up

Persaud’s

grandfathered use and Persaud’s constitutional right to be free
from arbitrary and extortionate government actions.”
76.)

(Doc. #2, ¶

Such a Fifth Amendment just compensation claim is not ripe

for judicial review, and the district court lacks subject-matter
jurisdiction
unsuccessfully
proceedings.

to

consider

pursued

a

it,

until

compensation

the
claim

plaintiff
in

state

has
court

Williamson, 472 U.S. at 195 (1985); Agripost, LLC

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v. Miami-Dade Cnty., Fla., 525 F.3d 1049, 1052 (11th Cir. 2008).
Plaintiff has not pursued such a state remedy.
The Town concedes that plaintiff has not yet availed itself
of the available state court inverse condemnation process.

The

Town, however, requests that the Court follow the Second and Fourth
Circuits and find that where a defendant removes a Fifth Amendment
takings

claim

from

state

to

federal

court,

the

Town

waives

Williamson’s state-litigation requirement.
The Court declines to follow such authority, and will follow
the well-established precedent from the Eleventh Circuit.

See

Reahard v. Lee Cnty., 30 F.3d 1412, 1417 (11th Cir. 1994).

The

Eleventh Circuit has recognized that “several district courts
outside this circuit are divided on whether a defendant’s right to
removal of a federal claim is separate from the issue of ripeness,”
Bauknight v. Monroe Cnty., Fla., 446 F.3d 1327, 1331 (11th Cir.
2006), but has not approved of the ability of a party to waive a
jurisdictional prerequisite.
Because Count III is not ripe, it will be dismissed without
prejudice.

Because

there

is

no

other

basis

for

federal

jurisdiction, the remainder of the case will be remanded to state
court.

See Reahard, 30 F.3d at 1417-18.

Accordingly, it is hereby
ORDERED AND ADJUDGED:

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1.

Count III of the Complaint (Doc. #2) is dismissed without

prejudice.
2. The Clerk is directed to REMAND the case to the Circuit
Court of the Twentieth Judicial Circuit, in and for Lee County,
Florida, and to transmit a certified copy of this Opinion and Order
to the Clerk of that court.
3.

The Clerk is directed to terminate all pending motions

and previously scheduled deadlines and close this case.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2017.

Copies:
Counsel of Record

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26th

day