915 SLR LLC et al v. City of Altamonte Springs et al

Filing 37

ORDER granting in part and denying in part 28 Motion to Dismiss for Failure to State a Claim. Signed by Judge Gregory A. Presnell on 4/25/2014. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
915 SLR LLC,
Plaintiff,
v.

Case No: 6:13-cv-1630-Orl-31DAB

CITY OF ALTAMONTE SPRINGS,
Defendant.

ORDER
This matter comes before the Court without a hearing on the Motion to Dismiss (Doc. 28)
filed by the Defendant, City of Altamonte Springs (the “City”) and the response in opposition
(Doc. 34) filed by the Plaintiff, 915 SLR, LLC (henceforth, “915 SLR”).
According to the allegations of the Amended Complaint (Doc. 25), which are accepted in
pertinent part as true for purposes of resolving the instant motion, 915 SLR owns a piece of real
property in Altamonte Springs. On July 12, 2012, the City “imposed a lien on” the property in
the amount of $27,031.87, purportedly as the result of “code violations”. (Doc. 25 at 2-3). The
City alleged three code violations as a basis for imposition of the lien: trash on the property, tree
removal without a permit, and non-compliance with a site plan. (Doc. 25 at 3). In the Amended
Complaint, 915 SLR asserts three claims against the City: “Inverse Condemnation/Takings”
(Count I); Slander of Title (Count II); and a Section 1983 claim for “Substantive Due Process
Violation – Grossly Excessive Fine” (Count III).
The Defendant points out that it is difficult to determine whether the Plaintiff is attempting
in Count I to assert an inverse condemnation claim or a regulatory takings claim. In its response,
the Plaintiff never addresses the point; however, the Plaintiff does cites to statutes dealing with

inverse condemnation rather than regulatory takings, so apparently the former is the type of claim
the Plaintiff intended to assert. In either case, such claims are subject to a ripeness requirement,
as the Constitution does not prohibit all governmental appropriation of property – it only prohibits
the government from doing so without just compensation. See, e.g., Williamson County Regional
Planning Com’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126
(1985) (where government provides adequate procedure for seeking just compensation, property
owner cannot claim a violation of the Just Compensation Clause until it uses that procedure
unsuccessfully). In its response, the Plaintiff does not assert that the state lacks such a procedure,
or that the state-provided procedure is inadequate. Rather, Plaintiff argues that Florida Statute
§253.763(2), which permits individuals aggrieved by the denial or granting of a permit to proceed
to state court, somehow trumps the ripeness requirement described above. This argument does
not merit discussion. Count I will be dismissed as unripe.
Count II, which asserts a claim for slander of title, sounds in tort. The State of Florida has
waived its sovereign immunity in tort actions, but only to the extent set forth in Fla. Stat. §768.28.
That statute requires that any such claim must be presented to the appropriate entity, and denied,
before any action on the claim may be brought. Fla. Stat. § 768.28(6)(a). The Plaintiff argues
that the Eleventh Circuit’s decision in Hattaway v. McMillian, 903 F.2d 1440 (11th Cir. 1990),
excuses it from having to abide by the notice requirement of Section 768.28. In that case,
however, the Plaintiff had provided the necessary notice before filing her complaint but had failed
to wait for the denial. In this case, there is no allegation that any notice has been provided.
Count II will be dismissed without prejudice.
The City seeks dismissal of Count III on the grounds that the Plaintiff has failed to state a
claim for violation of its substantive due process rights. However, although clumsily labeled,

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Count III attempts to assert a violation of the Eighth Amendment’s prohibition on excessive fines
rather than a violation of the Fourteenth Amendment’s due process clause. Accordingly, this
effort to dismiss Count III must fail.
In consideration of the foregoing, it is hereby
ORDERED that the Motion to Dismiss (Doc. 28) is GRANTED IN PART AND
DENIED IN PART. Count I and II are DISMISSED WITHOUT PREJUDICE. In all other
respects, the motion is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on April 25, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Party

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