HomeMy WebLinkAboutR-96-0092J-96-110
2/5/96
RESOLUTION NO. 9 5 ` 92
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY WALTER LEWIS WILLIAMS, WITHOUT
ADMISSION OF LIABILITY, THE SUM OF
$52,710.00, IN FULL AND COMPLETE SETTLEMENT
OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE
CITY OF MIAMI IN UNITED STATES DISTRICT
COURT, CASE NO. 92-1699-CIV-GRAHAM, UPON THE
EXECUTION OF A GENERAL RELEASE RELEASING THE
CITY OF MIAMI FROM ANY AND ALL CLAIMS AND
DEMANDS; ALLOCATING FUNDS THEREFOR FROM THE
SELF-INSURANCE AND INSURANCE TRUST FUND,
INDEX CODE NO. 620103-661.
WHEREAS, Walter Lewis Williams, through his attorney, filed
a claim and lawsuit against the City of Miami, in the United
States District Court, Southern District of Florida, Case
No. 92-1699-CIV-GRAHAM, for alleged violation of civil rights,
negligence, and conversion, arising out of the demolition of the
unsafe structure, then allegedly under repair, on his rental
property, located at 3230 Northwest 8th Avenue, Miami, Florida,
that occurred on October 25, 1989; and
WHEREAS, the above claim and lawsuit have been investigated
by the Tort Committee of the City Attorney's Office and the
Department of Risk Management pursuant to Ordinance No. 8417,
which created the City of Miami's Self -Insurance and Insurance
Trust Fund and said Offices recommend that said claim and lawsuit
be settled for the sum of $52,710.00;
CITY COMMISSION
MEETING OF
FEB 2 9 1996
Resolution No.
96- 92
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Director of Finance is hereby authorized
to pay Walter Lewis Williams, forthwith, without the admission of
liability, the sum of $52,710.00, in full and complete settlement
of any and all claims and demands against the City of Miami, in
the United States District Court, Southern District of Florida,
Case No. 92-1699-CIV-GRAHAM, upon the execution of a general
release, in a form acceptable to the City Attorney, releasing the
City of Miami from any and all claims and demands, with funds
therefor hereby allocated from the Self -Insurance and Insurance
Trust Fund, Index Code No. 620103-661.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 29th da of February 1996.
•
STEPHEN P. CLAR , MAYOR
ATTEST:
pica
WALTER (J . 0
CITY CLE K
SELF-INSURANCE AND
INSURANCE REVIEW
BUDGETARY AND FINANCIAL
REVIEW:
t ROLLASON, DEPUTY CHIEF MANOHAR S. SURANA
CHIEF OF RISK MANAGEMENT ASSISTANT CITY MANAGER
- 2 -
96- 92
PREPARED AND APPROVED BY:
WAR EN BITTNER
AS,S STANT CITY ATTORNEY
PPROVED AS TO FORM AND CORRECTNESS:
A. Q01NN PrOVES, III
CITY ATT T
Y
W585:WB:BSS
- 3 -
96-- 92
TO
FROM
Honorable Mayor and Members
of the City Commission
A. inn o s, III
City Atto y
CITY OF MIAMI, FLORIDA CA=!9
INTER -OFFICE MEMORANDUM
January 24, 1996 J-96-110
DATE :
FILE
Settlement: Case No. 92-1699-Civ-Graham
susJEcr :
Walter Lewis Williams
City Commission Agenda
REFERENCES
: February 29, 1996
(2)
ENCLOSURES:
The attached proposed Resolution is submitted for Commission
consideration concerning the settlement for the above -referenced
+ case. The details of said case are set forth in the attached
Tort Memorandum.
This item has been submitted to the Agenda Coordinator for
placement on the February 29, 1996 City Commission Agenda.
W053:BSS
96- 92
CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
Members of the Tort Committee
CRONI
Warren Bittner
Assistant City Attorney
DATE January 17, 1996 FILL-92-247
SUBJECT Walter Lewis Williams v. City of Miami
D/1: October 25, 1989
L/1: 3230 N.W. 8th Avenue
REFERENCES Miami, Florida
ENCLOSURES Claim No. 01 I/POL-91-001
rNFIDENTIAL: THIS DOCUMENT IS NOT SUBJECT TO DISCLOSURE
A PUBLIC RECORD UNTIL SO NOTIFIED TO THE CONTRARY BY
THE CITY ATTORNEY'S OFFICE. This documents was prepared by the
Miami City attorney to reflect mental impressions, conclusions, and litigation
strategy in pending civil litigation involving Walter Lewis Williams and the City
of Miami, United States District Court, Case No. 92-1699-Civ-Graham. This
document is exempt from Public Records disclosure as an attorney work -product
until such time as all litigation and administrative proceedings involving said
parties have been concluded. [Section 119.07(3)(n), Fla. Stat. (1991)). -
REQUEST FOR SETTLEMENT AUTHORITY
STATUS:
This case is specially set for trial before Magistrate Steven Brown on February 26,
1996. The City's Motion for Summary Judgment was denied by the Court after briefing and oral
argument on November 8, 1995. The Magistrate recommended that Plaintiff's Motion for
Summary Judgment be granted (copy attached), finding that the City of Miami had denied
the plaintiff his civil rights in violation of 42 U.S.C. sec. 1983, on June 22, 1995, but, upon
objection to the District Judge, this recommendation was set aside on the basis of the existence of
unresolved factual issues (copy attached). Mediation was held on December 28, 1995, during
which a settlement was reached, subject to City Commission and Tort Committee approvals.
FACTS:
On May 5, 1988, the claimant's rental property at 3230 N.W. 8th Avenue was involved in
a fire. Several weeks later, on May 26, 1988, the clergy and staff of Corpus Christi Catholic
Church and Elementary School, located directly across the street, complained to the Unsafe
Structures Section, who responded by inspecting the property. The inspector found the building
vacant, partially boarded, heavily fire damaged, and with junk and debris in the yard.
Mr. Williams was given his First Notice to repair or demolish the structure on June 22,
1988. He did nothing in response.
96- 92 7
Members of the Tort Committee
Re: Walter Lewis Williams
1 / 18/96
2
Mr. Williams was given a Final Notice on July 20, 1988, requesting that the building be
demolished within thirty days and threatening Unsafe Structures Board action if Mr. Williams did
not comply.
Because Mr. Williams did not comply with the Final Notice, the case was taken before the
Dade County Unsafe Structures Board (USSB) on January 10, 1989. Mr. Williams appeared
before the Board and requested 90 days to repair the building. The Board granted his request and
ordered that he obtain permits within 30 days, and "substantially" complete repairs within 90
days thereafter. Finally, the Board ordered that the City demolish the structure if its order was
not complied with. Mr. Williams did not appeal this decision.
Under the USSB Order, Mr. Williams had until May 11, 1989, to "substantially"
complete repairs; in the City's view they were not; in Plaintiffs view they were.
On July 28, 1989, Hector Lima, wrote to Mr. Williams, "If you do not contact this office
within a 2-week period, the City of Miami will carry out the instructions to demolish the
property." Mr. Williams did call Mr. Lima and claims that he was given an indefinite extension to
complete repairs. Mr. Lima denies giving any extensions, but he admits writing into the file,
"Owner - will have new electrical contractor and completion within 30-45 days." Whether an
extension was granted or not will be a question of fact for the jury to decide.
Attached are photographs of the house, clearly showing that some repairs had been
undertaken, which were shot at about this time period.
On August 1, 1989, a structural field check was performed by City Structural Inspector,
Dennis Poin, who noted. "F/C House secured. Framing work in progress."
On August 17, 1989, less than 45 days from the time he spoke on the telephone with
Mr. Williams. and without_ giving any notice to Mr. Williams of his intention to do so.
Hector Lima sent the case out for demolition bids, writing in the file, "Not complied with USSB
decision - sent out for bids under #23861".
On August 30, 1989, without first checking with Hector Lima, as is required, an electrical
permit was issued by the Building and Zoning Permit Counter for the property.
On October 2, 1989, an electrical inspection was performed by the City and the rough
electrical was "approved," i.e., it passed the inspection.
On October 13, 1989, City Structural' Inspector Dennis Poin again conducted a Field
Check and notes, "Field Check Okay," which the plaintiff claims, and the Court found, over the
City's objection, constituted another passed inspection.
8
WRB:TORTWMI.DOC 9 6 - 92
Members of the Tort. Committee
Re: Walter Lewis Williams
1 / 17/96
On October 19, 1989, the City issued a press release announcing that, in celebration of
Red Ribbon Day, and in the City's continuing fight against illegal drugs, Mr. Williams' property
would be demolished. Mr. Williams was not provided with a copy of this press release, or
otherwise notified of the imminent impending demolition.
On October 25, 1989, in front of T.V. cameras and photographers, hundreds of Corpus
Christi Elementary School children cheered as the City demolished Mr. Williams' property. Mr.
Williams was not present and was not invited to the planned celebration. Mr. Williams first
learned of the demolition that day when he was watching the evening news.
DAMAGES:
A. Property Damage:
In 1988, several months prior to the fire, Mr. Williams claims he had received an
offer to sell the property (building and land) for $43,000.00. Of course, the fire damaged the
building only, but by the implicit finding of the Unsafe Structures Board, it was repairable. Prior
to taking the case to the Unsafe Structures Board, the City estimated the value of the building to
be $12,030.00. Mr. Williams has submitted verifiable receipts for his expenses to repair the
property in the amount of $12,365,97. The demolition lien imposed by the City, and paid by Mr.
Williams is $2,173.69. Total property damages are: $26,569.66.
B. Attorneys Fees:
Because this is a civil rights case arising under federal law, if the plaintiff is
successful in recovering even one dollar ($1.00), he will be entitled to recover all of his attorneys
fees. The City has been vigorously litigating this case since its inception on the theory of law that
once an owner receives jeopardy notice and is warned that no further extensions will be given,
and yet fails to seek judicial review .(which are the facts here), the owner is not entitled to any
further notice and is estopped from asserting estoppel against the government. Miles v District
of Columbia, 510 F.2d 188 (D.C. Cir. 1975); Hagen v Traill County, 708 F.2d 347 (8th Cir.
1983); Tingle v City of Wichita, 505 P.2d 717 (Kan. 1973); Hroch v City of Omaha, 4 F.3d
693 (8th Cir. 1993); and Fierce v Village of Divernan, RL, 17 F.3d 1074 (7th Cir. 1994). Both
the Magistrate and District Judge rejected this body of case law (which is non -binding precedent
from other jurisdictions) and, instead, also relying on non -binding precedent from other
jurisdictions, found that procedural due process rights could arise from estoppel due to the actions
of government officials. Miles v District of Columbia, 510 F.2d 188 (D.C. Cir. 1975).
Based on the number of hours the undersigned has spent working on this case, and
assuming that the plaintiff has spent a similar period of time, plaintiff's claim for attorneys fees
could easily exceed $150,000.00 to $200,000.00, not including the time required for trial, which
could be another $30,000.00 to $40,000.00.
W R&TORTMEM 1.DOC 9 6 ` 9
�j 9 ,�
Members of the Tort Commi,
Re: Walter Lewis Williams
1/17196
.4
C. Litigation Costs
Plaintiff has litigation costs which he is obligated to pay in the amount of
$6,141.04, representing mostly deposition transcripts, filing fees and subpoena fees. The City has
expended a similar amount.
ANALYSIS:
The claimant has advanced four theories of liability: (1) violation of federal civil rights by
deprivation of procedural due process under s. 1983 for failure to give the claimant notice of the
ultimate determination that his property would finally be demolished; (2) violation of federal civil
rights by deprivation of substantive due process claiming that the City's actions were arbitrary and
capricious and done for improper motive; (3) state law conversion premised upon the theory that
the City was without authority to demolish the property because repairs were "substantially"
complete at the moment of demolition; and (4) state law negligence in failing to reinspect to
determine whether or not the repairs to the property were "substantially" complete prior to
demolition.
The .i -'c Motion for. Summary Judgment was granted on claims 2 and 4. above and
denied on claims 1 and 3 above. The factual issues which precluded the court from granting the
Pla_ 'ntM Motion for Summary Judgment against the City on the procedural due process
claim were: (a) whether or not the City lead Mr. Williams to believe that demolition would not
take place while permits were being issued and inspections were being conducted; and (b)
whether Hector Lima gave Mr. Williams a 45 day extension of time, and then jumped the gun, by
not giving the claimant a full 45 days to complete repairs prior to sending the case out for bids.
The claimant has made a somewhat compelling estoppel argument, if his factual assertions are
ultimately believed by the jury, and estoppel applies (which the Court has already found does
apply).
RECOMMENDATION:
Settlement, subject to City Commission approval, in the amount of $52,710.00,
of all attorneys fees.
A D/DISAPPROVED - Authority in the amount of $52,710.00
inclusive
1 OWRB:TORTMEMI.DOC 9 92
Members of the Tort Commluee 1/17/96
Re: Walter Lewis Williams 5
C E . MA
Chief Assistant City Attorney
r '
LEOPkWIRTEL
Assis t City Attorney
CRUSTOPHER F. K TZ
As ant City For y /
DAVID F TIER, JR ,
Assistant City Attorney
/THERESA L. GIRTIN
Assistant City Attorney
DAVID Z. STOA
Assistant City Attorney
Review as to Content and Proposal:
FRANK K. ROLLASON, Deputy Chief
Chief of Risk Management
wRB:Tox'rnEnsi.00c
6_ 92 11
92-1699. rr UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
J— --
CASE NO. 92-:699 CIV GRAHAM
WALTER LEWIS WILLIAMS,
Plaintiff,
VS.
CITY OF MIAMI,
Defendant.
REPORT AND RECOMMENDATION
THIS MATTER is before this court upon both parties' Motions
for Summary Judgment. Defendant has filed a Motion for Summary
' r
Judgment (D.E. 139) and plaintiff has filed a Motion for Partial
Summary Judgment (D.E. 160). The parties have submitted Statements
of Material Facts pursuant to Local Rule 7.5 and, pursuant to court
order, the parties filed a joint factual stipulation prior to the
hearing which took place in this matter on March 14, 1995. This
court has considered the argument presented at that hearing, the
motions, responses, replies, and various statements of facts, as
well as all other pertinent materials in the file.
While there are some factual disagreements in this case, there
are none so material as to require this court to recommend denial
96- 92 13
of both Motions for Summary Judgment. This is because the material
facts in
this case are not
in
significant dispute.
This
court finds that
the
plaintiff owned a home at 3230 N.W.
8th Avenue in Miami. On May 5, 1988 the house caught fire and was
substantially damaged. The fire destroyed rugs, damaged the
flooring, the roof, and the doors. As a result of complaints by
the clergy and staff of Corpus Christi Catholic Church and
Elementary School which was located directly across the street from
the house, the City of Miami inspected the property. Subsequent to
that inspection, on June 22, 1988 plaintiff was sent notice that
the property was in bad shape and had been inspected by'the Unsafe
Structures Section of the City of Miami. The plaintiff was advised
to obtain a demolition or building permit so as to remedy the
problem, one way or the other, and the notice further indicated
that it might be necessary for the city to move toward demolition.
Thereafter, on July 5, 1988 the chief of the City of Miami's Unsafe
Structure's Section received a call from the plaintiff indicating
that he was awaiting an insurance payment and that he would
maintain the structure in a secured fashion. Shortly thereafter
plaintiff received the aforementioned insurance payment. On July
20, 1988 the chief inspector for the City of Miami Unsafe
Structures Section sent ' a Final Notice of Violation,
2
14 96- 92
Demolition/Order to the plaintiff. In pertinent part it requests
that the building be demolished within 30 days from the date of
that notice but gives the owner of the property a right of appeal.
Though plaintiff did not appeal, the City of Miami proceeded to
take the case to the Dade County Unsafe Structures Board which
conducted a hearing on January 10, 1989 with the plaintiff present.
At that hearing the Unsafe Structures Board allowed the plaintiff
30 days to obtain a permit to repair the structure and 90 days to
substantially complete the repairs (per plaintiff's request). The
ruling of the board stated "if any of the above conditions are not
complied with said structure shall be demolished by the City as
soon as practicable." While plaintiff did not obtain a permit
within the 30 days mandated, he did obtain one on March 13, 1989.
This permit was obtained from the..City of Miami's Permit Counter as
an owner/builder but not through the Unsafe Structures Section or
a licensed contractor as the prior order had required.
Subsequently, however, a Code Enforcement Supervisor for the Unsafe
Structures Section became aware of that permit.
On April 10, 1989 plaintiff entered into a contract for
rewiring of the house. The wiring was not completed because after
the rough electrical work was done someone broke in and stole it.
As of May 11, 1989, (the 120th-day following the order of the
3
96- 92 15
Unsafe Structures Board), the repairs to the structure were not
substantially completed, however no efforts were made to seek
demolition at that time. On June 27, 1989 inspection of the
property by an Unsafe Structures Section inspector noted that some
repair work had been done. The next day the chief of the section
wrote the plaintiff a memorandum saying "if you do not contact this
office within a two week period, the City of Miami will carry out
the instructions to demolish the property." Plaintiff complied
with this request and the inspectors notes indicate donfirmation of
a call from the plaintiff with an indication from the plaintiff
that a new electrical contractor will be on board shortly and he
expects completion within 30 to 45 days. A subsequent inspection
by a structural inspector on August 1, 1989 noted that repair work
was being done as did a report of August 10, 1989.
On August 17, 1989 the chief of the Unsafe Structures Section
began to seek bids for the demolition of the house in question.
On August 30, 1989 an electrical permit was issued to
Electrical Masters, Inc. for the subject property and on October 2,
1989 an electrical inspection was made and the rough electrical
work done on the house was approved. On or about October 19, 1989
the city gave notice to the local news media that the house in
question would be demolished. The press release was forwarded to
4
16 96-- 92
the Corpus Christi Church but not to the plaintiff. Finally, on
October 25, 1989 the house was demolished.
Count I of plaintiff's complaint (which is the count for which
plaintiff is seeking partial summary judgment) claims liability
pursuant to 42 U.S.C. § 1983 for violation of procedural due
process.
"Procedural Due Process imposes constraints on governmental
decisions which deprive individuals of... 'property, interests
within the meaning of the Due Process Clause of the Fifth or
Fourteenth Amendment." See ,Mathews M. Eldridcre, 424 U.S. 319, 332,
96 S.Ct. 893, 47 L.Ed.2d 18 (1976). There can be no question but
that the plaintiff herein was deprived of a "property" interest,
since he was deprived of his actual property. Due process requires
that a hearing be held before an individual is deprived of a
property interest and that such hearing should be held in a
meaningful fashion both as to the manner of the hearing and the
time it takes place. See e.g. Mathews, au = at 333. The hearing
must be reasonable under all circumstances and must apprise the
interested parties of the pendency of the action. plus afford them
an opportunity to,present their positions. See e.g. James v. city
E
17
96- 92
of St Petersburg, Florida, 6 F.3d 1457 (llth Cir. 1993). When the
property being destroyed is a building or a structure, a
governmental entity destroying same should give the owner
sufficient notice, a hearing, and opportunity to either destroy the
building himself or make repairs. See Miles v. District of
Columbia, 510 F.2d 188 (D.C. Cir. 1975).
There is no question that notice and a hearing was given the
plaintiff in this case. However, the court's resolution of this
motion does not end there. It is quite clear that the activities
that took place after the notice of hearing mandated later notice
prior to demolition., This case is unlike the case of Hagen v.
Traill _County, 708 F.2d 347 (8th Cir. 1983), where property was
destroyed and the plaintiff sued for violation of due process. In
that case, however, the plaintiff not only appeared before a
township board in April of 1979 but was given subsequent notice
prior to demolition on July 25, 1979. This is a significant
distinguishing factor from the instant case because in this case,
actions of the city made clear that they were not following the
letter of the law with regard to the order of the Unsafe Structures
Hoard. The city granted permits, had additional discussions with
the plaintiff, and sent correspondence to the plaintiff which was
obviously inconsistent with pending demolition. There is also
6
18 92
uncontroverted evidence in this case that at least some efforts
were being made to undertake repair work. Permits were clearly
obtained from the city and the general stream of activity was such
that when the city later decided, again, that demolition was
appropriate, notice was likewise appropriate.
This court finds the instant case much more in line with
M1�, Zun_ra. There the district court in the District of Columbia
found due process to be violated under facts somewhat similar to
those in the instant case. The only difference 'of significance is
the amount of time that expired from the original notice of
condemnation to the actual condemnation taking place. In the
instant case it is not the mere passage of time that is relevant so
much as the activities that took place during the passage of time.
Had the city given no reason to the plaintiff (real or apparent) to
suggest that it was not prepared to proceed with demolition, it may
well be that the ultimate demolition that took place in October may
have been proper. This court finds that where, as here, the city
acted inconsistent with the earlier order of the Unsafe Structures
Board, it was incumbent upon the city to give notice, again, before
depriving the plaintiff of his property interest.
In making a determination whether or not the plaintiff
received due process in this' case the courts have noted a three
7
96_ 92 19
step test that must be considered. See e.g. Wig, 9==; JAM=,
tea; C;,in Inc. v. Brady, 877 F.2d 858 (11th Cir. 1989) .
The first consideration is the private interest that will be
affected by the official action. In the instant case, unlike
others where there may be a temporary deprivation or a post
governmental action -remedy, the private interest in this case was
the destruction of a home owned by the plaintiff. The second
factor to consider is whether there could be an improper or
erroneous deprivation of this interest through the procedures that
are being used and consideration of what value, if any, additional
safe guards might be.' In that regard the procedures being followed
by the City of Miami create a significant risk of erroneous
deprivation and could be easily remedied. In this case the actions
of the city clearly left the "reasonable man" with a belief that
the city was not prepared to go forward with the demolition, or at
the very least left this "reasonable man" in something of a
quandary.
While it has been argued to this court that the actions of the
Unsafe Structures Section was, for the most part, non -wavering,
there are two problems with this argument: (1) the facts in the
record do not support this position and (2) even if true do not
explain the actions of other arms of the City of Miami. It is the
8
20 96- 92
city that is a defendant in this case and the city that is
responsible for making sure that due process is afforded those
being deprived of property. The Unsafe Structures Section of the
city cannot hide its head in the sand and say that because they
were unaware of permits given to electrical contractors and the
like in this case in a "different section of the city offices" that
somehow they are irrelevant. After all,' the City of Miami is the
City of Miami.
It would have been very easy in this case, and'would be easy
in all similar cases, for the city to simply send out a further
notice if the city reaches a decision that the ongoing dialogue
between the property owner and the city is not bearing fruition and
that, while the city may have delayed demolition in hopes of other
solutions, it comes to the conclusion that those other solutions
are not forthcoming. To spontaneously opt for demolition, as
happened in this case, is very similar to what occurred in Idea,
sugra, and mandates a similar result. While the record is clear
that the city sought demolition bids, even sent notice to the media
and others, there is no justifiable reason why the city could not
have placed the homeowner on notice when, for example, the bids for
demolition went out. Finally, the court must consider the
Government's interest and the. fiscal and administrative burdens
E
96- 92 z�
that this additional procedural requirement would entail. Here
again, this is minimal when compared with the actual deprivation of
ones property. A minimal amount of "procedural due process" in
this case could have avoided the consequences that occurred and, of
course, the result mandated in this lawsuit. While this court
finds support in Resolution Trust Corporation v Town of Highland
Beach, 18 F.3d 1536 (llth Cir. 1994) cited by plaintiff, that
opinion has since been vacated by the Eleventh Circuit.
Defendant argues that the order of the Dade County Unsafe
Structures Board indicated clearly that plaintiff would be served
no further notice and no extensions of time. While this is quite'
correct, the record is also quite clear that in fact plaintiff did
receive further extensions of time and communications inconsistent
with the heart and sole of this order. There is admittedly
question about whether or not plaintiff ever intended to follow the
mandates of the order of the Unsafe Structures Board and whether he
did enough or exactly ghat he did with regard to attempting repair
of the house in question. However, while defendant would
understandably seek to have this court focus on the actions of the
plaintiff, it is the actions, or lack thereof, of the defendant,
that control whether there has been a due process violation.
Much of defendant's argument against the procedural due
10
22 96_ 92
process claim of plaintiff has to do with the decision of the
Unsafe Structures Board and the binding effect of it. However,
i
this court is unmoved by the law cited in support of this position
since this court does not find these administrative proceedings
relevant to the issue before the court. Plaintiff is not
contesting the propriety of the decision of the Unsafe Structures.
Board. Plaintiff is contesting the actions taken by the City of
Miami subsequent thereto. It is quite obvious that the City of
Miami was not bound by the decision of the Unsafe Structure Board
since it did not follow the mandates of that order, as well.
Therefore all of the argument made by the defendant about the
presumption afforded agency rulings, while absolutely correct, is
irrelevant to the issues framed in this lawsuit. Additionally,
this court is unmoved by the supporting authority cited by the
defendant of Tingle v. City of Wichita, 505 P.2d 717 (Kan. 1973).
To begin with, the Supreme Court of Kansas is not binding authority
,on this court. More importantly, however, the facts in Tingle are
distinguishable from the facts in the instant case. In that case,
at least the left hand knew what the right hand was doing. For
example, prior to the demolition taking place in the Tingle case
the second building permit was cancelled over one month before the
demolition took place. There is no evidence in this record that
11
9G_ 92 z3
any building permit were cancelled prior to demolition. One could
argue, with support, that notice was given to the owner in T'�a
when the building permit was cancelled. No such argument can be
made in the instant case.
r Yr • , � ; " �alr : �M Y • • , • � ; r1.vtY : ; lqi dv�c�.MM
Defendant's Motion for Summary Judgment requires this court to
focus on the issues of substantive due process, conversion, and
whether the defendant can be held liable for negligence or whether
that liability is precluded by sovereign immunity.
In this circuit for there to be a finding of a violation of
substantive due process it,must be determined that there has been
a deprivation of a federally constitutionally protected interest
and, if that occurs, it must be found that it resulted from an
abuse of government power sufficient to raise an ordinary tort to
the level of a constitutional violation. See e.g. Greenbriar. Ltd.
v. City of A7aj2aster, 881 F.2d 1570 (1.1th Cir. 1989); Rymer v.
Douglas County., 764 F.2d 796 (11th Cir. 1985). There must be an
improper motive on the part of the government indicating an action
that would be described as arbitrary and capricious and lacking in
a rational basis. See e.g. Spence v. Zimmerman, 873 F.2d 256 (llth
Cir. 1989). The ultimate question of whether or not the
12
24
96— 92
governmental act is arbitrary and capricious has been held to be a
question of law for the court. See Greerbriar L,td-, The
court must decide "whether governmental actions so offend standards
of decency and fairness as to implicate constitutional
protections." ,Td, at 1578 (Footnote 15). A city's dealing with a
problem of rodents, transients, vandals, and general protection of
a neighborhood has been considered to be a constitutionally
permissible
objective.
See Spence,
alUM& at 250. Additionally,
even if this
court views
the facts
in a light mast favorable to the
plaintiff (the non-moving party) that the real reason this building
was summarily demolished was for the fact that it was -an alleged
eye sore in the neighborhood and provided a haven for drug users,
this court does not find this motive to be of the improper type
necessary to support a finding of a violation of plaintiffs
i
substantive due process rights. Accordingly, this court will
recommend granting defendants Motion for Summary Judgment on the
substantive due process issue.
Conversion under Florida law has been defined as an
unauthorized act which deprives another of his property permanently
or for an indefinite time. See Miggabec Mar antile, Inc. v.
Donaldson. et al., 853 F.2d 834 (llth Cir. 1988); Senfeld v. Bank
13
96- 92 25
of Nova Scotia Trust Co., 450 So.2d 1157 (Fla. 3d DCA 1984). Proof
of knowledge or intent to wrongfully deprive a person of his
property is not required to impose liability for conversion. see
(Fla. 5th DCA 1987). See also Landsman Packing Company. Inc. v.
Continental Can Company. Inc., 864 F.2d 721 (llth Cir. 1989).
There is no question that the facts in this case indicate a
deprivation of property permanently or for an indefinite time.
Defendant, however, would state that there is no claim for
conversion because the acts of the defendant were not
"unauthorized". In•support of that position defendant -has quoted
the Restatement of Torts 2d, § 865 which provides that "one is
privileged to commit an act which would otherwise be a trespass to
a chattel or a conversion if he is acting in discharge of a duty or
authority created by law to preserve the public safety, health,
peace, or other public interest, and his act is reasonably
necessary to the performance of his duty or the exercise of his
authority." (emphasis added).
The problem here is that there is a factual 'question that
surrounds whether, at the time of the demolition, the acts of the
City of Miami were "reasonably necessary". Indeed the case cited
by the city in its reply memorandum is supportive of this position.
14
26 96_ 92
I '
In Strickland, ajU, the court noted that the question of whether
a seizure was authorized or not is a factual question to be
determined at trial. This is essentially the same situation as we
have in the instant case. Accordingly, defendant's Motion for
Summary Judgment on the issue of conversion should be denied.
�WYAMOWAZIWOII M� W 4 Y1 11)\
Plaintiff has also sued on a basic negligence claim contained
in Count IV, particularly in paragraph 27. The city takes the
position that this claim is barred by the Doctrine of Sovereign
Immunity which, essentially, will bar this claim if the alleged
acts of the city were discretionary in nature as opposed to
operational as set forth in greater detail in Trianon Park
Condominium v. City of Hialeah, 468 So.2d 912 (Fla. 1985). This
court agrees with plaintiff's response noting that "sovereign
immunity turns on the nature of the claim - whether it is
operational or discretionary..." (pg. 10 of plaintiff's response
citing Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d
332 (1990)). However, this court must respectfully disagree with
plaintiff's conclusion that the errors that occurred, if they
occurred, were "operational" in nature. Plaintiff's only response
to defendant's argument is a re -argument of plaintiff's position on
15
96- 92 27
procedural due process which this court has already dealt with.
The actions of the city (indeed the allegations against the city),
most closely resemble the caseof �omSr;nccrS v
Garringan, 510 So.2d 1198 (Fla. 2d DCA 1987), (if not Trianon Eark,
itself), wherein the court held that actions of a building
inspector are similar to city mistakes in enforcing its building
code which are discretionary functions to which immunity attaches.
Accordingly, summary judgment on the common law claim of negligence
should be GRANTED.
It is therefore respectfully recommended that plaintiff's
Motion for Partial Summary Judgment on Count I of the Amended
Complaint be GRANTED. It is further recommended that defendant's
Motion for Summary Judgment be GRANTED as to Counts II and IV of
the Amended Complaint and DENIED as to Count III.
The parties have ten (10) days from the date of this Report
and Recommendation within which to serve and file written
objections, if any, with the Honorable Donald L. Graham, United
States District Judge for the Southern District of Florida.
Failure to file objections timely shall bar the parties from
attacking on appeal the factual findings contained herein. Locoate
v. Dugger, 847 F.2d 745 (llth Cir. 1988), cert. denie , 488 U.S.
16
28 96- 92
958, 109 S.Ct. 397 (1988). ei
DONS AND ORDERED this r' day of June, 1995 at Miami,
Florida.
CC: Honorable Donald L. Graham
Jeffrey B. Crockett, Esq.
Warren Bittner, Esq.
17
r T. BROWN
GISTRATE JUDGE
96-- 92 29
406 2 8'1995 ITED STATES' DISTRICT COURT
OUTHERN DISTRICT OF FLORIDA
C LE C/RIUS fUrNnE
S.D. 1 U.S. DIST. cr• r
S.D. OF FL A. M)AMI .
ase No. 92-1699-CIV-GRAHAM
WALTER LEWIS WILLIAMS,
Plaintiff(s),
VS. ORDER AFFIRMING MAGISTRATE'S
REPORT AND RECOMMENDATION
CITY OF MIAMI, IN PART
Defendant(s).
THIS CAUSE came before the Court upon the following:
1. Defendant's Motion for Summary Judgment (DE 139); and
2. Plaintiff's Motion for Partial Summary Judgment (DE
160) .
THESE MATTERS were referred to the Honorable U.S. Magistrate
Judge Brown. A Report and Recommendation dated June 22, 1995 has
been filed, recommending that the Defendant's Motion for Summary
Judgment be GRANTED IN PART AND DENIED IN'PART and that
Plaintiff's Motion for Partial Summary Judgment be GRANTED. The
Defendant and the Plaintiff have filed objections and responses
to the Report & Recommendation. The Court .has reviewed da nnovo
the pertinent portions of the file, and being otherwise fully
advised in the premises, it is
ORDERED AND ADJUDGED that United States Magistrate Judge
Brown's Report & Recommendation of June 22, 1995 is hereby
RATIFIED, AFFIRMED AND APPROVED IN PART.
With respect to Count I (procedural due process), the Court
96- 92 31
finds that there is a dispute of material facts with regard to
whether or not the City acted inconsistently with its intent to
demolish the subject property, such that a second notice of
demolition was required. These disputes revolve around (1)
whether or not the plaintiff received an extension on the Dade
County Unsafe Structures Board ruling of January 11, 1989; (2)
whether or not the inspections by the Unsafe Structures Section
were actions that were inconsistent with the City's intent to
demolish plaintiff's house (3) whether or not the plaintiff was
aware of inspections that were being conducted by the Unsafe
Structures Section and (4) whether or not the issuance of an
electrical permit from the City of Miami (but not the Unsafe
Structures Section) and a subsequent inspection by the City
approving the rough electrical work were acts that were
inconsistent with the City's intent to demolish the plaintiff's
home. Tingle v City of Wichita, 505 P.2d 717, 721 (Kan. 1973)
and Miles v. Distrri t of Columbia, 510 F.2d 188, 193 (Cir. D.C.
1975) .
With respect to Count III (conversion), the Court finds that
there is a dispute of material facts regarding whether the razing
of plaintiff's land was authorized. E.J. Strickland Cgnstr.,
Inc. v. Department of Agriculture & Consumer Services, 515 So.2d
1331, 1336 (Fla. 5th DCA 1987).
Neither party has contested the dismissal of Counts II
(substantive due process) and IV (negligence). Therefore, it is
32
96- 92
ORDERED AND ADJUDGED as follows:
1. Defendant's Motion for Summary Judgment (DE 139) is
DENIED as to Counts I and III and GRANTED as to Counts
II and IV; and
2. Plaintiff's Motion for Partial Summary Judgment (DE
160) is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this -2
day of August, 1995.
S�'
DONACD L. GRAHAM
UNITED STATES DISTRICT JUDGE
cc: Counsel of Record
33
96- 92