11th Circuit Implies Five Minute Time Limitation Inadequate Due Process

The 11th Circuit Court of U.S. Appeals recently reversed a grant of a motion to dismiss and remanded Kupke v. Orange County, Florida, Case No. 08-10814 finding that the complaint adequately alleged a deprivation of property resulting from state action and that further proceedings were necessary to determine whether post-deprivation due process was meaningful and adequate to allow the property owners an opportunity to recover the property taken without due process due to a 5 minute limitation to present their case at the hearing pre-deprivation.

Keep reading for GZB’s summary of Kupke v. Orange County, Florida, Case No. 08-10814, decided September 8, 2008.

Robert and Anita Kupke were cited for a violation by the Orange County Code Enforcement Board for impermissible outdoor storage of heavy machinery and for maintaining a junkyard.  The Kupkes argued that the heavy machinery were exempt and permissible farm equipment.

At a public hearing on the citation before the Enforcement Board, the Kupkes were only allowed 5 minutes to present their case.  The Enforcement Board issued an order that the Kupkes had violated the local ordinance and gave them 30 days to come into compliance.  After 30 days, the Kupkes would be fined $250 per day until the property was compliant.

The Kupkes appealed the order to the Florida’s Ninth Judicial Circuit.  The trial court denied a stay of the fines, which continued to accrue and ultimately reached $125,000.  A lien was placed on the Kupkes property.  To avoid further fines and foreclosure of the lien, the Kupkes sold all their farm equipment at auction for a loss.  By selling the equipment, the property was brought into compliance . 

Orange County filed an affidavit of compliance with the trial court and agreed to reduce the fines to $2,500, which the Kupkes paid.  The trial court found Orange County’s action to be lawful.  The Kupkes appealed to Florida’s Fifth District Court of Appeals, which found that the Kupkes were deprived property without procedural due process because they were denied a meaningful opportunity to be heard prior to the imposition of the find.  The Fifth District ordered Orange County to conduct a new hearing.  Before Orange County held a new hearing it dismissed the citation against the Kupkes.

The Kupkes then filed suit seeking to recoup the $2,500 fine, the loss they took when they sold the equipment, costs of the auction, and lost farming profits.  The lawsuit was dismissed upon motion for failure to state a claim.

On appeal, the 11th Circuit found that the trial court misconstrued the complaint by focusing on the wrong state action.  The trial court had focused on Orange County’s voluntary dismissal of the citation.  But, the 11th Circuit found that the lawsuit adequately alleged that the initial public hearing was inadquate and that the post-deprivation process was inadquate to afford any remedy to recover the lost property. 

Florida law ordinarily provides for pre-deprivation process, namely notice and a hearing before the Enforcement Board before a citation will issue, with appellate review to follow.  But a meaningful pre-deprivation hearing is precisely what [the Kupkes] were denied here. . . . To be meaningful, a post-deprivation remedy must afford the property owner an opportunity to recover the property taken without due process if the evidence so warrants, and it is not clear from the record . . . that any of the procedures advocated by the County do so.

Orange County had advocated that the Kupkes had adequate post-deprivation due process by some combination of the judicial review of the Enforcement Board order, mandamus, or a new hearing before the Enforcement Board.

Under the facts, the 11th Circuit found that the Kupkes did not have available to them an adequate remedy to recover the wrongfully imposed fines.  The 11th Circuit reversed the dismissal and remanded for further proceedings.

Kupke v. Orange County, Florida, Case No. 08-10814, decided September 8, 2008.

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