IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO. SC03-409 YARDARM RESTAURANT, INC., Petitioner, vs. THE CITY OF POMPANO BEACH, Respondent. On Petition For Discretionary Review From The Fourth District Court Of Appeal RESPONDENT S AMENDED RESPONSIVE BRIEF ON JURISDICTION GREENBERG TRAURIG, P.A. 401 East Las Olas Boulevard Suite 2000 Fort Lauderdale, FL 33301 Telephone: 954/765-0500 Facsimile: 954/765-1477 HENRY LATIMER Florida Bar No. 163217 CARAN ROTHCHILD

Florida Bar No. 983535 2

PREFACE For purposes of this appeal and for economy, the following definitions are used: 1. the City Respondent, City of Pompano Beach (Defendant/Appellant below). 2. Yardarm Petitioner, Yardarm Restaurant, Inc. (Plaintiff/Appellee below). 3. Yardarm I 641 So. 2d 1377 (Fla. 4 th DCA 1994), review denied, 651 So. 2d 1197 (Fla. 1995), and, cert. denied, 515 U.S. 1144 (1995) (dispositive of the 1991 Trial). 4. Yardarm II 834 So. 2d 861 (Fla. 4 th DCA 2002) (dispositive of the 1998 Trial). i

TABLE OF CONTENTS PREFACE...i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES...iii STATEMENT OF THE CASE AND OF THE FACTS... 1 Nature of the Case... 1 Course of Proceedings... 1 Disposition in the Lower Tribunal... 2 SUMMARY OF ARGUMENT... 3 ARGUMENT... 3 I. YARDARM II DOES NOT PRESENT GROUNDS FOR EXERCISING DISCRETIONARY CONFLICT JURISDICTION.... 3 A. Jurisdiction Does Not Exist... 4 B. Discretion Does Not Exist... 5 C. The Result Reached Is Fair And Correct... 6 II. YARDARM II DOES NOT PRESENT GROUNDS FOR EXERCISING DISCRETIONARY CONSTRUCTION JURISDICTION.... 7 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 12 ii

TABLE OF AUTHORITIES CASES Ammons v. Okeechobee Cnty., 710 So. 2d 641 (Fla. 4 th DCA 1998)... 7 Boatman v. Town of Oakland, 76 F.3d 341 (11 th Cir. 1996)... 7 Bowman v. Alabama Dep t of Human Resources, 857 F. Supp. 1524 (M.D. Ala. 1994)... 7 City of Edgewater v. Montesano, 477 So. 2d 54 (Fla. 5 th DCA 1985)... 4 City of Pompano Beach v. Yardarm Restaurant, Inc., (Yardarm I), 641 So. 2d 1377 (Fla. 4 th DCA 1994), review denied, 651 So. 2d 1197 (Fla. 1995) and, cert. denied, 515 U.S. 1144 (1995).... 1, 10 City of Pompano Beach v. Yardarm Restaurant, Inc., (Yardarm II), 834 So. 2d 861 (Fla. 4 th DCA 2002)... 3, 4, 5, 6, 7, 8, 9, 10 Crymes v. Dekalb Cnty., Georgia, 923 F.2d 1482 (11th Cir. 1991)... 7 Dykman v. State, 294 So. 2d 633 (Fla. 1974)... 8 Jacobi v. City of Miami Beach, 678 So. 2d 1365 (Fla. 3d DCA 1996)... 7 Kantner v. Martin Cnty., 929 F. Supp. 1482 (S.D. Fla. 1996), aff d, 142 F.3d 1283 (11 th Cir. 1998)... 7 Mandelstam v. City of South Miami, 685 So. 2d 868 (Fla. 3d DCA 1996)... 7 iii

McKinney v. Pate, 20 F.3d 1550 (11 th Cir. 1994) (en banc), cert. denied, 513 U.S. 1110 (1995)... 2, 4, 7 Moldin v. City of Miami Beach, 201 So. 2d 70 (Fla.), quashed on other grounds by 205 So. 2d 295 (Fla. 1967)... 7 North Florida Educ. Dev. Corp. v. Woodham, 942 F. Supp. 542 (N.D. Fla. 1996)... 7 Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973)... 8 Paedae v. Escambia Cnty., 709 So. 2d 575 (Fla. 1 st DCA 1998)... 7 Raben-Pastal v. City of Coconut Creek, 513 So. 2d 298 (Fla. 1990)... 4, 5 Reserve, Ltd. v. Town of Longboat Key, 933 F. Supp. 1040 (M.D. Fla. 1996)... 7 Rojas v. State, 288 So. 2d 234 (Fla. 1973), cert. denied, 419 U.S. 851 (1974)... 8, 9 Shows v. Morgan, 40 F. Supp. 2d 1345 (M.D. Ala. 1999)... 7 State v. Lyons, 293 So. 2d 391 (Fla. 2d DCA 1974)... 9 Sullivan Properties, Inc. v. The City of Winter Springs, 899 F. Supp. 587 (M.D. Fla. 1995)... 7 The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)... 3, 5 iv

Wainright v. Taylor, 476 So. 2d 669 (Fla. 1985)... 6 Williams v. Goldsmith, 905 F. Supp. 996 (M.D. Ala. 1995)... 7 Wohl v. City of Hollywood, 915 F. Supp. 339 (S.D. Fla. 1995)... 7 CONSTITUTIONAL PROVISIONS U.S. CONST. amend. V... 1 U.S. CONST. amend. XIV... 1 Art. V, 3(b)(3), FLA. CONST. (1980)... 3, 7 STATUTES AND RULES 42 U.S.C. 1983... 1, 4, 5, 10 Fla. R. App. P. 9.030(a)(2)(A)(ii)... 7 Fla. R. App. P. 9.030(a)(2)(A)(iv)... 3 OTHER Gerald Kogan & Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 NOVA L. REV. 1151, 1227 (1994)... 4 v

STATEMENT OF THE CASE AND OF THE FACTS Nature of the Case: In 1987, Yardarm filed a two count Complaint alleging that the City had taken its property, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and the Florida Constitution, and 42 U.S.C. 1983. Both counts alleged that, starting in 1973, the City took Yardarm s property by engaging in obstructionist tactics of Yardarm s proposed hotel projects with respect to issuance and revocation of building permits. Course of Proceedings: In 1990, the lower court granted partial summary judgment in favor of the City on Yardarm s federal takings claims, agreeing that Yardarm could not pursue its federal taking claims until it had exhausted its state taking claim, i.e., its inverse condemnation claim. Trial on Yardarm s state law taking claim occurred in 1991 (the 1991 Trial ). The City defended Yardarm s claims by introducing evidence that Yardarm had a building permit in place from July, 1981 to May, 1985, Yardarm s inability to obtain financing was due to causes unrelated to the City s earlier alleged actions, and Yardarm ultimately lost its property not because of the City, but because it had mortgaged the East Side to buy the West Side. (A. at 862). The lower court in the 1991 Trial found that the City had effected a permanent taking. (A. at 862). However, in 1994, the Fourth District reversed, holding in Yardarm I that: (1) the facts did not support a taking claim because Yardarm had not 1

been deprived of substantially all use of its property; (2) the lower court s findings suggesting that harassment had continued after 1981 were unsupported by the record; and (3) the statute of limitations had run on any taking claim because there was no record evidence that would support a finding that there was a taking by the City after September 15, 1983. (A. at 862). Afterward, Yardarm sought review from this Court and the United States Supreme Court, which requests were denied. 651 So. 2d 1197 (Fla. 1995); 515 U.S. 1144 (1995). The case was then remanded for reconsideration of the summary disposition of the purported substantive due process claim, however, the Fourth District expressly declined to rule on the merits of any such claim. (A. at 862). Disposition in the Lower Tribunal: Thereafter, the lower court reinstated Yardarm s Complaint as a substantive due process claim, and the case proceeded to a bifurcated trial on liability (the 1998 Trial ). (A. at 862). In February 1999, the lower court entered Yardarm s proposed Judgment, and the City appealed. (A. at 862). The resulting decision by the Fourth District (A. at 870) held that: [(1)] Yardarm may not recover for damages under its federal substantive due process claim that the City denied or delayed its building permits for improper reasons[,] [because] [a]pplying McKinney to the facts of this case, we conclude as a matter of law, that the developer had no cognizable substantive due process claim because its property interest in the building permits was created by state law, not the Constitution, and both the issuance and revocation of the building permits constituted executive and not legislative acts. [(2)] Further Yardarm received such procedural due process as was due. Accordingly, we reverse the 2

Judgment Determining Liability in its entirety. 3

SUMMARY OF ARGUMENT No grounds exist for the exercise of discretionary jurisdiction by this Court over the decision at issue, Yardarm II. Accordingly, Yardarm s petition for review of Yardarm II should be dismissed. ARGUMENT I. YARDARM II DOES NOT PRESENT GROUNDS FOR EXERCISING DISCRETIONARY CONFLICT JURISDICTION. First Yardarm is seeking this Court s exercise of discretionary jurisdiction under Art. V, 3(b)(3), FLA. CONST. (1980), or what is commonly called conflict jurisdiction. The Florida Star v. B.J.F., 530 So. 2d 286, 287 n.1 (Fla. 1988); Fla. R. App. P. 9.030(a)(2)(A)(iv). However, the pertinent language of 3(b)(3), leaves no room for doubt -- this Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. Id. In order to come within the ambit of this Court s conflict jurisdiction, several threshold requirements must be met, and the conflict, if any, must appear within the four corners of the majority decision brought for review. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Then, within the constraints of the four-corners of the decision, review will be permitted only if the following questions are all answered in the affirmative: (a) does jurisdiction actually exist?; (b) does discretion exist?; and (c) 4

is the case significant enough to be heard? Kogan & Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 NOVA L. REV. 1151, 1227 (1994). In the instant case, Yardarm fails to establish even one of these elements. Therefore, Yardarm s petition should be dismissed. A. Jurisdiction Does Not Exist. First, jurisdiction does not exist because the decision sought to be reviewed here, Yardarm II, and specifically, the Fourth District s holding that Yardarm may not recover for damages under its federal substantive due process claim that the City denied or delay its building permits for improper reasons[,] [because] [a]pplying McKinney to the facts of this case, we conclude as a matter of law, that the developer had no cognizable substantive due process claim because its property interest in the building permits was created by state law, not the Constitution, and both the issuance and revocation of the building permits constituted executive and not legislative acts[,] does not conflict with any Florida decision, let alone the two cited by Yardarm, Raben-Pastal v. City of Coconut Creek, 513 So. 2d 298 (Fla. 1990), and City of Edgewater v. Montesano, 477 So. 2d 54 (Fla. 5 th DCA 1985).1 As has been the case throughout these proceedings, Yardarm has confused the required substantive due process analysis under McKinney, with the state actor analysis inherent in all 1983 claims, to erroneously argue that Yardarm II conflicts with the Raben-Pastal and Montesano decisions. Yardarm is incorrect. 1 Moreover, both cases predate McKinney v. Pate, 20 F.3d 1550 (11 th Cir. 1994). 5

Importantly, neither the Raben-Pastal decision nor the Montesano decision addressed any substantive due process issues or spoke to the requisite two-step test wherein the court must determine: (1) if the plaintiff holds a federally protected property interest or right; and (2) if such a right exists, whether the legislative action taken by the government was irrational, arbitrary, or capricious, and thus constitutes a wrongful deprivation of that right. Instead, this Court in Raben-Pastal, and the Fifth District in Montesano, dealt solely with the issue of whether there could be municipal liability at all under 42 U.S.C. 1983, which in the instant case was yet another fatal hurdle Yardarm was unable to overcome.2 Thus, since there is no conflict here between Yardarm II and either the Raben- Pastal or Montesano decisions on any substantive due process issue, this Court lacks conflict jurisdiction over Yardarm II and Yardarm s petition should be dismissed. B. Discretion Does Not Exist. Second, assuming, arguendo, that Yardarm were able to overcome the first jurisdictional deficiency, this Court still lacks discretion to hear this petition. The problem of conflict is said to involve a constitutional limit on the Court s discretion to hear a case. The Florida Star, 530 So. 2 Similarly, the Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000), case cited by Yardarm (Brief, at p. 8 n.1), dealt solely with municipal liability under 1983, and not whether the plaintiff held a federally protected property interest or right. Blanche Road Corp. v. Bansalem Township, 57 F.3d 253 (3d Cir. 1995), and Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), both cited by Yardarm (Brief, at p. 8 n.1) are equally distinguishable and inapposite. 6

2d at 288-89. If there is no conflict, then there is no discretion, and the petition for review must be dismissed or denied on that ground. Id. Here, because there is no conflict appearing on the face of Yardarm II (because the Fourth District s holding in Yardarm II, that Yardarm has no federally protected right to a building permit, is entirely consistent with well settled Florida law), this Court lacks discretion to review this case and Yardarm s petition fails. C. The Result Reached Is Fair And Correct. Finally, were Yardarm able to establish the first two prerequisites, which it cannot, dismissal would still be appropriate as the result reached in Yardarm II was fair and correct. The final element necessary for review of a purported conflict case is a showing that the issues are significant enough for this Court to exercise its discretion. Since conflict jurisdiction is discretionary, even if discretion exists this Court is free to deny the petition if the issue seems unimportant, or if the result is essentially fair and correct. See Wainright v. Taylor, 476 So. 2d 669, 670-71 (Fla. 1985). Here, the result reached by the Fourth District is absolutely fair and correct. First, as to fairness, the Fourth District specifically held that: the record does not show that the Commission adopted any official policy, custom, rule, resolution, or ordinance opposing Yardarm or made a final vote on any permit, site plan, or variance concerning the Yardarm property. In fact, the only land-use decision which the City Commission ever made as a body with respect to Yardarm s project was the granting of the special exception, which made the project possible. 7

Thus, it is entirely fair for the judiciary to refuse to shift responsibility for one party s (i.e. Yardarm s) own poor choices, failures, and bad fortune, onto the shoulders of an unpopular, but blameless other (i.e. the City). Second, as to correctness, the Yardarm II decision is directly in line and consistent with both Florida s and the Eleventh Circuit s jurisprudence regarding the Fourteenth Amendment s Substantive Due Process Clause.3 Consequently, Yardarm cannot meet any of the absolute prerequisites for conflict jurisdiction, and its petition should be dismissed. II. YARDARM II DOES NOT PRESENT GROUNDS FOR EXERCISING DISCRETIONARY CONSTRUCTION JURISDICTION. Yardarm is also seeking this Court s exercise of discretionary construction jurisdiction under Art. V, 3(b)(3), FLA. CONST. (1980); Fla. R. App. P. 3 See, e.g., Ammons v. Okeechobee Cnty., 710 So. 2d 641 (Fla. 4th DCA 1998); Paedae v. Escambia Cnty., 709 So. 2d 575 (Fla. 1st DCA 1998); Jacobi v. City of Miami Beach, 678 So. 2d 1365 (Fla. 3d DCA 1996); Mandelstam v. City of South Miami, 685 So. 2d 868 (Fla. 3d DCA 1996); Moldin v. City of Miami Beach, 201 So. 2d 70, 73 (Fla. 1967); Shows v. Morgan, 40 F. Supp. 2d 1345 (M.D. Ala. 1999); Reserve, Ltd. v. Town of Longboat Key, 933 F. Supp. 1040 (M.D. Fla. 1996); Kantner v. Martin Cnty., 929 F. Supp. 1482 (S.D. Fla. 1996); Boatman v. Town of Oakland, 76 F.3d 341 (11th Cir. 1996); North Florida Educ. Dev. Corp. v. Woodham, 942 F. Supp. 542 (N.D. Fla. 1996); Sullivan Properties v. City of Winter Springs, 899 F. Supp. 587 (M.D. Fla. 1995); Wohl v. City of Hollywood, 915 F. Supp. 339 (S.D. Fla. 1995); Williams v. Goldsmith, 905 F. Supp. 996 (M.D. Ala. 1995); McKinney, 20 F.3d 1550; Bowman v. Alabama Dep t of Human Resources, 857 F. Supp. 1524 (M.D. Ala. 1994); Crymes v. Dekalb Cnty., 923 F.2d 1482 (11th Cir. 1991). 8

9.030(a)(2)(A)(ii), which states that the discretionary jurisdiction may be sought to review [] decisions of district courts that expressly construe a provision of the state or federal constitution. For jurisdiction to exist, however, the district court s opinion must explain or amplify some identifiable constitutional provision in a way that is an evolutionary development in the law or that expresses doubt about some legal point. Ogle v. Pepin, 273 So. 2d 391, 392 (Fla. 1973); Dykman v. State, 294 So. 2d 633, 634-35 (Fla. 1974); Rojas v. State, 288 So. 2d 234, 236 (Fla. 1973), cert. denied, 419 U.S. 851 (1974). In the instant case, Yardarm II does not explain or amplify any constitutional provision, let alone in a way that is an evolutionary development in the law or that expresses doubt about some legal point. As a result, Yardarm s petition fails. For instance, Yardarm II does not explain or amplify the Substantive Due Process clause, but rather merely applies Florida and Eleventh Circuit jurisprudence4 to the facts of this case to correctly hold (A. at 870) that Yardarm may not recover for damages under its federal substantive due process claim [because] as a matter of law, [] the developer had no cognizable substantive due process claim because its property interest in the building permits was created by state law, not the Constitution, and both the issuance and revocation of the building permits constituted executive and not legislative acts. Thus, where, as here, the district court merely Applied the provisions of the 4 See n. 3 supra. 9

Fourteenth Amendment to the facts it determined existed in the instant case no jurisdiction exists. Rojas, 288 So. 2d at 236.5 This Court s Carmazi opinion is instructive here. In Carmazi, this Court held that where a property owners action was determined adversely to them upon a finding that the property owners did not have a property right that was being invaded, the lower court did not construe a constitutional provision with respect to whether private property was taken without just compensation, and the Supreme Court did not have jurisdiction. 104 So. 2d 727, 728-29 (Fla. 1958). Similarly, Yardarm II does not explain or amplify the Fourteenth Amendment s Procedural Due Process clause, but instead merely applied it to the facts in the record to conclude (A. at 866) that: Yardarm has not shown any procedural due process violations[,] [because] [w]ith respect to actions taken by the Building Official on Yardarm s building permit applications, Yardarm was afforded, and actually utilized, full judicial procedures to challenge these administrative decisions[;] [and] [w]ith respect to the City s attempts to repeal Yardarm s special use exception, Yardarm could and did seek an injunction in the circuit court. Moreover, since the ordinance to repeal the special exception was never actually enacted, Yardarm s special exception was never repealed. Hence, assuming, for the sake of argument, that Yardarm had an interest in the special exception, it was 5 This Court has previously held that Applying is not synonymous with Construing; the former is NOT a basis for our jurisdiction, while the Express construction of a constitutional provision is. Id.; see also State v. Lyons, 293 So. 2d 391, 392-93 (Fla. 2d DCA 1974) (finding that [t]here is a difference between Construing a constitutional provision and the Application of settled principle to the case at hand. ). 10

never deprived of it. Thus again, since merely applying the provisions of the Fourteenth Amendment to the facts the court determined existed in the instant case does not constitute the requisite express construction necessary for jurisdiction to exist, Rojas, 288 So. 2d at 236, Yardarm s petition should be dismissed. Finally, Yardarm II does not explain or amplify the Fifth Amendment s takings clause in any way whatsoever, but rather therein the district court held that its prior appellate adjudication on Yardarm s state law takings claim in Yardarm I was in addition to being the law of the case with respect to the state law takings claim, was issue preclusion, or res judicata, on Yardarm s federal takings claim under the United States Constitution and 1983. Because this claim is identical to the state claim previously adjudicated by this court, the trial court erred in concluding that a taking had occurred.6 Consequently, since Yardarm II does not explain or amplify any constitutional provision, let alone in a way that is an evolutionary development in the law or that expresses doubt about some legal point, Yardarm s petition should be dismissed. 6 Moreover, Yardarm II cannot be used to obtain belated review of Yardarm I. Yardarm is seeking indirectly what it could not get directly, this Court's review of the previous Fourth District opinion, Yardarm I. Eight years ago, Yardarm sought review from this Court of Yardarm I, but its petition was dismissed for lack of jurisdiction. 651 So. 2d 1197 (Fla. 1995). Yardarm is attempting to get a second bite at the apple, and is thereby requesting that this Court perform the impossible task of second guessing the original panel's decision denying jurisdiction of Yardarm I. Such is inappropriate and should not be condoned by this Court. 11

CONCLUSION WHEREFORE, based on the foregoing, Respondent, the City of Pompano Beach, respectfully requests this Court s entry of an order: (1) finding that grounds for justifying the exercise of discretionary jurisdiction do not exist; (2) dismissing this Yardarm s petition; (3) awarding the City its costs and attorneys fees; and (4) granting the City such other relief as this Court deems just and proper. Respectfully submitted this day of April, 2003. GREENBERG TRAURIG, P.A. Counsel for Respondent, The City of Pompano Beach 401 East Las Olas Boulevard Suite 2000 Fort Lauderdale, Florida 33301 Telephone: (954) 765-0500 Facsimile: (954) 765-1477 By HENRY LATIMER Florida Bar No. 163217 CARAN ROTHCHILD Florida Bar No. 983535 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered via regular U.S. Mail to Margaret L. Cooper, Esq., Jones, Foster, Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33402; 12

Randolph W. Adams, Esq., 150 S.E. 12 th Street, Suite 400, Fort Lauderdale, FL 33316; and Jane Kreusler-Walsh, Esq., 501 South Flagler Drive, Suite 503, West Palm Beach, FL 33402, this day of April, 2003. CARAN ROTHCHILD 13

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing is in compliance with this Court s font requirements and is in Times New Roman 14 point. CARAN ROTHCHILD 14