CopyPublished | District Court, S.D. Florida | 2014 WL 1778963, 2014 U.S. Dist. LEXIS 62883
...Listed sailboat has no motor, sails, helm or rudder for propulsion or steering. On May 27, 2010 this officer contacted Mr. James Edward Hoefling Jr on the above listed boat about the condition of his vessel and advised him that it needs to be removed or brought into compliance with the law as per Florida State Statute 823.11....
...d and destroyed his home along with all the rest of his possessions” (id. ¶ 20). According to the SAC, “[t]he two sources of legislative authority for the investigation and destruction of lost, abandoned, or derelict vessels are chapter 705 and section 823.11, Florida Statutes.” (SAC ¶ 25.) “[CJhapter 705 provides that law enforcement shall take lost/abandoned property into custody, if easily removable from the public property ......
...[but] [i]f not easily removable, law enforcement is required to place on the lost or abandoned property, a notice in the form set forth in Florida Statute [section]
705.103(2).” 8 (Id. ¶ 28.) Additionally, “law enforcement personnel are authorized by Florida Statute [section]
823.11 to remove derelict vessels from state waters if that vessel is a hazard to navigation or a threat to the environment.” (Id....
...ummarily destroy private property, which is the exact conduct alleged as the basis for plaintiffs claims.” (Response at 17.) The Court disagrees. As explained in the Court’s Order Granting Defendants’ Motion to Dismiss the FAC: Florida Statute Section
823.11 addresses removal of abandoned and derelict vessels from public waters. The statute makes it “unlawful for any person ... to store, leave, or abandon any derelict vessel as defined in this section in this state.” Fla. Stat. §
823.11 (2). The statute defines a “derelict vessel” as “any vessel, as defined in s.
327.02, that is left, stored, or abandoned ... [i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” Fla. Stat. §
823.11 (l)(a)....
...Gonzalez, “to remove *1237 or cause to be removed any abandoned or derelict vessel from public waters in any instance when the same obstructs or threatens to obstruct navigation or in any way constitutes a danger to the environment.” Fla. Stat. § 823.11 (3)(a)....
...“Abandoned property” means all tangible personal property that does not have an identifiable owner and that has been disposed on public property in a wrecked, inoperative, or partially dismantled condition or has no apparent intrinsic value to the rightful owner. The term includes derelict vessels as defined in s. 823.11(1)....
...g.” (Id.) Officer Macias noted that on May 27, 2010, he contacted Hoefling, spoke with him “about the condition of his vessel,” and “advised him that it needs to be removed or brought into compliance with the law as per Florida State Statute 823.11.” (Id.) Finally, the Incident Report indicated that Hoefling told Officer Macias that “he was going to comply with the law as soon as he was able.” (Id.) Furthermore, on May 27, 2010, Officer Macias left a notice on Hoefling’s sailboat which stated that the vessel was unlawfully on the property. (Compl., D.E. 1, Ex. 3 (Notice).) Nearly three months after Hoefling received notice that his vessel was considered “derelict” and subject to removal pursuant to Florida Statute 823.11, on August 20, 2010 Officer Roque observed the vessel “covered with garbage.” (Am....
...he left a City of Miami Office of Code Enforcement Notice on the vessel and he additionally spoke with Hoefling about the derelict condition of the vessel and told him that the vessel must be brought into compliance or removed under Florida Statute Section 823.11....
...cipality removes and destroys the vessel. See Fla. Stat. §
705.103 (2). Here, Hoefling was provided nearly three months to remove the vessel. Because he failed to do so, Officer Roque, ordered the vessel to be destroyed pursuant to Florida Statutes
823.11 and
705.103(2)....
...alified immunity because he has not shown that Defendants violated his “clearly established” rights.... Plaintiffs only ... argument is that the officers violated his “clearly established” rights because they failed to follow Florida Statute Section
823.11. However, the Court already found that Officer Roque and Sergeant Gonzalez complied with the procedures for derelict vessels and abandoned property as set forth in Florida Statute Sections
823.11 and
705.103....
...Incident Reports. In those Incident Reports, Officer Macias noted on May 27, 2010 that Hoefling’s vessel “is derelict,” and “advised [Hoefling] that it needs to be removed or brought into compliance with the law as per Florida State Statute 823.11.” (Am....
...allegations in the Amended Complaint do not mention “enforcement of the law,” the Incident Reports attached as exhibits to the Amended Complaint show that during all relevant periods, the officers were enforcing the provisions of Florida Statute Section 823.11....
...ction of Plaintiffs home and possession was not unlawful. As previously noted, “the Incident Reports attached as exhibits to the Amended Complaint show that during all relevant periods, the officers were enforcing the provisions of Florida Statute Section
823.11.” Hoefling,
876 F.Supp.2d at 1334....
...g.” (Id.) Officer Macias noted that on May 27, 2010, he contacted Hoefling, spoke with him “about the condition of his vessel,” and “advised him that it needs to be removed or brought into compliance with the law as per Florida State Statute 823.11.” (Id.) Finally, the Incident Report indicated that Hoefling told Officer Macias that “he was going to comply with the law as soon as he was able.” (Id.) Furthermore, on May 27, 2010, Officer Macias left a notice on Hoefling’s sailboat which stated that the vessel was unlawfully on the property. (See Compl., D.E. 1, Ex. 3 (Notice).) Nearly three months after Hoefling received notice that his vessel was considered “der *1245 elict” and subject to removal pursuant to Florida Statute 823.11, on August 20, 2010 Officer Roque observed the vessel “covered with garbage.” (Am....
...he left a City of Miami Office of Code Enforcement Notice on the vessel and he additionally spoke with Hoefling about the derelict condition of the vessel and told him that the vessel must be brought into compliance or removed under Florida Statute Section 823.11....
...cipality removes and destroys the vessel. See Fla. Stat. §
705.103 (2). Here, Hoefling was provided nearly three months to remove the vessel. Because he failed to do so, Officer Roque, ordered the vessel to be destroyed pursuant to Florida Statutes
823.11 and
705.103(2)....
...All Fifth Circuit decisions handed down pri- or to the close of business on September 30, 1981, are binding precedent upon the Eleventh Circuit. Bonner v. Prichard,
661 F.2d 1206, 1207 (11th Cir.1981) (enbanc). . The term "abandoned property” "includes derelict vessels as defined in s.
823.11(1).” Fla....
...to no case from the United States Supreme Court, the Eleventh Circuit Court of Appeals, or the Florida Supreme Court that holds that an officer complying with the procedures for derelict vessels and abandoned property as set forth in Florida Statute
823.11 and/or Florida Statute
705.103 violates a "clearly established” right....
...Accordingly, the Court finds that it would not be clear to a reasonable law enforcement officer that his conduct in complying with the notice requirements as set forth in Florida Statute
705.103 and his conduct in removing a derelict vessel from public waters as set forth in Florida Statute
823.11, as Officer Roque and Sergeant Gonzalez did in this case, was unlawful....
CopyPublished | District Court, S.D. Florida | 2012 U.S. Dist. LEXIS 99281, 2012 WL 2872762
...Listed sailboat has no motor, sails, helm or rudder for propulsion or steering. On May 27, 2010 this officer contacted Mr. James Edward Hoefling Jr on the above listed boat about the condition of his vessel and advised him that it needs to be removed or brought into compliance with the law as per Florida State Statute 823.11....
...Amended Complaint and the City of Miami Office of Code Enforcement Notice attached as Exhibit 3 to the original Complaint show that at all relevant times Officer Roque and Sergeant Gonzalez were carrying out state law as set forth in Florida Statute Section
823.11. (See Am. Compl. Ex. 3 (May 27, 2010 Incident Report).) Florida Statute Section
823.11 addresses removal of abandoned and derelict vessels from public waters. The statute makes it “unlawful for any person ... to store, leave, or abandon any derelict vessel as defined in this section in this state.” Fla. Stat. §
823.11 (2). The statute defines a “derelict vessel” as “any vessel, as defined in s.
327.02, that is left, stored, or abandoned ... [i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” 11 Fla. Stat. §
823.11 (l)(a)....
...rgeant Gonzalez, “to remove or cause to be removed any abandoned or derelict vessel from public waters in any instance when the same obstructs or threatens to obstruct navigation or in any way constitutes a danger to the environment.” Fla. Stat. § 823.11 (3)(a)....
...“Abandoned property” means all tangible personal property that does not have an identifiable owner and that has been disposed on public property in a wrecked, inoperative, or partially dismantled condition or has no apparent intrinsic value to the rightful owner. The term includes derelict vessels as defined in s. 823.11(1)....
...g.” (Id.) Officer Macias noted that on May 27, 2010, he contacted Hoefling, spoke with him “about the condition of his vessel,” and “advised him that it needs to be removed or brought into compliance with the law as per Florida State Statute 823.11.” (Id.) Finally, the Incident Report indicated that Hoefling told Officer Macias that “he was going to comply with the law as soon as he was able.” (Id.) Furthermore, on May 27, 2010, Officer Macias left a notice on Hoefling’s sailboat which stated that the vessel was unlawfully on the property. (See Compl., D.E. 1, Ex. 3 (Notice).) Nearly three months after Hoefling .received notice that his vessel was considered “derelict” and subject to removal pursuant to Florida Statute 823.11, on August 20, 2010 Officer Roque observed the vessel “covered with garbage.” (Am....
...he left a City of Miami Office of Code Enforcement Notice on the vessel and he additionally spoke with Hoefling about the derelict condition of the vessel and told him that the vessel must be brought into compliance or removed under Florida Statute Section 823.11....
...cipality removes and destroys the vessel. See Fla. Stat. §
705.103 (2). Here, Hoefling was provided nearly three months to remove the vessel. Because he failed to do so, Officer Roque, ordered the vessel to be destroyed pursuant to Florida Statutes
823.11 and
705.103(2)....
...Plaintiff has cited to no case from the United States Supreme Court, the Eleventh Circuit Court of Appeals, or the Florida Supreme Court that holds that an officer complying with the procedures for derelict vessels and abandoned property as set forth in Florida Statute
823.11 and/or Florida Statute
705.103 violates a *1331 “clearly established” right....
...Accordingly, the Court finds that it would not be clear to a reasonable law enforcement officer that his conduct in complying with the notice requirements as set forth in Florida Statute
705.103 and his conduct in removing a derelict vessel from public waters as set forth in Florida Statute
823.11, as Officer Roque and Sergeant Gonzalez did in this case, was unlawful....
...1551 , which, because it is a district court case, cannot “clearly establish” constitutional rights; see supra n. 9. Plaintiffs only other argument is that the officers violated his “clearly established” rights because they failed to follow Florida Statute Section
823.11. However, the Court already found that Officer Roque and Sergeant Gonzalez complied with the procedures for derelict vessels and abandoned property as set forth in Florida Statute Sections
823.11 and
705.103....
...Incident Reports. In those Incident Reports, Officer Macias noted on May 27, 2010 that Hoefling’s vessel “is derelict,” and “advised [Hoefling] that it needs to be removed or brought into compliance with the law as per Florida State Statute 823.11.” (Am....
...allegations in the Amended Complaint do not mention “enforcement of the law,” the Incident Reports attached as exhibits to the Amended Complaint show that during all relevant periods, the officers were enforcing the provisions of Florida Statute Section 823.11....
...he enforcement of the penal, criminal, traffic, or highway laws of the state.” Fla. Stat. §
943.10 (a). Neither party disputes that Officer Roque and Sergeant Gonzalez both fall within category of "law enforcement officer” under Florida Statute §
823.11(3)(a)....
