By Nathan Hale
Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.
Law360 (July 22, 2020, 8:34 PM EDT) -- Florida's Walton County has urged a federal court to toss a suit brought by a group of property owners including former Arkansas Gov. Mike Huckabee over an ordinance that barred the use of private beaches because of the COVID-19 pandemic, saying the since-rescinded restrictions were constitutional and reasonable.
The county argues in its motion to dismiss, which was filed late Tuesday, that the property owners' requests for declaratory judgments that the county overstepped its authority or was preempted by the state emergency orders should be thrown out as moot since it lifted the restrictions as of May 1.
The county, which is located in Florida's Panhandle, also contends that the ordinance did not amount to a compensable taking or seizure of property by the government and that the property owners were not denied due process by its implementation.
"Given the governor's executive orders and the county's emergency powers under the [State Emergency Management Act], the mere enactment of the ordinance did not [affect] a seizure of plaintiffs' property," the county said. "More importantly, any alleged 'seizure' was reasonable in light of the emergency situation posed by the global COVID-19 pandemic."
The plaintiffs, who all claim their properties extend to the mean high-water line of the Gulf of Mexico and include "dry sand beach," filed suit April 6 in Pensacola. They asked the court to throw out the Walton County Board of County Commissioners' April 2 amendment to an emergency ordinance that extended temporary pandemic restrictions on the use of county beaches to "any person."
In addition to arguing that the amended ordinance conflicted with two executive orders issued by Florida Gov. Ron DeSantis, the property owners also argued that it violated their rights under the Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution, as well as their right to privacy under the Florida Constitution.
But the county argues in its motion to dismiss that the property owners have not plausibly pleaded that the county's actions amounted to a taking claim that can be brought under the Fifth Amendment.
"At most, the amended complaint alleges that the ordinance interfered with their ability to use the beach portion of their property for 29 days and that enforcing agencies encroached on their private beach during that time," the county said. "The ordinance did not authorize third parties to occupy private property, nor otherwise appropriate the property for public use."
If the ordinance is interpreted as having temporarily denied the owners use of the entirety of their properties, the state and local emergency orders, which were attached to the complaint, show that this was done pursuant to the powers conferred to the county through the State Emergency Management Act and triggered by the COVID-19 pandemic, the motion said.
"Even a regulation that temporarily denies an owner all use of their property does not necessarily constitute a taking. '[T]he county might avoid the conclusion that a taking had occurred by establishing that the denial of all use was insulated as a part of the state's authority to enact safety regulations,'" the county argued, quoting from the U.S. Supreme Court's 2002 decision in Tahoe-Sierra Preservation Counsil, Inc. v. Tahoe Planning Agency.
The county also compared the current circumstances to those considered by the U.S. Supreme Court in 1958's United States v. Central Eureka Mining Co., in which the justices found no taking had occurred when the government issued a wartime order requiring non-essential gold mines to shut down to conserve equipment and labor.
"A global pandemic would seem akin to a war in that respect, the county said. "As in Central Eureka Mining Co., the actions of Walton County in restricting the use of all beaches in the county cannot be seen as a taking within this context."
The property owners' due process claims fail, the county argued, because they received all the procedural due process they were entitled to through the county's legislative process, and the county's adoption of the ordinance was supported by the governor's emergency order, which specifically included "beach closures at the discretion of local authorities."
Additionally, the county contended that Supreme Court case law makes clear that the open beach portions of the properties are not covered by Fourth Amendment protections against unreasonable seizure of real property, and nevertheless, the alleged "seizure" was reasonable in light of the pandemic.
Outside counsel for the county on Wednesday said he had no further comment, and a county spokesman said it is county commission practice not to discuss ongoing litigation.
Counsel for the property owners did not immediately respond to a request for comment Wednesday.
The plaintiffs are represented by D. Kent Safriet, Joseph A. Brown, Edward M. Wenger and Kristen C. Diot of Hopping Green & Sams PA.
The county is represented by William G. Warner, Timothy M. Warner and Eric A. Krebs of Warner Law Firm PA.
The case is Dodero et al. v. Walton County et al., case number 3:20-cv-05358, in the U.S. District Court for the Northern District of Florida.
--Additional reporting by Carolina Bolado. Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
See the rest here:
Fla. County Seeks To End Suit Over COVID-19 Beach Closures - Law360
- Fifth Amendment - The Text, Origins, and Meaning of the ... - April 26th, 2014 [April 26th, 2014]
- 5th Amendment - Revolutionary War and Beyond - April 26th, 2014 [April 26th, 2014]
- Fifth Amendment to the United States Constitution ... - April 26th, 2014 [April 26th, 2014]
- Justices suggest public employees' testimony is protected - April 29th, 2014 [April 29th, 2014]
- HST 330 fifth amendment presentation - Video - May 1st, 2014 [May 1st, 2014]
- Police not sure if Sioux City murder suspect invoked 5th Amendment rights - May 3rd, 2014 [May 3rd, 2014]
- Christie Ally Samson Refuses to Give Documents to Lawmakers - May 4th, 2014 [May 4th, 2014]
- House votes to hold ex-IRS official in contempt - May 8th, 2014 [May 8th, 2014]
- House votes to hold ex-IRS official Lois Lerner in contempt of Congress - May 8th, 2014 [May 8th, 2014]
- House holds Lois Lerner in contempt - May 8th, 2014 [May 8th, 2014]
- House votes to hold former IRS official in contempt - May 8th, 2014 [May 8th, 2014]
- Articles about Fifth Amendment - Los Angeles Times - May 9th, 2014 [May 9th, 2014]
- Former PA Chairman Samson Pleads Fifth - Video - May 9th, 2014 [May 9th, 2014]
- GOP-led House votes to hold former IRS official in contempt - May 12th, 2014 [May 12th, 2014]
- No plans to arrest Lois Lerner, John Boehner says - May 13th, 2014 [May 13th, 2014]
- Im not going to testify: Witness pleads Fifth Amendment during Bangor triple murder trial - May 13th, 2014 [May 13th, 2014]
- Attorney: Defense told Corso will take Fifth - May 16th, 2014 [May 16th, 2014]
- Spokane County workers use Fifth Amendment in back-dating case - Thu, 22 May 2014 PST - May 22nd, 2014 [May 22nd, 2014]
- Shawn Vestal: County permit clerical mishap raises eyebrows - Fri, 23 May 2014 PST - May 23rd, 2014 [May 23rd, 2014]
- Sexual abuse measure could lead to wrongful convictions, attorneys say - August 31st, 2014 [August 31st, 2014]
- 5th Amendment - Laws.com - August 31st, 2014 [August 31st, 2014]
- Wildstein takes the 5th - Video - August 31st, 2014 [August 31st, 2014]
- Fifth Amendment (United States Constitution ... - September 2nd, 2014 [September 2nd, 2014]
- New bill a powerful tool to imprison sex offenders - September 3rd, 2014 [September 3rd, 2014]
- Cristin Milioti in The Good Wife - Julianna Margulies - Video - September 4th, 2014 [September 4th, 2014]
- Kansas Supreme Court: Grand jury violated man's Fifth Amendment rights - September 6th, 2014 [September 6th, 2014]
- Attorney Gwendolyn Solomon Petitions United States Supreme Court to Review Tenth Circuits Decision in Case of the IRP6 - September 9th, 2014 [September 9th, 2014]
- Texas man's conviction overturned because of Fifth Amendment violation - September 10th, 2014 [September 10th, 2014]
- Cop Says 'You Must Be Doing Something Wrong if You Invoke Your Rights' (Video) - September 12th, 2014 [September 12th, 2014]
- Public be damned Litchfield latest example - September 14th, 2014 [September 14th, 2014]
- Volokh Conspiracy: What the posse comitatus case might mean for the future of the exclusionary rule - September 15th, 2014 [September 15th, 2014]
- Fifth Amendment - Video - September 15th, 2014 [September 15th, 2014]
- Top 5 Constitution-Related Searches at FindLaw.com - September 19th, 2014 [September 19th, 2014]
- The Fifth Amendment Eminent Domain - Video - September 19th, 2014 [September 19th, 2014]
- Apple And Google Will Force A Legal Battle Over The Privacy Of Your Passcode - September 20th, 2014 [September 20th, 2014]
- Civics- The Fifth Amendment (Sarah Hutchinson) - Video - September 20th, 2014 [September 20th, 2014]
- Google and Apple Wont Unlock Your Phone, But a Court Can Make You Do It - September 22nd, 2014 [September 22nd, 2014]
- GOP fumes over Lerner remarks - September 23rd, 2014 [September 23rd, 2014]
- Assistant to DeKalb CEO Ellis invokes 5th Amendment 30 times - September 23rd, 2014 [September 23rd, 2014]
- GOP fumes as Lois Lerner talks to press but snubs Congress - September 24th, 2014 [September 24th, 2014]
- Cry us a river, Lois Lerner - September 24th, 2014 [September 24th, 2014]
- Can You Go to Jail for Refusing to Testify? - September 25th, 2014 [September 25th, 2014]
- Fifth Amendment Projectb - Video - September 25th, 2014 [September 25th, 2014]
- The Commander Cody Band - Take The Fifth Amendment - 8/5/1977 - Convention Hall (Official) - Video - September 27th, 2014 [September 27th, 2014]
- Joey Gallo Takes The Fifth Amendment - Video - September 29th, 2014 [September 29th, 2014]
- Batavia High School teacher John Dryden retires from school district - October 3rd, 2014 [October 3rd, 2014]
- Batavia High School teacher John Dryden retires - October 4th, 2014 [October 4th, 2014]
- The Fifth Amendment Please Don't Leave Me Now - Video - October 6th, 2014 [October 6th, 2014]
- Man Denied Fifth Amendment While In Court Wearing Anti-Police Shirt, Still Won His Case (Video) - October 7th, 2014 [October 7th, 2014]
- Batavia teacher previously involved in Fifth Amendment dispute retires - October 7th, 2014 [October 7th, 2014]
- INFORMUCATE: THE FIFTH AMENDMENT - Video - October 8th, 2014 [October 8th, 2014]
- Fairholme Funds Appeals Fannie Mae and Freddie Mac Verdict - October 10th, 2014 [October 10th, 2014]
- Fresno Police Officer violated fifth amendment at a dui checkpoint. - Video - October 10th, 2014 [October 10th, 2014]
- Code cases: Police want phone access, but some pass - October 12th, 2014 [October 12th, 2014]
- Fresno Police Officer violated fifth amendment at a dui checkpoint. part 2 - Video - October 12th, 2014 [October 12th, 2014]
- Property Rights | Century Law Group - Video - October 20th, 2014 [October 20th, 2014]
- Agents questioned, Askar takes the Fifth in Trombetta hearing - October 21st, 2014 [October 21st, 2014]
- Scott and Crist have heated and personal final debate before November election - October 22nd, 2014 [October 22nd, 2014]
- Detective dodges questions about allegations made during rape investigation - October 25th, 2014 [October 25th, 2014]
- Disciplinary hearing for SB officer moved to later date - Video - October 27th, 2014 [October 27th, 2014]
- Judge Rules Suspect Can Be Required To Unlock Phone With Fingerprint - October 31st, 2014 [October 31st, 2014]
- Virginia judge: Police can demand a suspect unlock a phone with a fingerprint - October 31st, 2014 [October 31st, 2014]
- Court rules: Touch ID is not protected by the Fifth Amendment but Passcodes are - October 31st, 2014 [October 31st, 2014]
- Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone - November 1st, 2014 [November 1st, 2014]
- Civil Rights and Civil Liberties - Fifth Amendment - Shh! The Right to Remain Silent - Video - November 1st, 2014 [November 1st, 2014]
- Your Fingerprints Belong To Us: Iphone Users Forfeit 5th Amendment - Video - November 2nd, 2014 [November 2nd, 2014]
- All Your Fingerprints Are Belong To Us: iPhone Users Forfeit Fifth Amendment - Video - November 2nd, 2014 [November 2nd, 2014]
- Log into Tax-News+ - November 4th, 2014 [November 4th, 2014]
- Editorial: Applying the Fifth Amendment in the era of smartphones - November 4th, 2014 [November 4th, 2014]
- Volokh Conspiracy: Virginia state trial court ruling on the Fifth Amendment and smart phones - November 4th, 2014 [November 4th, 2014]
- Fingerprints: iPhone Users Forfeit Fifth Amendment. - Video - November 4th, 2014 [November 4th, 2014]
- New ruling may affect police access to smartphones - Video - November 6th, 2014 [November 6th, 2014]
- Why the Constitution Can Protect Passwords But Not Fingerprint Scans - November 7th, 2014 [November 7th, 2014]
- Virginia state trial court ruling on the Fifth Amendment ... - November 7th, 2014 [November 7th, 2014]
- Is taking the fifth amendment a bad idea? - Video - November 7th, 2014 [November 7th, 2014]
- IT Security TV Show 4 November 2014 - iPhone Users Forfeit Fifth Amendment - Video - November 7th, 2014 [November 7th, 2014]
- the fifth amendment happy parody project song for connections - Video - November 8th, 2014 [November 8th, 2014]
- 13-year-olds murder conviction overturned - November 11th, 2014 [November 11th, 2014]
- Your Fifth Amendment Rights DO NOT Cover Biometrics - Video - November 11th, 2014 [November 11th, 2014]
- Philadelphia charter school officials pleaded Fifth 77 times - November 12th, 2014 [November 12th, 2014]