Munzel v. Hillsborough County

TAMPA DIVISION

CLYDE W. MUNZEL, as Trustee of the

CLYDE W. MUNZEL REVOCABLE

TRUST, under agreement dated May 3, 2005,

Plaintiff,

v. CASE NO. 8:21-cv-2185-WFJ-AAS

HILLSBOROUGH COUNTY and

CARMINE PISANO,

Defendants.

_____________________________________/

ORDER

Before the Court is Defendant Hillsborough County’s motion to dismiss Counts I, II, III,

and V and to strike Count VI of the amended complaint (Dkt. 26), Defendant Officer Carmine

Pisano’s motion to dismiss with prejudice Count IV of the amended complaint (Dkt. 27), and

Plaintiff’s memorandum in opposition (Dkt. 31). After careful consideration of the allegations

of the amended complaint (Dkt. 23), the submissions of the parties, and the applicable law, the

Court concludes that the amended complaint as to the County should be dismissed with leave to

amend consistent with this order. Count VI should not be stricken. The sole count against

Officer Pisano should be dismissed with prejudice on the basis of qualified immunity.

PERTINENT ALLEGATIONS

Accepting all factual, not conclusory, allegations of the amended complaint as true and

construing them in the light most favorable to the plaintiff, see Pielage v. McConnell, 516 F.3d

in September 2017.

The Property

Plaintiff owns a vacant gas station and convenience store in Ruskin, Florida. Dkt. 23 ¶¶

9–10. Plaintiff alleges it “sits near the busy intersection of U.S. 41 and 4th Ave. SW in

southern Hillsborough County.” Dkt. 23 ¶ 10. The steel canopy stood twenty feet high and

“was rectangular in shape, measuring approximately sixty feet long by forty feet wide.” Dkt. 23

¶ 14. Two steel columns anchored the canopy, bolted five feet underground in concrete

footings. Id.

Plaintiff had made substantial improvements on the property and was finalizing lease

negotiations with a potential tenant in September 2017. Dkt. 23 ¶ 11–13, 15. On September 11,

2017, Hurricane Irma caused the steel canopy over the gas pumps to topple and rest on one of

its four corners. Dkt. 23 ¶¶ 14, 20–21. The storm left the canopy “on Plaintiff’s property with

no part touching the sidewalk or street.” Dkt. 23 ¶24. The following photographs are a part of

the record. Dkt. 18-1; Dkt. 22 at 3 n.1 & Appendix 1.

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The County began the process of seeking an emergency abatement on September 14,

2017. Dkt. 23 ¶ 39–40. The immediate abatement process applies to an “imminent health

threat” as defined in the Hillsborough County Code of Ordinances, which codifies Ordinance

12-7 at section 8-180. Dkt. 23 ¶¶ 29–30, 41. Plaintiff acknowledges that “[i]n a case involving

a public nuisance which is also determined by the Code Enforcement Department Director to be

an imminent health threat, the Code Enforcement Department may immediately, and without

prior notice to the property owner, terminate and abate the condition. Code Sec. 8-180(a).”

Dkt. 23 ¶ 33. Should an immediate abatement action occur, the “Code Enforcement Director

shall serve a notice of abatement and costs on the property owner. Code Sec. 8-180(b).” Dkt.

23 ¶ 34. The notice should set a hearing in front of the Code Enforcement Department or a

special master to challenge the Department’s determination that an imminent health threat

exists. Dkt. 23 ¶ 34 (citing Code Sec. 8-180(d)). Plaintiff alleges “the County never served a

notice of abatement and costs on Plaintiff advising him of his right to request a hearing to

challenge the Code Enforcement Department’s determination of the existence of an imminent

health threat.” Dkt. 23 ¶ 69.

Plaintiff pleads that the fallen canopy was not a public nuisance—an imminent health

threat warranting immediate, emergency abatement without notice. Plaintiff alleges that a

pattern or practice of pursuing immediate abatement actions without prior notice is “evidenced

by the fact that, in the County’s 2019 fiscal year, it conducted 81 emergency abatement actions

Dkt. 23 ¶ 37.

Code Enforcement Personnel

Plaintiff alleges the County Enforcement Code requires that either the director of the

Code Enforcement Department or authorized designee determine whether the circumstances

represent an imminent risk of injury. Dkt. 23 ¶¶ 30–31 (citing Code Sec. 8-172). Plaintiff

further alleges that Code Enforcement Officer Carmine Pisano was neither the director nor an

authorized designee. Dkt. 23 ¶¶ 42–43. Nevertheless, Officer Pisano authorized an immediate

abatement (demolition and removal of canopy) on Plaintiff’s property without prior notice.

Dkt. 23 ¶¶ 40–41, 44–45, 52. In the alternative, Plaintiff alleges that if Officer Pisano was the

director or authorized designee, the officer’s actions represented either the execution of a

codified policy or custom of the County or established a policy or custom of the County to

declare imminent injury without an opportunity for Plaintiff to seek administrative review. Dkt.

23 ¶¶ 46–47.

Despite Officer Pisano’s decision, Plaintiff alleges that Area Code Enforcement

Supervisor David Cansler had visited the property earlier and determined that the canopy did

not present a public nuisance or imminent health threat. Dkt. 23 ¶¶ 48–51. Nevertheless, Area

Code Enforcement Supervisor James Karr approved the emergency abatement on September 14

and arrived at the property to implement the emergency abatement. Dkt. 23 ¶¶ 40, 53, 57.

According to Plaintiff, Supervisor Karr informed Plaintiff that Officer Pisano’s “boss” had

approved the immediate abatement. Dkt. 23 ¶ 55.

That same day, September 14, the County’s Rapid Response Team demolished the

canopy and left behind the debris—“a heaping pile of twisted steel scrap,” which Plaintiff

alleges was caused by “negligent demolition work.” Dkt. 23 ¶¶ 57–60. On September 19,

2017, the County advised Plaintiff of a hearing on an emergency abatement to be held the next

day. Dkt. 23 ¶¶ 63–64. The hearing was held September 20, 2017, which Plaintiff and his

counsel attended. Dkt. 23 ¶ 67. The special master found the debris “created and left” by the

County constituted a public nuisance and ordered Plaintiff to remove it within 48 hours. Dkt.

23 ¶ 67. Plaintiff complied. Dkt. 23 ¶ 68. Based on these facts, Plaintiff alleges the County

never afforded him “any opportunity to be heard on the Code Enforcement Department’s

determination that an imminent health threat existed on the property on September 14, 2017.”

Dkt. 23 ¶ 71.

Claims for Relief

The amended complaint alleges three counts against the County based on federal law: (1)

in Count I, a categorical (as opposed to regulatory) taking violative of 42 U.S.C. § 1983 and the

Fifth and Fourteenth Amendments for which Plaintiff demands just compensation for damages

to the steel canopy, gas pumps, and convenience store; (2) in Count II, a per se violation of

procedural due process based on the ordinance’s failure to adequately provide pre-deprivation

process; and (3) in Count III, an “as applied” violation of procedural due process based on a

constitutionally inadequate process for pre- and post-deprivation as to Plaintiff’s property. Two

counts seek damages against the County under state law—inverse condemnation (Count V) and

for a violation of federal procedural due process under 42 U.S.C. § 1983 and the Fifth and

Fourteenth Amendments based on the absence of pre-deprivation notice and the clearly

established law that no reasonable person would judge that the tipped canopy was an imminent

risk of causing injury.

DISCUSSION

The relevant allegations will be addressed as to each count below. The overarching issue,

as urged by Plaintiff, is whether Plaintiff has alleged a plausible claim for failure to give pre-

deprivation notice to remove a fallen steel canopy on his vacant gas station and convenience

store. Stated differently, are there sufficient facts pled to support the allegation that “no

reasonable person” would find the tipped canopy an imminent risk of causing injury? Plaintiff

also contends that at the post-deprivation hearing, only the heap of steel created by the County

was determined to be a nuisance—whether the toppled canopy was a nuisance in its state on

September 14 was never addressed at the hearing. Plaintiff also cites to the number of

emergency abatements conducted by the County in the fiscal year 2019 to support a policy or

practice claim.

Counts I and V (Takings and Inverse Condemnation against County)

As acknowledged by the County, the Plaintiff’s focus or theory of the case now is

different in the amended complaint—he now asserts that a categorical, not a regulatory, taking

occurred. Dkt. 26 at 4. He alleged a regulatory taking in the original complaint.

physical invasion of private property.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537

(2005); Serpentfoot v. Rome City Comm’n, 322 F. App’x 801, 805 (11th Cir. 2009). The

Supreme Court cases “have stressed the ‘longstanding distinction’ between government

acquisition of property and regulations.” Horne v. Dep’t of Agriculture, 576 U.S. 350, 361

(2015) (citing Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S.

302, 323 (2002)).

By abandoning a regulatory takings claim, Plaintiff is no longer required to establish he

suffered the loss of all economically valuable uses of his property. Tahoe-Sierra, 535 U.S. at

322 (“When the government physically takes possession of an interest in property for some

public purpose, it has a categorical duty to compensate the former owner regardless of the

whether the interest that is taken constitutes an entire parcel or merely a part thereof.”) (citation

omitted). Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2894 (1992), which this

Court discussed in its prior order dismissing the initial complaint, involved a regulatory taking,

and it is “inappropriate to treat cases involving physical takings as controlling precedents for the

evaluation of a claim that there has been a ‘regulatory taking,’ and vice versa.” Horne, 576

U.S. at 361 (quoting Tahoe-Sierra, 535 U.S. at 323). Count I’s sufficiency will be determined

on the controlling case law concerning physical takings claims.

Plaintiff maintains that the absence of an “imminent threat” to the community at the time

of the canopy demolition sets the foundation for a categorical taking.1 Dkt. 31 at 4 (citing Dkt.

1 In is order dismissing the initial complaint, this Court noted: “Plaintiff does not plead that the County’s actions

amounted to a categorical taking, as nowhere in his complaint does he allege that the County took the canopy

September 14. Yet, the photographs are a part of this record. Dkt. 18-1; Dkt. 22 at 3 n.1 &

Appendix 1. It is difficult to imagine that a reasonable person would not find the large, toppled

canopy in the photographs an imminent threat of harm to passersby, especially in the middle of

Florida hurricane season. Indeed, Plaintiff alleges the vacant gas station and convenience store

are located at a busy intersection. Dkt. 23 ¶ 10. The rusting and bent, large canopy sat askew

and directly over the fuel pumps. None of the factual allegations support the conclusory

allegation that “no reasonable person” could find the canopy in its state on September 14 was a

nuisance.2

Plaintiff’s citation to Crosson is unpersuasive. Dkt. 31 at 5 (citing Crosson v. Carrollton

City Sch. Dist., 478 F. Supp. 3d 1255 (N.D. Ga. 2020)). The court in Crosson denied a motion

to dismiss the Fifth Amendment Takings Clause claim because the plaintiff pled permanent

noise, light, and visual nuisances caused by a public high school’s removal of a tree barrier.

Crosson simply stands for the proposition that in non-regulatory, physical takings cases, the

plaintiff need not allege complete deprivation of use. 478 F. Supp. 3d at 1269 (“Because [the

plaintiff] relies on the physical invasion prong of the Supreme Court’s takings jurisprudence

rather than the regulatory taking prong, she need not allege complete deprivation of use.”).

for public use.” Although the amended complaint adds the words “for public use” (Dkt. 23 ¶¶ 81, 131), this

phrase does not magically transform Counts I and V into plausible claims.

2 The Court need not address whether the exercises of “police power” may ever give rise to a takings claim.

Dkt. 31 at 5–6 (citing Baker v. City of McKinney, No. 21-cv-176, 2021 WL 5390550, at *7 (E.D. Tex. Nov. 18,

2021). Plaintiff has failed to allege a per se physical taking.

harm to people, as does the instant case.

In Cedar Point Nursery v. Hassid, cited by the County, the Court treated an access

regulation as a per se physical taking. 141 S. Ct. 2063 (2021). The Court noted that such

treatment did not run afoul of precedents and that “many government-authorized physical

invasions will not amount to takings because they are consistent with longstanding background

restrictions on property rights.” Id. at 2078–79. “[T]he government owes a landowner no

compensation for requiring him to abate a nuisance on his property, because he never had a

right to engage in the nuisance in the first place.” Id. at 2079. This principle applies to the

instant case, which does not involve an agricultural access regulation given to labor

organizations to enter property to solicit support for unionization as did the regulation in Cedar

Point.

The County also cites City of Fort Lauderdale v. Scott, 888 F. Supp. 2d 1279, 1298 (S.D.

Fla. 2012), for the proposition that an emergency action taken to abate a nuisance does not

constitute a taking. There, the city demolished structures resulting from uncorrected code

violations, rather than an action to take the property for public use. As in Scott, the allegations

of the amended complaint here show that the County was not taking Plaintiff’s property for

public use. Contrary to Plaintiff’s assertions, the amended complaint does not state a federal

takings claim.

With respect to the state law inverse condemnation claim in count V, Plaintiff cites

Florida cases supporting that the exercise of police powers to invade property, including

motion to dismiss, and for the reasons stated above, Plaintiff may replead this count upon

amendment of the federal takings claim. If the federal takings claim is dismissed with prejudice

after amendment, then this Court can decide whether to exercise its supplemental jurisdiction

over this state law claim.

Count II (per se Due Process violation against County)

Plaintiff argues the amended complaint sufficiently alleges a “persistent and widespread”

practice of declaring emergency abatements sufficient to support a § 1983 per se due process

claim. The singular allegation that refers to a practice is that the County conducted 81

“emergency abatement actions” against properties (Dkt. 23 ¶ 37) in fiscal year 2019. Nothing

in the amended complaint addresses a practice in fiscal year 2017, which is the year Plaintiff’s

canopy was demolished. Assuming as true that the County conducted 81 emergency

abatements in fiscal year 2019, this fact is irrelevant for showing a pattern or practice in 2017.

Alleging a “single error” in 2017 is not enough. Dkt. 22 at 11–12 (citing Oden, LLC v. City of

Rome, 707 F. App’x 584, 588 (11th Cir. 2017) and Weiland v. Palm Beach Cnty. Sheriff’s Off.,

792 F.3d 1313, 1329 (11th Cir. 2015)). Without more, Count II fails to state a persistent and

wide-spread practice of declaring emergency abatements required for a § 1983 action against

the County. See McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).3

3 See also Moody v. City of Delray Beach, 609 F. App’x 966, 967 (11th Cir. 2015). Plaintiff cites Philly Auto,

Inc. v. City of Philadelphia, 362 F. Supp. 3d 272, 281 (E.D. Penn. 2019) as a case in which a factual issue was

created as to whether the city had a policy or custom of demolishing buildings without notice. Unlike the case

at hand, Philly Auto sufficiently presented a possible continuation of a policy, custom, or practice of

demolishing property without notice to proceed to the jury. Id.

abatement without notice) constitutes a policy or custom of the County. Dkt. 23 ¶ 36. An

ordinance is considered a policy for purposes of § 1983. Monell v. New York City Dep’t of Soc.

Serv., 436 U.S. 658, 690 (1978). The amended complaint (unlike the original complaint)

alleges that Ordinance 12-7 (the source of section 8-180) is per se unconstitutional in that the

summary abatement procedures of Ordinance 12-7 “are incapable of affording due process.”

Dkt. 31 at 9 (citing Dkt. 23 ¶ 94). Plaintiff relies on Kinnison v. City of San Antonio, 480 F.

App’x at 271, 276 (5th Cir. 2012) in support of the contention that the ordinance itself is

facially unconstitutional.

Plaintiff challenges three areas of the ordinance: the lack of a clear definition of

“imminent health risk;” the lack of a requirement that multiple designated officials make the

decision; and the lack of a requirement for an express finding that no other abatement procedure

is reasonably available. Dkt. 31 at 9. In addition to these, Plaintiff takes issue with Ordinance

12-7’s inclusion of “any public nuisance” as a potential “imminent health threat.”

In Kinnison, the court noted the city code adequately defined “dangerous buildings” in

connection with the term “imminent danger” and determined that the city ordinance was

presumptively constitutional. 480 F. App’x at 276 n.9, 277. The ordinance here provides that

the “imminent health threat” includes a public nuisance “as defined herein, which under the

circumstances presented and in the reasonable judgment of the Code Enforcement Department

Director, represents an imminent risk of causing injury . . . to humans.” Dkt. 23 ¶ 30 (citing

Code, Sec. 8-172). This definition is similar to the ordinance in Kinnison where the “dangerous

.demolished.” Plaintiff cites no other applicable authority.4

The County’s failure to give prior notice and hearing is the predominant alleged

insufficiency; yet under emergency conditions, pre-deprivation notice and hearing is not

required to abate a nuisance that represents an imminent risk of causing injury to people. See

Fuentes v. Shevin, 407 U.S. 67, 80, 90 (1972) (providing that pre-deprivation notice and hearing

is not required in “extraordinary situations”—hearing may be post-deprivation); Jimenez v. City

of Daytona Beach, No. 6:15-cv-1494-Orl-31KRS, 2016 WL 11626974, at *2 (M.D. Fla. Feb. 1,

2016) (citing Fuentes). Plaintiff cites Tackett v. Village of Carey, Ohio, No. 3:06cv7024, 2007

WL 1500892 (N.D. Ohio May 18, 2007), to establish that Ordinance 12-7 fails to provide pre-

deprivation due process. In Tackett, however, “a large gap in time” occurred between the city’s

resolution and clean-up. Id. at *4. The defendants in Tackett admitted “the denial of pre-

deprivation process was not based on an emergency situation or impracticality.” Id. The

County has made no such concession in this case, nor has Plaintiff alleged anything other than

an emergency: a hurricane hits and, within 3 days, the toppled steel canopy at a vacant gas

station on a busy street is demolished for removal. The County declared the abatement

necessary on September 14 and demolished the canopy the same day. With respect to whether

4 Plaintiff also argues that the authority of a single individual, either the Code Enforcement Department Director

or a designee, must not be granted final decision-making authority, and, in any event, no formal designation

process or supervision of the designee is provided. Dkt. 23 ¶ 94 a., b. The ordinance allegedly should require

specific findings as to the nature of the imminent health treat prior to initiating immediate abatement. Id. ¶ 94 c.

Plaintiff cites no authority in support of the adequacy of these allegations.

opportunity to amend.

Count III (as applied Due Process violation against County)

Plaintiff divides the procedural due process claim against the County in the original

complaint (Count II at Dkt. 1 ¶¶ 58–69) into two separate counts—a per se claim (Count II at

Dkt. 23 ¶¶ 89–101) and an “as applied” claim (Count III at Dkt. 23 ¶¶ 102–113). The County

argues that the “as applied” claim was not raised in the original complaint and is now time-

barred under the four-year limitation for § 1983 due process claims. See Townsend v. Dep’t of

Revenue, No. 8: 16-cv-1-MSS-AEP, 2016 WL 8914544, at *3 (M.D. Fla. Mar. 16, 2016)

(dismissing § 1983 claim as facially time-barred under Florida four-year statute of limitations).

In support, the County argues that, for the first time, Plaintiff alleges the post-deprivation

hearing denied him meaningful review of the determination that the canopy constituted a

nuisance prior to its demolition by the County. Dkt. 26 at 7.

The initial complaint, however, alleges that the County “did not follow the procedures for

abatement” of either a public nuisance or an imminent health threat under the Code. Dkt. 1 at

12. These allegations could be read to contemplate an “as applied” procedural due process

challenge to the ordinance with respect to meaningful post-deprivation review. Consequently,

Count III will not be dismissed on the statute of limitations.

Count VI (Negligence against County)

This state law count will not be stricken at this time. The County may make any

substantive arguments to this count should Plaintiff maintain this claim upon amendment.

Count IV (Due Process violation against Officer Pisano—qualified immunity)

Plaintiff argues that qualified immunity will not save Officer Pisano because the

allegations show that he violated clearly established law by initiating an abatement proceeding

without notice in a non-emergency situation. Dkt. 31 at 17–18. Count IV alleges that “[n]o

reasonable person would judge the tipped canopy represented an imminent risk of causing

injury or disease to humans.” Dkt. 23 ¶ 119.5 Plaintiff further alleges in this same vein:

Officer Pisano’s actions violated Plaintiff’s clearly established rights under the Due

Process Clause because the right to pre-deprivation notice and an opportunity to be

heard is so clear from established case law that Officer Pisano knew or should have

known that his decision to initiate the Immediate Abatement would violate

Plaintiff’s constitutional rights because no reasonable person would judge that the

tipped canopy represented an imminent risk of causing injury or disease to humans.

Dkt. 23 ¶ 124 (emphasis added). In other words, it is clearly established law, according to

Plaintiff, that this particular canopy on the particular day in question did not constitute a public

nuisance or imminent risk to human safety worthy of emergency abatement. He bolsters his

claim of no emergency with the allegation that supervisor Cansler had determined that the

canopy did not constitute a public nuisance or imminent health threat. Dkt. 23 ¶¶ 50, 124.

With respect to whether Plaintiff was entitled to pre-deprivation notice and hearing based

on the absence of any emergency, both parties cite Grayden v. Rhodes, 345 F.3d 1225 (11th Cir.

2003) and AHE Realty v. Miami-Dade County, 320 F. Supp. 3d 1322 (S.D. Fla. 2018). Dkt. 27

5 Count IV incorporates by reference paragraph 38: “No reasonable person would judge that the still-attached

canopy with only one corner touching the ground and located entirely on Plaintiff’s private property represented

an imminent risk of causing injury or disease to humans.” Dkt. 23 ¶ 114.

in existence in 2017.

The code enforcement officer in Grayden was granted qualified immunity as to the

plaintiff’s post-deprivation due process claims.6 There, the officer determined a residential

building should be condemned and gave notice of eviction but not notice of the tenants’ right to

challenge the condemnation decision. 345 F.3d at 1245–46. The remedial procedure available

to the tenants was published in the City Code. Id. at 1245. The Eleventh Circuit determined,

however, that it was not clearly established at the time of the eviction in 2000 that tenants had

the right to contemporaneous notice of their right to appeal the condemnation decision. Id. at

1248–49.

The facts of Grayden, however, do not provide clearly established law binding on Officer

Pisano. To do so, a concrete factual context must “make it obvious to a reasonable government

actor that his actions violate federal law.” See Sanders v. Howze, 177 F.3d 1245, 1249 (11th

Cir. 1999) (describing a clearly established right). The exigent circumstances in Grayden

required contemporaneous notice of the right to contest condemnation at the same time as

notice to vacate the condemned premises. 345 F.3d at 1237–38, 1244. Abating an imminent

risk to human safety created by a canopy toppled by a hurricane does not entail evicting a tenant

from a condemned property. The local code provisions differ as well. Grayden is therefore not

clearly established law applicable to Officer Pisano in the circumstances of this case. Pisano

was operating in an emergency and the law was not clearly established.

6 The Grayden court specifically found that the tenants were not entitled to a pre-deprivation hearing. 345 F.3d

at 1244.

granted qualified immunity on a motion to dismiss. There, the district court discusses Grayden

at length, noting the Eleventh Circuit’s emphasis of Grayden’s narrow holding and

distinguishing the facts of Grayden. Neither of those cases provide a clearly established right of

a property owner such as Plaintiff to pre-deprivation notice and hearing in the context of

Ordinance 12-7 and an already fallen steel structure posing a risk of imminent harm to humans.

Plaintiff argues, alternatively, that Officer Pisano is not entitled to qualified immunity

because he was acting outside the scope of his authority. Dkt. 31 at 15–16. Based on the

allegations, Officer Pisano was performing a legitimate job-related function through means he

was empowered to use. Dkt. 22 at 16. As stated in the prior order, the Code bestows upon a

code enforcement officer the ability to abate an imminent health threat, and carrying out an

immediate abatement falls under his discretionary authority. Id. citing Holloman ex re.

Holloman v. Harland, 370 F.3d 1265, 1267 (11th Cir. 2004). Per the allegations of the

amended complaint, there is no basis to consider that Officer Pisano was acting outside the

scope of his authority. Officer Pisano is entitled to qualified immunity based on these

allegations.

Based on the foregoing reasons, Officer Pisano’s motion to dismiss with prejudice (Dkt.

27) is granted. Count IV is dismissed with prejudice. The County’s motion to dismiss (Dkt.

27) is granted with leave given to amend. The County’s motion to strike Count VI (Dkt. 27) is

denied. Plaintiff shall file an amended complaint consistent with this order within fourteen (14)

days.

DONE AND ORDERED at Tampa, Florida, on March 7, 2022.

WILLIAM F.

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of record

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