Motion — Amis v. City of Fort Myers

Office -Suprame Court, U.S.

FILED

JUL 6 1984

‘SANDER L. STEVAS,

No. 83-1997

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JOHN C. AMIS, UR.

D/B/A AMEY, INC., GULF MAPS, BONITA REALTY

Appellants

Vv.

CITY OF FORT MYERS, FLORIDA

and the CODE ENFORCEMENT BOARD

of the City of Fort Myers

and ELLIS SOLOMON, Mayor,

Appellees

APPEAL FROM THE DISTRICT COURT OF FLORIDA

SECOND DISTRICT

MOTION TO DISMISS

JAMES L. GOETZ, ESQUIRE

GOETZ & HARTMAN

Attorneys for Appellees

Post Office Box 6844

Fort Myers, Florida 33911

(813) 936-2841

QUESTIONS PRESENTED UPON APPEAL

The question set forth in the jurisdictional

statement of the Appellant is an inaccurate

statement of the issue which the Appellant seeks

to raise. The correct question is whether the

failure of the State Courts of Florida to give

written explanation for their decisions

constitutes a denial of due process protected

under the Fourteenth Amendment to the United

States Constitution.

TABLE OF CONTENTS

Page

Questions Presented Upon Appeal........... i

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Constitutional and Statutory Provisions

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Motion to Dismiss

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The failure of state courts to

render written opinions explaining

their decisions does not constitute

a denial of due process resulting in

an unconstitutional taking of

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TABLE OF AUTHORI'TLES

Cases: Page

International Brotherhood, T. C. W. & H.

v. Denver Milk Producers

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Simmons v. West Haven Housing Authority

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Constitutional and Statutory Authorities

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OPINIONS BELOW

The Appellees are in agreement with the

representations set out by the Appellant.

JURISDICTION

The Appellees are in agreement with the

Appellant's representations as to the various

actions attributed to the State Courts of

Florida, but denies that this Court's

jurisdiction is invoked in this case pursuant to

28 U.S.C. 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Appellees are in agreement with the

representations set out by the Appellant.

STATEMENT OF THE CASE

The Appellees offer the following as a more

complete rendition of the facts in this case than

presented by the Appellant.

In July, 1963 Amey, Inc., a Florida

corporation, purchased a parcel of land within

the City of Fort Myers and which was then zoned

for business and began conducting business on the

property as one or more corporations. In 1967,

pursuant to then applicable Florida Statutes, the

City of Fort Myers undertook a rezoning program

for the whole city and after giving proper legal

notice entered into and completed a rezoning

program which in part resulted in the property of

the Appellant being rezoned from business to

residential. All legal notice requirements were

met. Subsequent to the rezoning the Appellant

failed to obtain city occupational licenses and

improperly operated businesses in a residential

zone. In February, 1979, Amey, Inc. deeded the

parcel of land to the Appellant. At all times

material hereto the Appellant was the sole or

controlling stockholder or principal in those

organizations reflected in the style of the case.

After receiving due and proper notice, on

January 21, 1982, the Appellant appeared before

the Code Enforcement Board of the City of Fort

Myers concerning the violations. It was

explained to the Appellant that his failure to

obtain appropriate occupational licenses

subsequent to the rezoning resulted in his three

businesses no longer being qualified under the

"grandfather clause" at their present location as

to businesses operating in a residential zone.

Although the Code Enforcement Board was not able

to rezone the Appellant's property, the Board at

their meeting and within their power decided to

allow the Appellant to operate his three business

Organizations at the subject location provided

that the Appellant reimburse the City for the

accrued fees and charges owing the City as the

result of his failure to obtain the appropriate

cccupational licenses. It was further decided

that the Appellant be allowed one week to

purchase all delinquent licenses and to pay all

appropriate fines. The Appellant responded by

attempting to pay his fines with "public office

money certificates" (non-legal tender) dated

January 29, 1982. The public office money

certificates were not accepted by the City as

they did not constitute legal tender. This

matter, after due and proper notice to the

Appellant, was heard again by the Code

Enforcement Board on February 24, 1982 at which

time the Board entered an Order fining the

Appellant. The Appellant again refused to

reimburse the City for the accrued fees and

charges owing the City from the operation of his

businesses and pursuant to Chapter 166, Florida

Statutes, the City of Fort Myers on March 5, 1982

filed a lien against the property of the

Appellant. Chapter 166, Florida Statutes,

provided for the establishment of the Code

Enforcement Board by the City of Fort Myers and

also permitted the filing by the City of a lien

on the land where the violating business existed,

regardless of the ownership of such land. On

March 25, 1982 the Appellant filed a Writ of

Certiorari in the Circuit Court in and for Lee

County, Florida alleging that the filing of the

lien by the City constituted a taking of property

without due process of law. The Appellant's

Petition for Writ of Certiorari in the Circuit

Court was dismissed with prejudice after its

third Amendment and such dismissal was without an

opinion. The Circuit Court, in its wisdom, chose

not to comment on the allegations set forth in

the Third Amended Petition for Writ of Certiorari

of the Appellant wherein, among other things, he

stated that he was ready and willing to pay any

and all city taxes which he might owe the City

but was unable to do so since "no gold or silver

coin or redeemable certificates circulate as

money within the borders of the State of Florida,

as such the Petitioner cannot lawfully discharge

his liability for the tax debt.!" The Circuit

Court's dismissal with prejudice was entered on

May 12, 1983.

Appellant's appeal was dismissed by the

Second District Court of Appeal on December 9,

1983 PER CURIAM without an opinion.

Appellant's Motion for Rehearing or for

Clarification was denied on January 11, 1984

without an opinion.

Appellant filed an appeal to the Florida

Supreme Court on February 28, 1984 and which was

dismissed subject to reinstatement if

jurisdiction was established.

Appellant filed with the Florida Supreme

Court a Motion for Reinstatement on February 28,

1984 and which was denied on March 7, 1984.

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MOTION ‘'O DISMISS

le The failure of state courts to render

written opinions explaining their decisions does

not constitute a denial of due process resulting

in an unconstitutional taking of property.

The Appellees move to dismiss the appeal

from the District Court of Appeal of Florida,

Second District. The gravamen of the Appellant's

appeal is that the failure of the State Courts of

Florida to render opinions to explain or support

their decisions constitutes a denial of due

process under the Fourteenth Amendment of the

United States Constitution. It is interesting to

note that the Appellant is not claiming that the

decisions constitute a denial of due process, but

only that the failure of the lower courts to

render written opinions explaining their

decisions constitutes the denial of due process

claimed. It is the position of the Appellant

that the issuance of decisions by the lower

courts without opinions denies the Appellant

further judicial review in the State Courts of

Florida and that such action constitutes a denial

of due process and equal protection under the

Fourteenth Amendment to the United States

Constitution. The Appellees know of no

constitutional obligation or statutory obligation

of the State Courts of Florida to render written

opinions explaining their decisions as to matters

concerning actions taken by Code Enforcement

Boards and cities under Section 166.061, Florida

Statutes, now known as Section 162.11, Florida

Statutes. It is well settled that the Supreme

Court will generally not hear an appeal where the

record does not clearly disclose the ground of

the lower court's decision. Simmons v. West

Haven Housing Authority, 399 U.S. 510 (1970). It

has also been held that the Supreme Court will

not hear an appeal where the record is unadequate

for the purpose of deciding the constitutional

issues presented. International Brotherhood, T.

C. W. & H. v. Denver Milk Producers, 334 U.S. 809

(1948). The Appellant does not have an

inalienable right to a written opinion as to each

lower court decision. To impose such an

obligation on the State Courts would create an

enormous administrative burden on the State

Courts of Florida which would virtually paralyze

the judicial process. While it is true that the

law which permitted the creation of the Code

Enforcement Board made a specific requirement

that any Order of the Board may be appealed to

the Circuit Court for review, the law does not

contain any requirement that the Circuit Court

render a written opinion as to any Order entered.

Section 166.057, Florida Statutes. The Appellees

see little merit in the argument of the Appellant

that he has been denied due process when he was

given the opportunity by the Circuit Court to

file numerous amended Complaints prior to having

his Third Amended Complaint dismissed with

prejudice after ample opportunity to perfect such

Complaint. The Appellant, in his appeal to the

Court of Appeal in Florida had the right and took

the opportunity to file both his multi-page

appeal and multi-page reply brief and has not had

his access to the courts restricted in any manner

whatsoever. Certainly, Sections 2 and 2l,

Article 1, Constitution of the State of Florida

have not been violated by the actions of the

lower courts and the Appellant to allege that he

has been denied access to the courts because he

has not received a written opinion as to the

decisions rendered by the courts is without

merit or precedent. The Appellant was entitled

to his day in Court and had his day and should

not be entitled to another day in Court just

because he is dissatisfied with the decision.

10

CONCLUSION

The failure of the District Court of Appeal

of Florida, Second District, to give a written

explanation for its decision denying the appeal

of the Appellant did not constitute a denial of

due process protected under the Fourteenth

Amendment to the United States Constitution.

Accordingly, the Appellees pray that this Court

dismiss the appeal for a plenary review of the

decision of the District Court of Appeal of

Florida, Second District.

preeneerut ty sybmitted,

5 L. Goetz, Esquire

Goetz & Hartman

Post Office Box 6844

Fort Myers, Florida 33911

(813) 936-2841

11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have on this 5th day

of July, 1984, mailed three copies of the Motion

to Dismiss, postage prepaid to:

Jim Smith

Attorney General, State of Florida

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32304

John C. Amis, Jr.

2670 Maple Avenue

Fort Myers, Florida 33901 SA

L. Goetz, Esqu

aac & Hartman AS

Post Office Box 6844

Fort Myers, Florida 33911

(813) 936-2841

12

A-1

No. 83-1997

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JOHN C. AMIS, JR.

D/B/A AMEY, INC., GULF MAPS, BONITA REALTY

Appellants,

V.

CITY OF FORT MYERS, FLORIDA

and the CODE ENFORCEMENT BOARD

of the City of Fort Myers

and ELLIS SOLOMON, Mayor,

Appellees

APPEAL FROM THE DISTRICT COURT OF APPEAL

OF FLORIDA, SECOND DISTRICT

APPENDIX

JAMES L. GOETZ, ESQUIRE

GOETZ & HARTMAN

Post Office Box 6844

Fort Myers, Florida 33911

(831) 936-2841

A-2

The Appellees accept, adopt and incorporate

by reference the Appendix of the Appellant.