FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 8, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10814

Non-Argument Calendar

________________________

D. C. Docket No. 07-01501-CV-ORL-22GJK

ROBERT W. KUPKE, 

ANITA O. KUPKE, 

Plaintiffs-Appellants, 

versus 

ORANGE COUNTY, FL, 

Defendant-Appellee, 

TRACEY GREENE, 

KURT FASNACHT, et al., 

Defendants. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 8, 2008)
 In this context, a “bush hog” (also known as a “brush hog”) is not an animal, but a type 1

of mower used to clear vegetation by pulling it behind a tractor.

2

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

In this civil rights action, Robert and Anita Kupke allege they were deprived

of property without procedural due process. We vacate the district court’s

threshold dismissal of the claim and remand for further proceedings.

I. 

At the motion to dismiss stage we, like the district court, assume the factual

allegations in the complaint are true and draw all reasonable factual inferences in

favor of the plaintiff. See, e.g., Spanish Broadcasting Sys. of Fla., Inc. v. Clear

Channel Commc’ns., Inc., 376 F.3d 1065, 1070 (11th Cir. 2004). Then we review

de novo whether the complaint, so construed, states a claim for relief. Id.

The Kupkes were cited by the Orange County Code Enforcement Board,

their local land use authority, for impermissible outdoor storage of certain heavy

machinery (including a bulldozer, a crane, a backhoe, and a “bush hog” ) and for 1

maintaining a junkyard. The Kupkes protested that their machines were bona fide

farming equipment and therefore exempted by Florida statute from local nuisance

and zoning laws. 

A hearing on the citation was held in August 1998, at which the Kupkes
3

presented some evidence, but the Enforcement Board adjourned the hearing to

permit appellants to construct an outbuilding to house their equipment, which

would have brought it into compliance with the zoning laws. Later, in July 1999,

the hearing was reconvened, apparently with no outbuilding having been built. 

After affording the Kupkes minimal time (five minutes) to put on evidence that

their equipment was exempt, the Enforcement Board issued an order finding the

Kupkes in violation of the Orange County Code and giving them thirty days to

correct the problem. Thereafter, fines would accrue at $250 per day, as authorized

by Fla. Stat. § 162.09(1). 

The Kupkes appealed the order to Florida’s Ninth Judicial Circuit. Both the

Enforcement Board and the Ninth Judicial Circuit denied a stay pending appeal, so

the fines continued to accrue, ultimately reaching about $125,000. The Board

placed a lien upon the Krupkes’ property in March 2000. To avoid further fines

and foreclosure of the lien, the Krupkes sold their farm equipment at auction,

resulting in a substantial loss. Selling the equipment brought the property into

compliance with the zoning requirements, so the Enforcement Board filed an

affidavit of compliance before the Ninth Judicial Circuit in February 2001. The

Board also agreed, at some unspecified date after this affidavit was filed and after

negotiation with the Kupkes, to reduce the fine to $2,500, which the Kupkes then
4

paid voluntarily. Thereafter, the Ninth Judicial Circuit found the Enforcement

Board’s action to be lawful. The Kupkes sought appellate review in Florida’s Fifth

District Court of Appeal. The court granted certiorari and concluded the July 1999

hearing deprived the Kupkes of property without procedural due process by

denying them a meaningful opportunity to be heard prior to imposition of the fine. 

The court vacated the Ninth Judicial Circuit’s judgment and remanded with

instructions to vacate the Enforcement Board’s order and order a new Board

hearing, which Ninth Judicial Circuit on remand did. Before a new hearing could

be held before the Enforcement Board, attorneys for Orange County voluntarily

dismissed the case. 

The Kupkes then filed this suit, seeking to recoup the $2,500 fine, the loss

they took when they were forced to auction their farm equipment, the costs of the

auction, and lost profits from their inability to farm due to sale of the equipment. 

On motion of defendant, the amended complaint was dismissed for failure to state

a claim. The district court concluded that the complaint stated no constitutional

violation, or alternatively that even if it did, the monetary losses incurred by the

Kupkes were not caused by the violation alleged. This timely appeal ensued.

II. 
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The elements of the § 1983 claim at issue here are (i) deprivation of a

constitutionally protected property interest, as a result of (ii) state action, and (iii)

without the benefit of constitutionally adequate process. See, e.g., Grayden v.

Rhodes, 345 F.3d 1225, 1232-33 (11th Cir. 2003). And although we have never

explicitly stated it as a separate element of the claim, it is readily apparent that for a

claim alleging deprivation of property without procedural due process to succeed,

there must be a causal connection between the state action and the property

deprivation. Id. at 1232 (due process implicated where plaintiffs are deprived of

property “as a result of” state action); see also Ross v. Clayton Cty., Ga., 173 F.3d

1305, 1307 (11th Cir. 1999).

Thus, the Kupkes’ theory of the case is that the deficient July 1999 predeprivation hearing resulted in the imposition of a fine (state action), which they

eventually paid (a deprivation of property), and the accumulating fines caused

them to undertake a fire-sale auction, resulting in further losses of property. 

Meanwhile, once the remanded Enforcement Board action was dismissed, they had

no post-deprivation procedural remedy under state law, ensuring that they received

constitutionally inadequate process.

The district court treated the state action complained of here as the voluntary

dismissal of the administrative proceeding before the Enforcement Board after
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remand from the Florida courts. Accordingly, it concluded (i) that this state action

could not give rise to a procedural due process claim because any plaintiff has an

absolute right to dismiss its case, and (ii) that the deprivations of property

complained of, which all occurred before the voluntary dismissal, could not have

been caused by the dismissal, and therefore no claim would lie. 

We believe the district court misconstrued the complaint by focusing on the

wrong state action. The complaint does, in places, allege that “[a]s a consequence

of the Notice of Dismissal the Kupkes were deprived of their due process of law,

resulting in [damages].” Compl. ¶ 28. But the complaint as a whole, fairly read,

alleges that the damages sought are a consequence of the citation imposed after the

inadequate July 1999 hearing and that the voluntary dismissal merely deprived the

Kupkes of state procedural remedies which could have provided constitutionally

adequate post-deprivation process. See Compl. ¶ 27 (“As a consequence of [the

voluntary dismissal], the state court lost jurisdiction to further hear this dispute and

to provide procedural due process . . . The [voluntary dismissal] resulted in a

deprivation of Kupkes’ constitutionally protected property interest in that the

Kupkes could no longer avail themselves of state court remedies . . .”). Put

differently, we do not understand appellants to argue that notice and a hearing is

required before a local government instrumentality may dismiss a lawsuit or
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administrative proceeding. Appellants merely argue their procedural due process

claim did not ripen or accrue until the voluntary dismissal of the enforcement

action by Orange County, and rightly so, because a lack of due process before a

deprivation of property may be cured by adequate post-deprivation process. 

McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc). This is because

“the constitutional violation actionable under § 1983 is not complete when the

deprivation occurs; it is not complete unless and until the state fails to provide due

process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). Thus, appellants argue

that while due process was denied them at the July 1999 hearing, it was not

apparent until the voluntary dismissal that they would also be denied any further

state law remedy.

In any event, even if the Kupkes at times described their claim less artfully

than they might have, a court’s proper focus at the motion to dismiss stage is on the

factual allegations of the complaint – whether it contains “enough factual matter

(taken as true) to suggest the required element[s]” of the claim. Watts v. Fla. Int’l.

Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (internal citations and punctuation

omitted). When the facts in the complaint can be given a generous but reasonable

construction which might satisfy the elements of the cause of action alleged, they

ought not be given some other construction under which the claim borders on
 The fact that the Kupkes voluntarily paid the fine likely does not render the deprivation 2

of property attributable to private conduct rather than state action, because the actions of private

parties may be attributed to the state where it “coerced or at least significantly encouraged the

action alleged to violate the Constitution.” Focus on the Family v. Pinellas Suncoast Transity

Auth., 344 F.3d 1263, 1277 (11th Cir. 2003) (citations omitted). Whether the lost profits, losses

on auction of the equipment, and the costs of auction can plausibly be ascribed to state action are

questions for the district court on remand.

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frivolous. Hence, imposition of the fine is the appropriate state action for purposes

of this claim.

So construed, we believe the complaint adequately alleges a deprivation of

property resulting from state action, at least with respect to the $2,500 fine. The

Enforcement Board’s issuance of a citation and fine clearly constituted state action,

and upon payment, deprived the Kupkes of property.2

A more complicated question is whether the Kupkes were afforded adequate

process. In considering whether adequate remedies exist, we must consider what

remedies are available under state law, not whether the plaintiff took advantage of

them. Horton v. Bd. of Cty. Comm’rs, Flagler Cty., 202 F.3d 1297, 1300 (11th

Cir. 2000). Florida law ordinarily provides for pre-deprivation process, namely

notice and a hearing before the Enforcement Board before a citation will issue,

with appellate review to follow. But a meaningful pre-deprivation hearing is

precisely what appellants were denied here. The County urges that some

combination of (i) judicial review of the Enforcement Board order, (ii) mandamus,

and (iii) a new Enforcement Board hearing would afford the Kupkes all the process
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they are due. We are not so confident, however, that any of these, or all of them in

combination, provide a meaningful post-deprivation remedy in the circumstances

presented. To be meaningful, a post-deprivation remedy must afford the property

owner an opportunity to recover the property taken without due process if the

evidence so warrants, and it is not clear from the record and the parties’ briefs that

any of the procedures advocated by the County do so. As to appellate review in

the Florida courts: in their appeal of the Enforcement Board action, the Kupkes

asserted a lack of due process as a defense against enforcement of the citation

against them. The citation was quashed in due course after the Fifth District Court

of Appeals’ decision, but as we read the complaint, the appellate court’s mandate

provided no basis for imposition of any liability against the County, nor did it

necessarily require repayment of fines paid after the deficient hearing. In contrast,

in this action the Kupkes employ that same constitutional argument, lack of due

process, as a claim to recover damages. Perhaps the Florida courts would not

adhere to this formal distinction, but we have no reason to believe to the contrary at

this stage of the proceedings.

The County also urges that the Kupkes should have sought rehearing before

the Enforcement Board, which would have provided an adequate state law remedy. 

But contrary to the County’s position, neither the face of the complaint nor our
 There was no argument that the appellate court’s mandate was ignored; appellants 3

concede that voluntary dismissal was within the County’s rights.

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review of Florida law suggests that the Kupkes could obtain rehearing before the

Enforcement Board on their own motion. Indeed, at least one Florida court has

held that Enforcement Boards lack legal authority to grant rehearing to aggrieved

landowners. City of Palm Bay v. Palm Bay Greens LLC, 969 So.2d 1187, 1190

(Fla. Ct. App. 2007) (citations omitted). The County also urges that the Florida

courts could issue mandamus compelling a new Enforcement Board hearing if the

Fifth District’s mandate so requires, but that is a useful remedy only if a new

hearing would be.3

Even if the Kupkes could obtain rehearing before the Enforcement Board on

their own motion or by mandamus, it is not apparent that such a hearing would

provide an adequate post-deprivation remedy for wrongfully collected fines. 

Chapter 162 of the Florida Statutes, the organic act which authorizes the creation

of local zoning Enforcement Boards, specifies the qualifications and terms of

Board members, Fla Stat. § 162.05, authorizes enforcement proceedings, § 162.06,

and specifies procedures to be employed at Board hearings, § 162.07. But it makes

no mention of a mechanism whereby a property owner may initiate a new

proceeding to recoup an unlawfully imposed fine after payment thereof; it appears

that Enforcement Boards may be authorized only to hear enforcement proceedings
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initiated by code inspectors. See Fla. Stat. §§ 162.05; 162.06(1). 

Yet because Chapter 162 is fairly skeletal about the procedures to be

employed in Enforcement Board disputes, Florida courts “fill the procedural gaps

in [chapter 162] by the common-sense application of basic principles of due

process.” Massey & Massey v. Charlotte Cty., 842 So.2d 142, 145 (Fla. Dist. Ct.

App. 2003) (citations omitted). So the absence of a refund-like procedure in

Chapter 162 does not decisively prove that the Kupkes could not obtain a refund;

Florida case law and administrative practice are also relevant. Perhaps

Enforcement Boards have an informal practice of refunding fines that a court later

determined to have been imposed without due process. Perhaps the power to do so

is taken for granted by Florida courts and Enforcement Boards. But at this stage of

the proceedings and given the arguments presented to us, we are not sufficiently

confident that such a power or practice exists to conclude that the Kupkes would

have a post-deprivation remedy. This appears to be a matter that may be more

fruitfully addressed on a summary judgment record.

In short, we cannot say with any confidence that the Kupkes have not

alleged a cognizable due process claim. In particular, as the above discussion

makes clear, neither the record at the motion to dismiss stage nor the arguments

made on appeal conclusively demonstrate that the Kupkes had an adequate remedy
 We also encourage the parties to make good faith efforts to reach a reasonable 4

settlement of this matter, which has grown, no doubt unnecessarily, from a simple zoning dispute

into a decade-long, multi-forum saga.

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to recover the wrongfully imposed fines. Therefore, we must remand the case for

further proceedings.4

Accordingly, we VACATE the district court’s order dismissing the

complaint and REMAND for further proceedings consistent with this opinion.