FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 2, 2010

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-13610

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D. C. Docket No. 99-10054-CV-JCP

ELIZABETH J. NEUMONT,

LAWRENCE F. SCHEITER,

DAVID J. THOMAS,

SUSANA ELENA THOMAS,

individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

versus

STATE OF FLORIDA,

MONROE COUNTY, FLORIDA,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 2, 2010)
Before EDMONDSON and BARKETT, Circuit Judges, and HUNT, Senior

* **

District Judge.

PER CURIAM:

This case comes before us because Monroe County, Florida, enacted an

Ordinance that restricts vacation rentals; and Plaintiffs -- a class of property owners

in Monroe County -- sued to stop enforcement of the Ordinance. We earlier

certified a question from this case to the Florida Supreme Court. Neumont v.

Florida, 451 F.3d 1284 (11th Cir. 2006). As a result of the Florida Supreme

Court's helpful opinion, we are now able to rule on the remaining issues. We

affirm the District Court's decisions.

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Judge Barkett was a member of the original panel but did not participate in this decision. *

This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. Section 46(d).

Honorable Willis B. Hunt, Jr., Senior United States District Judge for the Northern **

District of Georgia, sitting by designation.

The District Court based some of its summary judgment rulings on other grounds. We 1

can affirm a summary judgment on grounds other than those relied upon by the District Court. 

Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1354 (11th Cir. 2009).

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I. Background

Monroe County enacted Ordinance 004-1997, restricting certain uses of

property. This change in county policy prevented several home owners from

continuing to rent out their homes as vacation rentals. Plaintiffs filed suit.

Plaintiffs characterize the complaint as presenting essentially six claims against

Monroe County spread across 13 counts.

Plaintiffs summarize their claims this way: (1) the Ordinance was enacted in

a manner that deprived Plaintiffs of their property without due process of law in

violation of the Fourteenth Amendment, (2) the Ordinance was prematurely

enforced in a manner that deprived Plaintiffs of their property without due process

of law in violation of the Fourteenth Amendment, (3) both on its face and as

applied to Plaintiffs, the County's ban on vacation rentals effected a taking of

private property without just compensation in violation of the Fifth and Fourteenth

Amendments, (4) the Ordinance is void because it was enacted in violation of

Florida Statutes § 125.66(4), (5) the Ordinance was prematurely enforced in

violation of Florida Statutes § 380.05(6), and (6) both on its face and as applied to

Plaintiffs, the County's ban on vacation rentals effected a taking of private property

without just compensation in violation of Article X, § 6(a) of the Florida

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Constitution.

The District Court dismissed the claims in a series of summary judgment

proceedings. Plaintiffs appeal the dismissal of every claim as well as the District

Court's refusal to grant discovery sanctions.

II. Florida Supreme Court Decision

After oral argument, we certified this question to the Florida Supreme Court:

Whether, for purposes of Florida Statutes section 125.66(4)(b), a

"substantial or material change" in a proposed ordinance during the

enactment process (that is, the kind of change that would require a county to

start the process over) is confined to a change in the "original general

purpose" of the proposed ordinance, or whether a substantial or material

change includes (1) a change to the "actual list of permitted, conditional, or

prohibited uses within a zoning category," or (2) a change necessary to

secure legislative passage of the ordinance?

Neumont v. Florida, 451 F.3d 1284, 1287 (11th Cir. 2006). The Florida Supreme

Court exercised its discretionary jurisdiction and answered our question.

Briefly stated, the Florida Supreme Court concluded that changes made to an

ordinance during the enactment are only "substantial or material" if they change

the ordinance's general purpose. Neumont v. Florida, 967 So. 2d 822, 825 (Fla.

2007). The Florida Supreme Court applied this definition to Monroe County's

conduct by comparing the notice provided to the public in the initial

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announcements to the final Ordinance. "Because the actual changes enacted by the

ordinance conformed substantially with the notice provided to the public, we hold

that the ordinance satisfies the general purpose test." Id. at 831. Defendant's

method of enacting the Ordinance complied with Florida law.

III. Discussion

As an initial matter, in the light of the Florida Supreme Court's decision, we

affirm the District Court's decision to dismiss all claims alleging that the Ordinance

was enacted in an unlawful manner. Defendant followed Florida law in enacting

the Ordinance. We affirm the dismissal of claims 1 and 4.

2

The claims relating to enforcement involve a purely legal question -- when

does an administrative act become enforceable under Florida law? Plaintiffs allege

that the Ordinance was not enforceable because Plaintiffs filed an appeal of the

administrative act under Florida Statutes § 120.68.

Plaintiffs contend that even if Defendant followed Florida law, Plaintiffs did not have 2

"adequate notice and a meaningful opportunity to be heard as a matter of federal law." Plaintiffs

raised no constitutional attack on the pertinent Florida statute, and so the constitutionality of

Florida Statutes § 125.66 -- setting out procedures under which a county is empowered to enact

an ordinance -- is not properly before us. By the way, this court has addressed the

constitutionality of this statute before in a due process context and concluded it was not contrary

to the Federal Constitution. First Assembly of God of Naples, Fla, Inc. v. Collier County, Fla.,

20 F.3d 419, 421-22 (11th Cir. 1994). 

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Section 120.68 does provide for judicial review of administrative acts; but

under its own terms, a petition filed under section 120.68 does not prevent the

enforcement of an agency decision. "The filing of the petition does not itself stay

enforcement of the agency decision . . . ." Fla. Stat. § 120.68(3). Because the

statute says that Defendant was entitled to enforce the Ordinance when it did, we

affirm the dismissal of claims 2 and 5.

The District Court next granted summary judgment for Defendant on the

takings claims. These claims allege inverse condemnation, and Plaintiffs had not

sought relief from this Ordinance in state court. The District Court concluded that

Defendant met its burden of proof for summary judgment with "its single factual

statement: 'None of the plaintiffs in the instant action has sought state court

remedies for inverse condemnation based on Defendant's adoption and

enforcement of the subject Ordinance.'" This statement is based on the parties'

joint statement of facts submitted to the District Court.

Plaintiffs concede that they had not challenged Ordinance 004-1997 itself in

state court. Plaintiffs contend that we should view the Ordinance as part of a larger

regulatory effort to ban vacation rentals, an effort that they had challenged twice in

Florida state courts. In the alternative, Plaintiffs contend that they are exempt

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No state court ruled on the merits of either challenge; both cases were dismissed as 3

moot.

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from the exhaustion requirement because the state court process is inadequate or

futile.

In Eide v. Sarasota County, we said that a plaintiff must "obtain a final

decision regarding the application of the zoning ordinance or regulation to his or

her property . . . ." 908 F.2d 716, 720-21 (11th Cir. 1990)(emphasis added). Both

of the cases that Plaintiffs filed in state court were filed before the enactment of the

Ordinance at issue in this case. Plaintiffs have an obligation to exhaust their state

remedies for the specific ordinance and its application before they can challenge a

taking under that ordinance in federal court. Challenging earlier, similar

ordinances is not sufficient, especially when the state court never ruled on the

merits of the earlier challenge. See Hacienda Valley Mobile Estates v. City of

Morgan Hill, 353 F.3d 651, 659 (9th Cir. 2003) ("In Austin v. City of Honolulu,

we held that unless the state courts have specifically heard the cause of action at

issue and denied it, recourse to state courts cannot be considered futile.").

Plaintiffs raise a futility argument: Defendant, Plaintiffs say, will take action

to moot the case before a court can rule on the merits. But we see this prediction as

entirely speculative. For background, see M.T.V. v. Dekalb County Sch. Dist., 446

F.3d 1153, 1159 n.4 (11th Cir. 2006) (procedural failures in past administrative

proceedings are not sufficient for futility arguments for later claims). We also

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observe that Florida courts may hear a claim that is likely to recur yet evade review

if it is otherwise moot under Florida law. Sims v. State, 998 So. 2d 494, 503 n.8

(Fla. 2008). We have not been persuaded that it would be futile to go to the state

courts.

The final issue before us is the District Court's decision not to impose

sanctions on Defendant for its conduct during discovery. Plaintiffs filed four

motions to compel discovery. The District Court granted the motions to compel

but declined to award sanctions. The District Court wrote that, "[t]he court finds

that plaintiffs' counsel are not entitled to fees under Federal Rule of Civil

Procedure 37(a)(4)(A) for two reasons: (1) Defendant's objections to discovery

sought were substantially justified, and (2) other circumstances make an award of

expenses unjust as described below."

Objections are substantially justified when "reasonable people could differ

as to the appropriateness of the contested action." Maddow v. Procter & Gamble

Co., 107 F.3d 846, 853 (11th Cir. 1997). Defendant's objections to the discovery

were based on relevancy grounds.

Plaintiffs have not presented sufficient evidence that the District Court

abused its considerable discretion in managing discovery and determining that

reasonable people could differ in the appropriateness of Plaintiffs' discovery

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requests. And because a determination of substantial justification by the District

Court is sufficient to deny discovery sanctions, we do not need to decide whether

the District Court was correct in also deciding that sanctions would be otherwise

unjust.

IV. Conclusion

We affirm the final decision of the District Court. Based on the Florida

Supreme Court's opinion and our own analysis of the law, Plaintiffs have no valid

claims remaining.

AFFIRMED.

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