Barcena v. Dosp of City of Miami

492 F.Supp.2d 1343

Jack BARCENA, Plaintiff, v. DEPARTMENT OF OFF-STREET PARKING OF the CITY OF MIAMI, et al., Defendants.

No. 03-CIV-22722.

United States District Court, S.D. Florida.

January 12, 2007.

Usher Bryn, Usher Bryn, Aventura, FL, for Plaintiff.

Cesar Rafael Sordo, Sordo & Associates, Coconut Grove, FL, Arthur M. Freyre, Moulis & Associates, Fort Lauderdale, FL, Warren Bittner, Miami City Attorney's Office, Miami, FL, for Defendants.

OMNIBUS ORDER; CLOSING CASE

ALAN S. GOLD, District Judge.

THIS CAUSE came before the Court upon the Motion for Summary Judgment filed by the Department of Off-Street Parking of the City of Miami (hereinafter "DOSP") [DE # 128, filed on September 15, 2006],¹ "Motion to Certify Class (Renewed Motion) and Memorandum of Law in Support of Class Action Certification" filed by Plaintiff [DE # 147, filed on October 23, 2006] and "Motion to Take Judicial Notice" filed by Plaintiff [DE # 156, filed on November 22, 2006].² Oral argument was held on November 17, 2006. After oral argument, I allowed the parties to submit supplemental briefing and to conduct additional discovery on several issues. [DE # 155] The parties submitted supplemental briefing [DE # 156, 158, 160, 161, and 162]. Therefore, this matter is now ripe for review.

I. Background

On March 15, 2005, Plaintiff filed a First Amended Complaint [DE # 60]. Defendants DOSP and Margaret Buttery filed Motions to Dismiss addressing Plaintiffs First Amended Complaint [DE # 55 and 77]. In an Order dated October 18, 2005, I dismissed Count III of the First Amended Complaint and terminated Defendant Margaret Buttery as a party to this suit [DE # 91]. The following claims remain pending from the six-Count First Amended Complaint filed by Plaintiff Jack Barcena against Defendants DOSP, Orlando Molina and Molina Towing, Inc. (herein collectively "Molina"):

A. For alleged violation of procedural due process against DOSP (First Amended Complaint, Counts I and II);

B. For declaratory judgment concerning the scope of Florida's Towing Lien Statute against DOSP and Molina (First Amended Complaint, Count IV);

C. For declaratory judgment concerning the legality of DOSP's $25.00 administrative fee against DOSP (First Amended Complaint, Count V); and

D. For common law conversion under state law against Molina. (First Amended Complaint, Count VI).

On September 15, 2006, DOSP filed a Motion for Summary Judgment [DE # 128] and on October 23, 2006, Plaintiff filed a Second Motion to Certify Class (Renewed Motion) [DE # 147]. On November 17, 2006, I held oral argument and, thereafter, I allowed the parties to engage in limited discovery on a number of issues.

The following facts are gleaned from the parties' submissions and the Court's independent review of the copious record in this matter and are relevant for evaluating the pending Motions. Plaintiff was the owner of a 1984 Buick station wagon, tag number W64JXZ. (Affidavit of Jack Barcena, ¶ 1). Defendant DOSP is an agency and/or instrumentality of the City of Miami. Defendant Molina Towing, Inc. has an exclusive contract with DOSP to tow and impound vehicles at DOSP's request. Defendant Orlando Molina is the President of Molina Towing, Inc.

Plaintiff resides at the Arena Hotel, 532 N. Miami Ave., Apt. 11, Miami, Florida. (Depo. of Jack Barcena, 6). Normally, Plaintiff parked his car approximately one-half mile from his residence (in a lawful non-metered parking space), since there are no non-metered parking spaces on the streets close to where he lives. (Affidavit of Jack Barcena, ¶ 3). It is undisputed that Plaintiff did not drive his car very often, however, he would check it periodically and run the engine to keep the battery charged. (Affidavit of Jack Barcena, ¶ 4). Between July 9 and July 18, 2003, Plaintiffs vehicle bearing Florida license plate W64JXZ parked at Meter No. 0462051 was issued a number of citations in violation of Section 30-378(c) of the Miami-Dade County Code for overtime parking. On July 18, 2003, at approximately 1:00 p.m., Parking Enforcement Specialist M. Buttery of the DOSP, authorized Molina to tow Plaintiffs vehicle after Plaintiffs car was issued a number of parking citations over a period of more than one week. When Parking Enforcement Specialist M. Buttery authorized the tow, the citation from the week before, as well as all subsequent citations, were all still on the windshield. The Vehicle Storage Receipt erroneously indicated the location of the vehicle before towing as 1300 N.W. 13th Ct., instead of the correct location, i.e., 1300 N.E. 13th Ct. (Depo. of Margaret Buttery, 15). Plaintiff's car was labeled an "abandoned vehicle." (Depo. of Margaret Buttery, 18). DOSP contends that the lawful basis for the impoundment of Plaintiffs car is Miami-Dade Ordinance Section 30-384(5) or Section 30-388.15(5).³

On July 14, 2003, Miami Police Report Incident No. 20415943 reflects that Plaintiff reported that his 1984 Buick station wagon was stolen. On July 24, 2005, the Miami Police Department sent a letter to Plaintiff advising him that his car had been recovered, and that it was at Molina's place of business. (Affidavit of Jack Barcena, ¶ 6). Plaintiff estimates that he received the letter sometime at the end of July. (Depo. of Jack Barcena, ¶ 13-14).

On August 1, 2003, Molina sent a "Notice of Claim of Lien Letter and Proposed Sale of Motor Vehicle" pursuant to Fla. Stat. § 713.78 by certified mail. The envelope was postmarked August 1, 2003. According to the return receipt, Plaintiff obtained the letter, and signed for it at the post office on August 27, 2003. (Depo. of Jack Barcena, 18-19). The notice indicated that: (a) the accumulated towing and storage charges amounted to $100.00; (b) the owner had a right to a hearing under Fla. Stat § 713.78(4), to determine if their property was wrongfully taken; (c) the vehicle could be released to the owner after the owner posted a cash or surety bond or other adequate security equal to the amount of the charges for towing and storage with the court; and (d) the vehicle could be sold if not redeemed to satisfy the lien.

Fla. Stat. § 713.78(4)(c) provides that a towing company shall give "notice by certified mail within 7 business days of the date of storage of the vehicle." The Statute further provides in subsection (9) that "[f]ailure to make good faith best efforts to comply with the notice requirements of this section shall preclude the imposition of any storage charges against such vehicle ..." It is undisputed that the notice of lien sent by Molina was not mailed within seven business days from the date of storage of Plaintiffs vehicle as required by Fla. Stat. § 713.78(4)(c), but was rather two days late. It is also undisputed that this notice of lien was the only notice given to Plaintiff informing him of his right to a hearing and/or post-deprivation remedies. On August 27, 2003, a public notice was published which advertised a public auction to be held at Molina on September 10, 2003, which included Plaintiffs vehicle. On September 9, 2003, Plaintiff wrote a hand-written letter to Molina.⁴

On September 9, 2003, Plaintiff went to Molina in person with $100.00 in hand. (Depo. of Jack Barcena, 27). Plaintiff testified that he was prepared to offer Molina up to $400.00 for the release of his car on September 9, 2003. (Depo. of Jack Barcena, 28). On September 10, 2003, at 2:00 p.m., Molina foreclosed its lien on Plaintiffs vehicle, after which Molina assumed ownership rights to the vehicle by submitting an application for a "certificate of destruction" to the Department of Motor Vehicles.

During calendar year 2003, DOSP towed approximately 2,156 improperly parked vehicles. (Affidavit of Humberto Escandon ¶ 10). During the three years prior to the impoundment of Plaintiff's vehicle, DOS? impounded 528 cars it deemed to be "abandoned" under Miami-Dade County Code § 30-388.15. (Joint Pretrial Stipulation, 12).

II. Standard of Review

Rule 56(c) of Federal Rules of Civil Procedure authorizes summary judgment when the pleadings and supporting materials show that there are no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). Once the moving party satisfies this burden, the burden shifts to the party opposing the motion to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Celotex v. Catlett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is genuine only if the evidence is such that a reasonable fact finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.2001).

In assessing whether the movant has met its burden, the court should view the evidence in the light most favorable to the party opposing the motion and should resolve all reasonable doubts of fact in favor of the non-moving party. Denney, 247 F.3d at 1181. In determining whether to grant summary judgment, the court must remember that "[c]redibility determinations, weighting of the evidence, and drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Additionally, a court must be careful not to weigh the evidence or make findings of fact when evaluating a motion for summary judgment. A...