From Casetext: Smarter Legal Research

City of St. Petersburg v. Kablinger

District Court of Appeal of Florida, Second District
Apr 14, 1999
730 So. 2d 409 (Fla. Dist. Ct. App. 1999)

Opinion

No. 98-01850

Opinion filed April 14, 1999.

An Appeal from nonfinal order of the Circuit Court for Pinellas County; Thomas E. Penick, Jr., Judge.

Michael S. Davis, City Attorney, and Thomas A. Bustin, Assistant City Attorney, St. Petersburg, and Robert H. Freilich, Kansas City, Missouri, for Appellant.

Robert H. Willis, Jr. of Skelton, Willis Bennett, St. Petersburg, for Appellee.


In this inverse condemnation litigation the City of St. Petersburg challenges a partial summary judgment that established its liability for a taking. We affirm, but certify that our decision conflicts with that of another district court of appeal.

In 1993 the St. Petersburg Nuisance Abatement Board (NAB) determined that a public nuisance existed on Joseph H. Kablinger's property because cocaine had been sold there on more than two occasions. Pursuant to the St. Petersburg Code of Ordinances 19-66 through 19-72, and section 893.138, Florida Statutes (1991), the NAB prohibited any rental or business activities at the property for one year, beginning July 1, 1993. The property owner did not appeal the NAB's order, nor seek to modify it. Instead, in 1997 Kablinger filed suit asserting that he was entitled to compensation because the order constituted a temporary taking of the use of the property.

At that time, the property was owned by Residential Property Management, Inc. That corporation was dissolved by the Florida Secretary of State in 1995. Kablinger is the corporation's successor in interest by virtue of an assignment.

The circuit court granted Kablinger a summary judgment on the issue of the City's liability, guided primarily by our decision in Bowen v. City of St. Petersburg, 675 So.2d 626 (Fla. 2d DCA 1996), review denied, 680 So.2d 421 (Fla. 1996),cert. denied, 520 U.S. 1110 (1997). TheBowen decision involved the same ordinance and statute at issue here, and it found there had been a compensable temporary taking under circumstances that were materially indistinguishable from those in this case. Accordingly, we affirm the partial summary judgment.

Recently, however, the Third District considered a case involving similar facts and a similar ordinance promulgated pursuant to section 893.138. It concluded that a temporary closing of property because it is a nuisance is not a compensable taking. See City of Miami v. Keshbro, Inc., 717 So.2d 601 (Fla. 3d DCA 1998), review granted, Table No. 94,058 (Fla. Feb. 23, 1999). The Keshbro court endeavored to distinguish Bowen, but we believe the decisions are in conflict, and we note that Keshbro is currently under review by the supreme court. That being so, we certify that this decision conflicts with Keshbro.

Affirmed, conflict certified.

CASANUEVA, J. and QUINCE, PEGGY A., ASSOCIATE JUDGE, Concur.


Summaries of

City of St. Petersburg v. Kablinger

District Court of Appeal of Florida, Second District
Apr 14, 1999
730 So. 2d 409 (Fla. Dist. Ct. App. 1999)
Case details for

City of St. Petersburg v. Kablinger

Case Details

Full title:CITY OF ST. PETERSBURG, FLORIDA, Appellant, v. JOSEPH H. KABLINGER…

Court:District Court of Appeal of Florida, Second District

Date published: Apr 14, 1999

Citations

730 So. 2d 409 (Fla. Dist. Ct. App. 1999)

Citing Cases

Keshbro v. City of Miami

Art. V, § 3(b)(3), Fla. Const. We also have for review the decision in City of St. Petersburg v. Kablinger,…

Abu-Khadier v. City of Fort Myers

Id. In contrast, the Keshbro court noted that the record in City of St. Petersburg v. Kablinger, 730 So. 2d…