The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

THE NEXT CASE IS CITY OF ST. PETERSBURG VERSUS CAB LICK -- KABLINGER.

AS IN THE PREVIOUS CASE, COUNSEL, YOU HAVE 15 MINUTES TO THE SIDE AND PETITIONERS, YOU HAVE ASKED FOR 12 MINUTES, WITH THREE MINUTES' REBUTTAL.

YOUR HONOR, BEFORE I BEGIN MY ARGUMENT, I AM ROBERT H FREILICH, PROFFER FREILICH. I WOULD JUST ASK FOR THE COURT'S INDULGENCE IF I MIGHT NOT HAVE FIVE ADDITIONAL MINUTES.

THAT HAS BEEN CONVEYED. COUNSEL, WE UNDERSTAND THE CONCERNS, BUT WE, ALSO, HAVE SOME CONCERNS THAT WE MUST ADDRESS, AND SO IT WILL REMAIN 15 MINUTES TO THE SIDE.

IT WAS JUST THAT WE HAVE TO -- WE HAVE TAKEN ON THE BURDEN OF SHOWING THAT IT WAS NOT A TAKING, AS WELL AS THE NUISANCE EXCEPTION, SO WE HAVE TWO MAJOR CONSTITUTIONAL ISSUES TO ARGUE, AND THAT WAS THE REASON FOR IT.

THANK YOU.

MAY IT PLEASE THE COURT.

WELL, ARE WE HERE ON THE CONSTITUTIONALISHS?

YES.

I ASK YOU THE SAME QUESTION THAT WAS ASKED ON THE PREVIOUS CASE.

YES.

HAS THIS BEEN CHALLENGED BELOW, THE CONSTITUTIONALITY OF EITHER THE STATUTE OR THE ORDINANCE?

NO. I THINK IT IS VERY, VERY CLEAR THAT THIS CASE CAME UP WITH THE NUISANCE ABATEMENT BOARD ORDER, CLOSING THE PREMISE, AFTER A FINDING OF MULTIPLE ARRESTS ON THE PROPERTY, OF WHICH THE OWNER HAD KNOWLEDGE, AN ARRESTS OCCURRING IN THE PROPERTY, WHICH WE HAVE CONTESTED THE FINDINGS OF FACTS OF THE PETITIONER ALL ALONG ON THIS CASE, AND WHAT HAPPENED WAS IT WAS THEN APPEALED TO THE CIRCUIT COURT ON CIRSRUAR. IT WAS FOUND TO BE RENEWED BY THE EVIDENCE, THAT THE EVIDENCE WAS SUBSTANTIAL AND COMPETENT, AND THAT THE REMEDY WAS APPROPRIATE OF CLOSURE, AFTER ALL OF THESE INCIDENTS AND TWO COCAINE ARRESTS AND CONVICTIONS, SO ONE OF THE THING THAT IS IS IMPORTANT, HERE, AND IT IS NOT JUST AS JUSTICE PARIENTE SAID, TWO ISOLATED COCAINE INCIDENTS. THERE IS A SERIES OF MULTIPLE, THE AFFIDAVITS AND THE PROOF, AND THERE WAS NO EVIDENCE SUBMITTED AT ALL BY EITHER THE OWNER OR BY ANY OF HIS AGENTS.

BUT WHAT DO YOU SAY TO THIS IDEA THAT THERE SHOULD BE SOME INCREMENTAL STEPS THAT A CITY OR A MUNICIPALITY OR A GOVERNMENTAL ENTITY TAKES BEFORE THE DRASTIC REMEDY OF CLOSURE?

OKAY. WELL, TWO THINGS. JUST TO COMPLETE THE FIRST QUESTION, I WILL GET TO YOUR QUESTION. THE FIRST QUESTION ASKED IS WAS THERE A CHALLENGE MADE? THEY NEVER REPEALED THE CIRCUIT COURT FINDINGS OF REASONABLENESS OR OF THE REMEDY. AND THREE AND-A-HALF YEARS WENT BY, AND THEN SUDDENLY THEY BRING ON AN INVERSE CONDEMNATION ACTION. AFTER THE CLOSURE IS ALREADY TAKING PLACE, THE ONE YEAR, IT IS GONE, THE PLACE IS BACK OPEN AGAIN. THEY BRING ON THE ACTION. NOW, I CITE TO YOU IN THE -- IN OUR BRIEF, THAT UNDER THE EXACT IDENTICAL CIRCUMSTANCES, WHICH I ARGUED TO THE SUPREME COURT OF CALIFORNIA, IT IS CALLED HENSLER VERSUS THE CITY OF GLENNDALE, THEY SAID THAT ALL CHALLENGES TO THE CONSTITUTIONALITY OF THE STATUTE OR THE ORDINANCE OR TO HOW IT IS APPLIED MUST, ALSO, BE BROUGHT IN THAT FIRST APPEAL FROM THE NAB ORDER, AND THAT THE FAILURE TO DO THAT RESULTED IN THREE SPECIFIC VIOLATIONS. NUMBER ONE, STATUTE OF LIMITATIONS. THERE IS A 30-DAY STATUTE OF LIMITATIONS IN THIS STATUTE. THAT RELATES TO BRINGING ALL OF THE CLAIMS. SECONDLY, IT IS REYS JUDICADA, BECAUSE THE FINDINGS WHICH WERE NEVER APPEALED TO THE DCA ARE FINDINGS THAT THERE WAS A PUBLIC NEWS AND AND THAT THE REMEDY WAS APPROPRIATE AND THAT THERE WAS NO ATTACK ON CONSTITUTIONALITY, AND THIRDLY, WHICH IS MOST IMPORTANT, I THINK, FROM THIS PARTICULAR PERSPECTIVE, IS THE FACT THAT THE EARLIER FINDING AND CASE NOW RESULTS IN A SPLIT CAUSE OF ACTION, BECAUSE THESE CLEARLY, THIS INVERSE CONDEMNATION CLAIM, COULD CLEARLY HAVE BEEN BROUGHT AT THE SAME TIME AND WITH THE CERCIARY, AND THE POINT WAS YOU CANNOT SPLIT A CAUSE OF ACTION THAT IS BASED UPON THE SAME FACTS AND SAME TRANSACTION AND BRING IT LATER. THAT IS EXACTLY WHAT HENSLEY DECIDED.

NOW, THE DISTRICT COURT DIDN'T RULE OF ANY OF THOSE ISSUES.

BECAUSE THEY WERE NEVER BROUGHT UP. THE ORIGINAL ONE, RIGHT, WAS NEVER BROUGHT UP. NOW, THE SECOND CASE --

HOW ABOUT IN THE CASE THAT WE ARE HERE ON.

THE CASE THAT YOU HAD, RIGHT, THE DISTRICT COURT NEVER COMPLETELY IGNORED ALL OF THOSE. WE RAISED ALL OF THAT. AND ALL THEY SAID WAS, BASED ON BOWEN, OKAY, THIS IS A PER SE, ALL RIGHT, TAKING. THAT IS WHAT IT IS. BASED ON BOWEN. NOW, TO GET BACK TO JUSTICE PARIENTE, I THINK THAT, WHAT IS CLEAR, NUMBER ONE, IS THAT THE -- THERE IS A RANGE OF REMEDIES THAT THE NAB CAN APPLY, BUT AS IS IMPORTANT IS THAT IS REVIEWED BY THE CIRCUIT COURT AS TO THE APPROPRIATENESS OF THE REMEDY AND AS TO WHETHER THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE REMEDY. ON AN INVERSE CONDEMNATION CASE, THAT IS NOT THE ISSUE BEFORE THIS COURT. THE ISSUE IS NOT THE APPROPRIATENESS OF THE REMEDY. THEY ARE JUST CHALLENGING THE FACT THAT THERE WAS AN ECONOMIC LOSS, AND THE ECONOMIC LOSS WHICH RESULTED IN A TAKING, AND THE IMPORTANT THING ABOUT THIS IS THAT THE SUPREME COURT, JUST THIS TERM, ON MAY 24, 1999, DECIDED DEL MONTE DUNES, VERSUS THE CITY OF MONTERREY, AND IN THAT CASE, THIS IS WHAT THE COURT SAID. THE VERY ARGUMENT THAT THEY MAKE, THEIR ENTIRE ARGUMENT, IS RESOLVED AROUND THE -- IS REVOLVED AROUND THE PROPORTIONAL REMEDY, THAT IT WAS NOT PROPORTIONAL TO THE CRIME COMMITTED, AND THIS IS WHAT THE SUPREME COURT SAID, AND I FILED THE AMICUS BRIEF FOR THE AMERICAN PLANNING ASSOCIATION, AND THEY ADOPTED MY LANGUAGE, WHOLE CLOTH, FROM MY BRIEF, HAS NOT THIS IS WHAT IT READS. ALTHOUGH IN A GENERAL SENSE, CONCERNS FOR PROPORTIONALITY ANIMATE THE TAKINGS CLAUSE, WE HAVE NOT EXTENDED THE PROPORTIONALITY TEST OF DOLE AND, BEYOND THE -- DOLAN, BEYOND THE SPECIAL CONTEXT OF HIS ACTIONS. LAND USE, CONDITIONED ON APPROVAL ON DEVELOPMENT OF THE DEDICATION OF PROPERTY TO PUBLIC USE. YOU CAN'T SEE THIS BOARD, BECAUSE MY INSTRUCTIONS TO MAKE IT HUGE PRINT WERE NOT FOLLOWED BY THE PRINTER, BUT THERE ARE THREE TYPES OF TAKING CASES. PHYSICAL TAKINGS, TITLE, OR THERE ARE ACTION TAKINGS, AND THEN REGULATORY DENIAL CASES. AND WHAT THE SUPREME COURT SAID IS THE RULE APPLIED IN DOLAN CONSIDERS WHETHER DEDICATIONS DEMANDED AS CONDITIONS OF DEVELOPMENT ARE PROPORTIONAL TO THE DEVELOPMENT'S ANTICIPATED IMPACT. IT WAS NOT DESIGNED TO ADDRESS AND IS NOT READILY APPLICABLE TO THE MUCH DIFFERENT QUESTIONS ARISING WHEREAS HERE THE LANDOWNERS CHALLENGE IS BASED NOT ON EXCESSIVE EXACTIONS BUT ON THE DENIAL OF USE OF DEVELOPMENT. WE BELIEVE THAT THE TEST OF DOLAN IS OPPOSITE TO A CASE SUCH AS THIS ONE. IT IS NOT AN ISSUE, BASED ON A CONDEMNATION CASE OR VALUE. NOW, WHAT I THINK IS IMPORTANT, HERE, YOUR HONORS, IS THIS. IF WE CAN JUST GO TO THE SECOND BOARD, WHAT I THINK IS VERY, VERY IMPORTANT HERE IS THERE WAS NEVER A TAKING, HERE, IN THE FIRST PLACE. WHAT THIS BOWEN CASE IS WRONG ON TWO GROUNDS. FIRST OF ALL IT IS WRONG ON THE FINDING OF NUISANCE, BECAUSE THE BOWEN COURT SAID THAT THE ONLY NEWS AND THAT LUCAS ALLOWED, AND YOU HEARD IT IN THE PRIOR ARGUMENT, THE ONLY NUISANCE EXCEPTION WAS BASED ON COMMON LAW NUISANCE. THAT IS EXACTLY WRONG. WHAT THE DECISION OF THE COURT ACTUALLY SAYS IS VERY DIFFERENT. THE DECISION OF THE COURT, IN LUCAS, BASICALLY, SAYS THAT THE DECISION OF THE, WITH REGARD TO NUISANCE, APPLIES TO ALL STATUTORY, ALL STATUTORY NUISANCES, AS WELL AS ALL NUISANCES BASED UPON COMMON LAW.

THE LUCAS, DOES IT REQUIRE A TOTAL TAKING?

NOW, OKAY. SO I JUST WANTED TO EXPLAIN THAT. NOW, WITH REGARD TO THE TAKING, I DON'T THINK THERE IS ANY QUESTION OF THE NUISANCE EXCEPTION, BUT WE WANTED TO GO ON, BECAUSE I THINK THIS COURT TOOK THIS CASE TO REVIEW THE BOWEN DECISION. AND THE BOWEN DECISION IS WRONG. ABSOLUTELY WRONG ON TWO COUNTS. ONE IS THAT THEY LIMITED NUISANCE TO THE COMMON LAW, AND THAT IS WRONG, BECAUSE JUSTICE SCALIA AND JUSTICE KENNEDY SPECIFICALLY SAID IT CANNOT BE LIMITED TO COMMON LAW. IT IS RIGHT IN THE CASE IN LUCAS. IT APPLIES TO STATUTORY LEGISLATION, ADOPTED BY THE STATE, AS CHANGING CONDITIONS OCCUR IN SOCIETY. NOW THAT IS ONE. NUMBER TWO, IN ORDER TO HAVE A TAKING, YOU, LUCAS DOESN'T APPLY TO THIS CASE, BECAUSE 19 TIMES, THE SUPREME COURT IN LUCAS SAID, THAT A TAKING IS ONLY, A LUCAS TAKING, A PER SE TAKING, IS ONLY WHERE THE PROPERTY IS PERSONALITYNENTLY BARRED FOR THE LIFE OF THE -- PERMANENTLY BARRED FOR THE LIFE OF THE PROPERTY. PERMANENTLY BARRED.

YOU DO AGO ACKNOWLEDGE THAT THIS COURT SAID THERE IS SUCH A -- YOU DO ACKNOWLEDGE THAT THIS COURT SAID THAT THERE IS SUCH A THING IN AN INVERSE CONDEMNATION AS A TEMPORARY TAKING.

HERE IS WHAT A TEMPORARY TAKING IS. A TEMPORARY TAKING IS A PERMANENT TAKING. I AM NOT REFERRING, NOW, TO LUCAS. THIS IS NOT A LUCAS CASE, SO THERE IS SOME VALUE --

THIS COURT THAT JUSTICE GRIMES WROTE, REFER TO THAT CASE AND TELL ME WHAT IT MEANS.

WHAT IT MEANS, BASICALLY, IS THAT IF IT IS NOT AN ALL-USE, ALL PERMANENT LOSS OF PROPERTY, IT IS NOT A LUCAS PER SE TAKE. IT FALLS UNDER PENN CENTRAL AND UNDER AKINS. IT BASICALLY SAYS THAT WE HAVE TO MEASURE THE KRARCKTER -- THE CHARACTER OF THE ACTION, THE GOVERNMENTAL ACTION, AND LEGITIMATE STATUS, VERSUS ECONOMIC DEPRIVATION OF THE PROPERTY, AND THE IMPORTANT POINT IS THAT THE COURTS HAVE SAID, AGAIN AND AGAIN, THAT SIMPLY A REGULATION, WHICH TEMPORARILY REGULATES PROPERTY, DOES NOT MEAN IT IS A TEMPORARY TAKING.

SO THE FIRST ENGLISH CASE, YOU ARE READING IT VERY NARROWLY, TO ONLY APPLY WHERE A REGULATION IS THEREAFTER INVALIDATED? IS THAT YOUR --.

NO. NOT WITH THE REGULATION INVALIDATED. WHEN, ON THE REMAND FROM FIRST ENGLISH TO THE CALIFORNIA COURT OF APPEALS, THE CALIFORNIA COURT OF APPEALS SAID THAT THE FIVE-YEAR INTERIM ORDINANCE, RIGHT, PREVENTING ALL USE OF THE PROPERTY, WAS NOT A TAKING. BECAUSE IT WAS ONLY A TEMPORARY REGULATION, AND THEREFORE DID NOT, WHEN YOU LOOK AT THE ENTIRETY OF THE PROPERTY, WHICH YOU MUST DO UNDER PENN CENTRAL AND UNDER AIKINS.

IS IT YOUR POSITION THAT PENN CENTRAL WAS THE PROPER ANALYSIS?

CORRECT. IT IS THE PENN CENTRAL ANALYSIS. CORRECT.

IT IS YOUR POSITION THAT PENN CENTRAL IS THE PROPER ANALYSIS AND LUCAS WAS NOT AND THE DISTRICT COURT WAS WRONG IN USING LUCAS.

RIGHT. IN FACT BOWEN --

WHEN YOU GET THE ELEMENTS THAT YOU USE TO DETERMINE PENN CENTRAL, THEN WHEN YOU GET AN ORDINANCE THAT IS DRACONIAN IN ITS EFFECT, HOW DO YOU ADDRESS THAT? UNDER THE PENN CENTRAL SITUATION. ONE CASE, AND YOU CLOSE THE MAN DOWN FOR A YEAR? ED IS SOMETHING WRONG WITH THAT SOME A WELL, LET ME JUST INDICATE TO YOU WHAT THE COURTS HAVE SAID, AND, FLORIDA, IS YOU HAVE, AGAIN AND AGAIN, APPROVED INTERIM DEVELOPMENT ORDINANCES OR MORATORIUM THAT LAST UP TO 24 MONTHS, AND THEY PROSCRIBE ALL USE OF THE PROPERTY FOR 24 MONTHS, BECAUSE THE ENTIRETY RULE OF PENN CENTRAL AND OF FIRST ENGLISH SAID THAT YOU HAVE TO LOOK AT THE EXTENT OF THE DEPRIVATION VERSUS THE TEMPORARY VERSUS THE ENTIRETY, TO FIND THAT THERE IS A TAKING IN THE FIRST PLACE. THAT IS THE IMPORTANT LANGUAGE THAT COUNSEL HAS NEVER REFERRED TO YOU. NOR IN THE EARLIER CASE. WHAT THE COURT SAID, WHAT THE COURT SAID IN FIRST ENGLISH'S, IT IS ONLY A TEMPORARY TAKING, IF WE HAVE FOUND THAT A TAKING HAS OCCURRED IN THE FIRST PLACE, USING PENN CENTRAL AND AGINS TEST. NOW, THE WOODBURY CASE SPECIFICALLY HAD BEFORE THEM A TWO-YEAR MORATORIUM ON A -- ON THREE INTERCHANGES, WHICH IS A COMMERCIAL PROPERTY, UNTIL THE CITY COULD DECIDE WHERE THE INTERCHANGES WOULD BE LOCATED. THE CITY CONCEDED THAT ALL USE OF THE PROPERTY WAS FORECLOSED FOR THE TWO-YEAR PERIOD OF THE INTERIM ORDINANCE. THE ARGUMENT OF THE TRIAL COURT HELD THAT WAS A LUCAS TAKE FOR THE TWO-YEAR PERIOD. THE COURT OF APPEALS AND THE SUPREME COURT OF MINNESOTA SAID NO. IT IS NOT A TAKING. BECAUSE LOOKING AT THE 24 MONTHS VERSUS THE ENTIRETY OF TIME OF THE TAKING, THAT IS NOT A DEPRIVATION OF ALL OR SUBSTANTIALLY ALL USE, AS UNDERSTOOD BY PENN CENTRAL. IN FACT, IN CONCRETE PIPE, THE SUPREME COURT SAID YOU DON'T HAVE A PENN CENTRAL OR AN AGINS TAKING, EVEN FOR A 78% DEPRIVATION, OVER THE LIFE OF THE PROPERTY, NOR FOR 91.5% OVER THE LIFE OF THE PROPERTY, CITING HADICHECK.

YOU ARE INTO YOUR REBUTTAL.

I AM SORRY. MY PAPERS ARE COVERING THE LIGHT. ' I FIGURED THAT.

I WILL HOLD BACK.

THANK YOU VERY MUCH. MR. WILLIS.

THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT. MY NAME IS ROBERT WILLIS. I REPRESENT THE APPELLEE, JOSEPH L KABLINGER.

COULD YOU ADDRESS THE POINT THAT REALLY CONCERNS ME, AND MAYBE IT IS WHAT WHAT MR. FREILICH IS TALKING ABOUT, IS HERE YOU HAD THESE PROCEEDINGS CONCERNING THE NUISANCE OCCURRING SOME THREE AND-A-HALF YEARS BEFORE YOU BRING THE INVERSE CONDEMNATION ACTION, AND THAT IS CHALLENGED AS TO THE REASONABLENESS OF WHETHER THAT YOUR CLIENT'S BUSINESS COULD BE SHUT DOWN FOR A PERIOD OF TIME, AND THAT IS DECIDED, AND NOW WE ARE THREE AND-A-HALF YEARS LATER, AND ALL OF A SUDDEN THERE IS A LAWSUIT FROM THIS THREE AND-A-HALF YEAR, THIS EARLIER ACTION. IS THERE SOME PRINCIPLE THAT SAYS THAT WHETHER IT IS RACE JUDY CAD AN OR -- RAES JUDIC A OR SPLITTING SOME CAUSE OF ACTION, THAT SAYS THAT, IF YOU ARE GOING TO CHALLENGE THE CITY AS BEING UNREASONABLE AND THAT THERE WASN'T A PUBLIC NUISANCE AND THAT YOUR OPERATION DID NOT CONSTITUTE A PUBLIC NUISANCE, THAT HAS TO BE DONE AT THE -- AT THAT TIME, AND YOU JUST CAN'T LATER ON COME IN AND SAY, AFTER CHALLENGING IT UNSUCCESSFULLY, NOW I WANT TO GET MONEY FOR WHAT THE COURT HAS ALREADY FOUND WAS A LEGITIMATE EXERCISE OF THE POLICE POWER?

YES. WELL, FIRST OF ALL, IN PART, RESPONSE TO JUSTICE SHAW, AS WELL, I THINK IT IS IMPORTANT TO REALIZE THAT THE APPLICABLE CASE LUCAS WAS A SITUATION WHERE THE PROPERTY OWNER THERE DID NOT CHALLENGE THE VALIDITY OF THE UNDERLYING STATUTE AT ALL.

WELL ARE NOT -- BUT THERE WE ARE TALKING ABOUT -- WE ARE TALKING ABOUT A -- SOMETHING -- THIS IS -- WHAT THE UNDERLYING PROBLEM HERE WAS NUISANCE, AND NOW WE ARE GETTING BACK TO THE LUCAS EXCEPTION THAT YOU CAN'T OPERATE PUBLIC NUISANCES, SO I AM NOT -- I UNDERSTAND THERE COULD AND VALID REGULATION THAT YOU, THEN, GET COMPENSATION FOR, BUT WE ARE NOW TALKING ABOUT THE NARROW ISSUE OF WHEN YOUR PROPERTY WAS CLOSED NOT BECAUSE IT WAS IN A FLOOD ZONE OR BECAUSE THEY WERE, YOU KNOW, NEEDED TO DO URBAN REDEVELOPMENT, AND THEY WERE GOING TO -- WANTED CLEAR THE WAY, BUT BECAUSE THEY SAID YOUR PROPERTY CONSTITUTED PUBLIC NUISANCE. THE -- IT WAS CLOSED FOR A YEAR. THE CIRCUIT COURT REVIEWED THAT. FOUND THAT TO BE REASONABLE. NOT EXCESSIVE UNDER THE CIRCUMSTANCES. SO ISN'T -- DOESN'T THAT, THEN, FIT IN WITHIN THE LUCAS EXCEPTION THAT YOU CAN'T RECEIVE COMPENSATION FOR OPERATING PROPERTY AS A PUBLIC NUISANCE?

FIRST, YOUR HONOR, THE SCOPE OF THE APPEAL, AND THE AUTHORITY OF THE TRIAL COURT, WAS TO ADDRESS WHETHER OR NOT THERE WERE SPECIFIC DRUG TRANSACTIONS, SUFFICIENT TO COMPLY WITH THE STATUTE. IN OTHER WORDS, IN THIS INSTANCE, THERE WERE DRUG PURCHASES, WHERE THE CONTROLLED SUBSTANCE CAME OFF THE PROPERTY, AND, TWO OF THE FOUR TRANSACTIONS TOOK PLACE ON THE SIDEWALK OF THE PREMIUM ISZ, SO -- OF THE PREMISE, SO THERE IS A COMPLETELY DIFFERENT SCOPE OF REVIEW FOR A CIRCUIT COURT REVIEWING AN APPEAL FROM THE NUISANCE ABATEMENT BOARD.

BUT AREN'T YOU SAYING AT THAT POINT, IF THIS NUISANCE ORDINANCE, WHICH IS PART OF A STATE STATUTE AND THERE ARE LOCAL NUISANCE ABATEMENT BOARDS AROUND THE STATE, HERE, THAT IF IT, THE PROCEDURES, AND I THINK JUSTICE SHAW USED THE WORD DRACONIAN, THAT IF THEY ARE DRACONIAN, IN THAT THEY ALLOW FOR CLOSING A BUSINESS THAT REALLY SHOULDN'T BE CLOSED UNDER PUBLIC NUISANCE PRINCIPLES, THAT THAT CHALLENGE SHOULD BE MADE THAT THE STATUTE IS BEING UNCONSTITUTIONALLY APPLIED TO YOUR CLIENT, THEN AND THERE, SO THAT THE REMEDY MAY BE THE CIRCUIT COURT SAYS, YOU KNOW, YOU ARE RIGHT. WE ARE NOT GOING TO CLOSE THIS DOWN. THE SHOWING HASN'T BEEN MADE. OR WE ARE GOING TO DO SOMETHING WITH THE STATUTE. BUT IF THE PROBLEMS MAY BE WITH THE STATUTE, BUT I AM CONCERNED THAT WHAT WE ARE DOING IS SAYING WE CAN LET THE STATUTE GO ALONG AND MAYBE NOT TO YOUR PROPERTY OWNER BUT PEOPLE THAT HAVE UNPROFITABLE BUSINESSES THAT ARE REAL NUZ ANSWER, THEY MIGHT AS -- NUISANCES, THEY MIGHT AS WELL AS AGREE TO THIS AND SAY I WILL BE ABLE TO MAKE ME MONEY LATER ON IN SAYING THAT THE GOVERNMENT DID A TAKING, AND THAT IS WHAT IT IS GOING TO SOMEBODY.

THAT IS WHEN THE BOWEN CASE SHOWED A KNOWN PROPENSITY FOR A TAKING, AND THAT HAD IN IT A PROVISION FOR THE APPEAL TO THE FLORIDA SUPREME COURT AND THE U.S. SUPREME COURT AND THAT WAS DENIED AND WAS PART OF THE DELAY, BUT I, ALSO, THINK IT IS VERY IMPORTANT FOR THERE TO BE NO MISUNDERSTANDING THAT THE APPELLEE IN NO WAY SAYS THAT NUISANCES SHOULD NOT BE ABATED. WE RECOGNIZE THAT, UNDER LUCAS THAT, THE STATE CONTINUES TO HAVE THE RIGHT TO ABATE NUISANCES. THAT IS NOT WHAT HAPPENED, THOUGH, IN THIS CASE. WHAT HAPPENED IN THIS CASE WAS THAT THERE WAS A DENIAL OF ALL ECONOMIC USE AND BENEFIT. THAT THERE WAS NOT A TARGETED ACTION TAKEN AGAINST THE PROPERTY OWNER.

OKAY. BUT MAYBE I AM GOING TO GO AROUND THIS AND TRY IT ONE MORE TIME. BUT IF THE ARGUMENT IS THAT, WHEN THE CITY IS OPERATING UNDER A VALID STATUTE, THAT ALLOWS THAT TO HAPPEN, SHOULDN'T THE CHALLENGE, THEN, BE TO THE STATUTE, TO SAY THAT THAT STATUTE, IN ITS APPLICATION TO YOUR CLIENT, IS UNCONSTITUTIONAL, BECAUSE IT IS GOING TO DEPRIVE HIM OF ALL USE? AND THEN THE DETERMINATION IS MADE ABOUT THE APPLICATION OF THE STATUTE TO YOUR CLIENT, NOT, LET'S LET IT GO. LET'S, AND THEN SUBSEQUENTLY SAY I REALLY WASN'T A NUISANCE, AND THIS CLOSING FOR A YEAR WAS OVERBROAD? I MEAN, THERE WAS -- THERE IS NOT MANY BUT SEVERAL NUISANCE CASES OUT THERE. SOME UPHOLD THE INJUNCTION. SOME SET THEM ASIDE. AND UNDER YOUR VIEW, IT WOULDN'T REALLY MATTER WHAT HAD HAPPENED TO THE CHALLENGE, AS TO HOW THE CITY ACTED, YOU COULD JUST COME IN AND, YOU KNOW, YEARS LATER, AND SUE FOR INVERSE CONDEMNATION.

I GUESS ONE VISUAL WAY OF THINKING OF IT WOULD BE A DIALOGUE RAM, AND THE REMEDIES WHICH -- A DIAGRAM, AND THE REMEDIES WHICH ARE SOUGHT HERE ARE NOT NUISANCE ACTIVITIES OR WHETHER OR NOT THEY WERE IN EXISTENCE BY THE CIRCUIT COURT, BUT ANOTHER PROCEEDING WAS BROUGHT THAT DESCRIBES THE AREA, WHICH IS OF A LARGER CLOSURE, AND THAT IS THE DENIAL OF ALL USES, AND THAT IS AND THOSE ARE SEPARATE QUESTIONS FOR THE COURTS, AND THERE ARE STATUTE OF LIMITATIONS THAT RUN ON THOSE PERIODS OF TIME, AND THERE WAS AN ACTION BROUGHT WITHIN THAT PERIOD OF TIME.

WHY ISN'T THE CALIFORNIA, AND I AM NOT SURE THE NAME OF THE CASE THAT WAS MENTIONED, BUT WHY AREN'T THOSE GOOD IDEAS, THAT IS TO INCLUDE THAT THERE SHOOT NOT BE SPLIT -- THAT THERE SHOULDN'T BE SPLIT AGO CAUSE OF ACTION, THAT THE CHALLENGE SHOULD BE IN THE ACTION OF WHETHER OR NOT A NUISANCE EXIST OR IN OTHER WORDS IT IS REYS ADJUDICADA, AND THAT BALANCES THE RATES OF PROPERTY OWNERS, AND I AM SYMPATHETIC TO WHAT YOU ARE TALKING ABOUT HERE, BUT BALANCES THOSE RIGHTS AS TO THE RIGHTS OF GOVERNMENT NOT TO HAVE PUBLIC NUISANCES OPERATING WITHIN NEIGHBORHOODS THAT NEVADA A RIGHT TO CONTROL.

-- THAT THEY HAVE A RIGHT TO CONTROL.

AGAIN, THERE IS NO EFFORT HERE TO LIMIT THE GOVERNMENT'S ABATEMENT OF NUISANCES IN ANY PROCEEDING, AND AS FAR AS BRINGING THEM ALL IN ONE ISSUE, I SUPPOSE THAT --

BUT THERE IS A PRACTICAL -- ISN'T THERE A PRACTICAL LIMITATION, IF WE SAY, SURE, DOUCK -- YOU CAN DO IT. CLOSE MY PROPERTY DOWN FOR FIVE YEARS. I WILL DO IT. AND THEN THE SIXTH YEAR, GO PAY ME FOR THE PAST FIVE YEARS, AND THAT IS GOING TO HAMSTRING THE GOVERNMENTS FROM ACTING IN THIS WAY.

THAT IS ALSO GOING TO GO TO THE DIFFERENCE OF ME TELLING THE GOVERNMENT THAT I WILL NOT OBTO OR PROCEED WITH LITIGATION TO OBTO THEM PUTTING A ROAD THROUGH MY FARM, BUT WHEN THE ROAD GOES THROUGH, I SHOULD STILL BE ABLE TO GET THE GOVERNMENT TO COMPENSATE ME FOR THE MAKING. -- FOR THE TAKING.

GIVE ME UNDERSTANDING, AND I KNOW WE ARE IN YOUR TIME, AN UNDERSTANDING OF THE PROCEDURAL STEP THAT WENT ON HERE. THE CITY CAME IN, THROUGH ITS ABATEMENT BOARD. CORRECT?

CORRECT.

WHAT DID THE DECIDE CITY DO?

IN THIS -- WHAT DID THE CITY DO?

IN THIS ACTION, YOUR HONOR, AND I THINK IT IS VERY SIGNIFICANT, THAT AFTER THE APPELLANT HAS ESTABLISHED THAT ALL ECONOMIC USE HAVE BEEN DENIED OF THE PROPERTY, BY VIRTUE OF THE EXPLICIT LANGUAGE OF THE ORDER, THAT THE CITY OF ST. PETERSBURG CAN AVOID COMPENSATION ONLY IF THE CITY CAN ESTABLISH THE NUISANCE EXCEPTION. AND SIGNIFICANTLY, AS IN BOWEN, THE CITY IN THIS CASE, CAN OFFER NO FACTS SPECIFICALLY IN THE RECORD TO ESTABLISH THAT ALL OF THE POSSIBLE RENTAL AND BUSINESS USES THAT WERE PROHIBITED UNDER THE ORDER WERE CONSTITUTED NUISANCES TO BE ABATED.

BUT WHAT I AM INTERESTED, REALLY, IN, IS THAT YOU WENT TO AN ADMINISTRATIVE PROCEEDING BACK WHEN THE ORDER CAME DOWN FROM THE ABATEMENT BOARD?

YES, YOUR HONOR. I AM SORRY I WAS SIRT TUT US IN ANSWERING YOUR QUESTION, BUT WHAT I WAS TRYING TO EMPHASIZE WAS THAT, IT IS SIGNIFICANT THAT THE FACTS OF THIS CASE SHOW HOW IT EVOLVED, AND WHAT WE HAVE BEFORE THE COURT ARE THREE AFFIDAVITS FILED BY THE CITY. ONE THAT CONTAINS ALTERNATIVE USES UNDER ZONING AND ONE THAT DISCUSSES VALUE AND ONE THAT TALKS ABOUT MODIFICATION POSSIBILITIES. ALL OF WHICH ARE NOT -- ARE LEGALLY INSUFFICIENT OR HAVE BEEN DISPROVED BY UNDISPUTED FACTS. THE ONLY OTHER FACTS AS TO THE NUISANCE HERE ARE THE PROCEDURE WHERE THE NUISANCE ABATEMENT BOARD HEARD AND ENTERED AN ORDER IN WHICH, IN JANUARY OF 1993, THERE WERE TWO DRUG PURCHASES, ONE WITH A CONTROLLED SUBSTANCE CAME OFF THE PROPERTY AND WAS BROUGHT ON TO THE SIDEWALK IN FRONT OF THE BUILDING, AND THEN APPROXIMATELY FOUR OR FIVE MONTHS LATER, THERE WERE TWO DRUG TRANSACTIONS, IN ONE ROOM AT ONE TIME, AND AT NO TIME WAS THERE ANY SUGGESTION THAT MR. KABLINGER OR ANYONE INVOLVED WITH THE CORPORATION WAS INVOLVED IN THESE $10 DRUG TRANSACTIONS. AND IT IS, ALSO --

BUT YOU GO TO A PROCEEDING BEFORE A HEARING OFFICER?

IN FRONT OF THE NUISANCE ABATEMENT BOARD.

OKAY. AFTER THE NUISANCE ABATEMENT BOARD, WHERE DID YOU DOE? -- GO?

THEN THERE WAS AN APPEAL TO THE CIRCUIT COURT, UNDER ITS APPELLATE PROVISION.

SO YOU WENT FROM THE NUISANCE ABATEMENT BOARD TO THE CIRCUIT COURT OF APPEAL.

YES.

TO APPEAL AN ISSUE OF WHETHER THERE WAS A SUFFICIENT SHOWING TO CLOSE DOWN THE MOTEL?

YES. AND THAT IS THE SEPARATE ISSUE, I WOULD MAINTAIN, THEN, TO, NOW THAT I AM GOING TO HAVE TO REMAIN CLOSED, WHETHER OR NOT A TAKING OCCURRED.

WHAT WOULD BE THE LIMITATION ON THE TIME THAT YOU COULD COME IN AFTER YOUR INITIAL HEARING AND ASK FOR COMPENSATION?

THE STATUTE OF LIMITATIONS PROVISION.

IS THAT STATUTE OF LIMITATIONS HAD? ANYTHING? WOULD STOP YOU FROM DOWN THE ROAD COMING?

IT WOULD BE THE STATUTE OF LIMITATIONS PERIOD, YOUR HONOR.

THAT WILL BE IT.

AND IF THE LEGISLATURE FEELS THAT THAT IS UNFAIR, THEN THAT SHOULD BE CHANGED, BUT IT IS VERY -- IT WOULD BE AN UNFAIR PROCEDURE TO HAVE A PROPERTY OWNER WATCHING THE BOWEN CASE, SUDDENLY LEARN THAT HE HAD A COMPENSABLE RIGHT AND STILL HAVE THE RIGHT TO BRING THAT ACTION, BECAUSE THE STATUTE OF LIMITATIONS PERIOD IS NOT RUN, AND THEN BAR IT. AND INDEED, THERE IS -- THESE ARE VERY LIMITED COMPLETE CLOSURE CASES. IT IS ACTUALLY QUITE REMARKABLE, WHEN YOU CONSIDER THE NUMBER OF NUISANCE ABATEMENT BOARDS AROUND THE STATE. THE ONE REMAINING NUISANCE ABATEMENT BOARD CASE IN OUR CIRCUIT THAT I AM FAMILIAR WITH, FLAMMER, WHICH IS ON APPEAL RIGHT NOW TO THE SECOND DISTRICT OF COURT OF APPEAL THAT, ISSUE AS TO WHETHER OR NOT THE STATUTE OF LIMITATIONS BARS ALL OR A PORTION OF HIS CLAIM HAS BEEN DISCUSSED. AND THAT, I SUPPOSE, WILL ULTIMATELY BE DECIDED. BUT, AGAIN --.

HOW LONG? FOUR YEARS? TWO YEARS?

MY RECOLLECTION IS A FOUR-YEAR STATUTE, ALTHOUGH IT IS SIGNIFICANT, AND I THINK THIS SHOWS THE BROAD PUBLIC SUPPORT OF THE BOWEN DECISION, AND I, ALSO, THINK IT EVIDENCES THE LEGISLATURE'S UNDERSTANDING OF THE REBUKE THAT THE JUDICIARY HAS GIVEN IN UPHOLDING THE JUST COMPENSATION CLAUSE THAT, SINCE THE BOWEN DECISION HAS BEEN RULED, THE 1991 STATUTE, WHICH WAS USED, WHICH --

IMMINENT DOMAIN STATUTE?

NO. -- EMINENT DOMAIN STATUTE?

NO. CHAPTER 83, YOUR HONOR, AS OPPOSED TO CHAPTER 73. THE STATUTE THAT WAS USED BY THE NUISANCE ABATEMENT BOARD IN THE CITY OF ST. PETERSBURG HAS BEEN AMENDED, AND IT HAS BEEN AMENDED FIVE TIMES. IN 1997 MOST SIGNIFICANTLY, IT WAS AMENDED TO PROVIDE AN OPPORTUNITY FOR ADMINISTRATIVE FINDS, SO UNDER THE LEGISLATIVE RUBRIC, THAT IS THE PREFERRED WAY, NOT THESE DRACONIAN MEASURES WHICH YOU TALK ABOUT, WHICH DENY A PROPERTY OWNER OF ALL ECONOMIC USE OF HIS PROPERTY. AGAIN, NOTHING HERE SUGGESTS THAT THE APPELLEE IN ANY WAY WAS INVOLVED IN THE IMPORTATION AND MANUFACTURER OF CONTROLLED SUBSTANCES. HE HAS NEVER ARGUED FOR AN APPEAL OF A CRIMINAL STATUTE. HE HAS NEVER CHALLENGED THE SOVEREIGN'S AUTHORITY TO ABATE NUISANCES, INCLUDING ILLEGAL CONDUCT UPON PROPERTY. HE CONTINUES THIS LITIGATION TO PROTECT THE IMPORTANT PUBLIC INTEREST OF THE JUST COMPENSATION CLAUSE.

BUT IT IS STILL AN ESTABLISHED FACT IN THIS RECORD THAT THE OPERATION OF YOUR CLIENT'S PROPERTY CONSTITUTED A PUBLIC NUISANCE. UNDER THE STATUTE. CORRECT? THAT IS THE UNDERLYING FACT, AND WE UPHOLD THE DECISION IN THE SECOND DISTRICT, WHAT WE ARE ESSENTIALLY SAYING IS WE ARE REREVIEWING THE UNDERLYING FACTS OF THE PRIOR DETERMINATION TO FIND THAT, IN FACT, IT DID NOT CONSTITUTE A PUBLIC NUISANCE. THAT IS WHAT WE WOULD HAVE TO DO, IN ORDER TO GET OUT FROM UNDER THE EXCEPTION THAT LUCAS SET FORTH TO SAY THAT YOU CAN NOT OPERATE A PUBLIC NUISANCE AND GET COMPENSATED.

YOUR HONOR, I -- YOU DON'T AGREE.

WHAT I -- NO. WHAT I WOULD SAY IS THAT IT, WHILE THERE IS NOT -- WHILE I AGREE THAT THERE IS NOT A CHALLENGE TO THE FINDING OF THE NUISANCE, IT IS CLEAR, AS IN LUCAS, AND AS THIS COURT HAS HELD ON OTHER OCCASIONS, THAT, UNDER LUCAS, THE COURT, ITSELF, CAN DO KNOW MORE THAN PROVIDE THE INJUNCTIVE RELIEF THAT PRIVATE LITIGANTS CAN HAVE. I AM THINKING OF JUSTICE ATKINS OPINION, FOR INSTANCE, IN ORLANDO SPORTS AUTHORITY, WHERE HE SAID, LOOK, MY NEIGHBOR CAN BE PRECLUDED FROM RUN AGO ROWDY BAR NEXT DOOR, BUT SIGNIFICANTLY THE ORDER CANNOT DENY ALL ECONOMIC USE OF THE PROPERTY, AND THAT IS WHAT WAS DONE HERE. A DENIAL OF ALL ECONOMIC USE. WE HAVE REQUESTED THE COURT TO AFFIRM THE DECISION. YES, YOUR HONOR.

YOUR TIME IS UP. I WILL ASK ONE MORE QUESTION.

DO YOU AGREE OR NOT THAT THIS IS A PROPER LUCAS TAKING?

IT IS A LUCAS CASE, YOUR HONOR. AND PENN CENTRAL, I GUESS, IS GETTING A FACE-LIFT HERE, BY LUCAS, JUST LIKE IT IS IN NEW YORK CITY. AND LUCAS IS WHERE WE SHOULD LOOK, NOT TO THE PENN CENTRAL TEST.

THANK YOU.

THANK YOU. REBUTTAL?

JUST A COUPLE OF POINTS HERE. NUMBER ONE, THE STATUTE OF LIMITATIONS PERIOD HERE IS 30 DAYS NOT FOUR YEARS. THE GENERAL FOUR-YEAR STATUTE ONLY APPLIES WITH THE CASE DOES NOT ARISE FROM AN ADMINISTRATIVE TRIBUNAL DECISION. THE STATUTE CLEARLY SAYS THAT, WHEN YOU ARE APPEALING FROM AN ADMINISTRATIVE TRIBUNAL DECISION, SUCH AS A NAB, THAT YOU HAVE 30 DAYS TO APPEAL TO THE CIRCUIT COURT, TO REVIEW THAT DECISION, INCLUDING WHETHER OR NOT IT WAS A NUISANCE OR WHETHER OR NOT THE STATUTE WAS CONSTITUTIONAL OR NOT, THAT IS APPLIED TO YOU, ASAP APPLIED, SO IT IS NOT A FOUR-YEAR STATUTE. THAT FOUR-YEAR STATUTE WOULD APPLY IF IT WERE SIMPLY THE CASE, SUCH AS A FICTIONAL INVASION, AS WAS POINTED OUT EARLIER, WHERE SOMEBODY BUILT A ROAD THROUGH MY PROPERTY. THEN I HAVE FOUR YEARS TO GO, BECAUSE THERE IS NO ADMINISTRATIVE REVIEW THAT, ON TAKING UP UNDER THE 30-DAYS STATUTE, BUT IF YOU READ THE HENSLEY VERSUS GLENNDALE CASE IN CALIFORNIA, THAT IS EXPRESSLY STATING THAT THE GENERAL STATUTE DOES NOT APPLY, WHEN THE ADMINISTRATIVE STATUTE IS 30 DAYS IN ITS ADMINISTRATIVE FINDING. SECONDLY WHAT I THINK IS INCREDIBLE ABOUT THIS CASE IS THE ADMISSION THAT THERE IS A PUBLIC NUISANCE THERE. IS AN ADMISSION, AND THE COURT ORDER SPECIFICALLY REJECTED EVERY ARGUMENT THAT THEY MADE. THE COURT, BASICALLY, FOUND THAT THERE WERE MORE THAN TWO OCCASIONS ON THE SITE FOR THE UNLAWFUL SALE OR DELIVERY OF CONTROLLED SUBSTANCES. IT, ALSO, APPROVED THE FACT THAT THE DETECTIVES INDICATED THERE WERE PURCHASES OF COCAINE MORE THAN TWO OCCASIONS AND THAT THERE WERE AMPLE NARCOTICS ACTIVITY ARRESTS IN, ON OR AROUND THE PROPERTY.

FROM WHAT ARE YOU READ SOMETHING.

FROM THE NEWS AND ABATEMENT BOARD AND CERTIFIED BY THE COURT, HAVING OTHERWISE CAREFULLY EXAMINED THE PETITION FOR WRIT AND THE APPENDIX AND THE RESPONSE AND THE REPLY, THE COURT FINDS PROCEDURAL DUE PROCESS WAS AFFORDED AND SUBSTANTIAL COMPETENT EVIDENCE IN THE RECORD TO SUPPORT THE DETERMINATION OF THE LOWER TRIBUNAL. I KNOW MY LIGHT IS ON, YOUR HONOR, BUT I WOULD JUST LIKE TO SAY ONE LAST THING, IF I MAY. WITH REGARD TO THE FACT THAT THIS IS A LUCAS CASE, THAT IS JUST ABSOLUTELY WRONG. LUCAS SAID 19 TIMES IT HAS TO BE A PERMANENT DEPRIVATION. IN THE WOODBURY CASE, I WOULD JUST LIKE TO READ YOU THE QUOTE. TO INVOKE THE TOTAL TAKINGS ANALYSIS OF LUCAS, TO A 24-MONTH MORATORIUM, RELIES EXCLUSIVELY ON THE STIPULATION THAT THE MORATORIUM DENIED ALL ECONOMICALLY VIABLE USE OF THE PROPERTY FROM 1988 TO 1990, TWO YEARS. WE INTERPRET THE PHRASE ALL ECONOMICALLY VIABLE USE FOR TWO YEARS, AS SIGNIFICANTLY DIFFERENT FROM ALL PERMANENT ECONOMICALLY VIABLE USE, AS ENUNCIATED IN LUCAS. THE TWO-YEAR DEPRIVATION IS QUALIFIED BY ITS DEFINED DURATION, AND IT, THIS IS SIGNIFICANTLY DIFFERENT FROM THE PRESUMMITTIVELY PERMANENT SOUTH CAROLINA REGULATION, WHICH IMPOSED PRO HIBATION ON -- PROHIBITION ON DEVELOPMENT OF THE COAST. WOODBURY'S VIOLATION WAS DELAYED NOT DESTROYED. ALL ECONOMICALLY VIABLE USE SHOWS AND RECOGNIZED THAT THE VIABILITY ECONOMISTS AT THE -- EXISTS AT THE MORATORIUM'S EX-PIERITION -- EXPIRATION. THERE WERE TWO SHOWN TO EXIST AT THE END OF THE TWO-YEAR PERIOD. NONE OF THAT HAS EVER BEEN CONTRADICTED.

THANK YOU. YOUR TIME IS UP. WE WILL HAD BEEN IN RECESS. BAILIFF: PLEASE RISE.