                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUIT
                                                 U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              October 7, 2005
                                 No. 05-13450               THOMAS K. KAHN
                             Non-Argument Calendar               CLERK
                           ________________________

                  D. C. Docket No. 04-01513-CV-ORL-22-JGG

LARRY B. TAGUE,
d.b.a. Orlando Sanford Aircraft Sales, Inc.,

                                                              Plaintiff-Appellant,

                                       versus

FLORIDA FISH AND WILDLIFE
CONSERVATION COMMISSION,
a subdivision of the State of Florida,
TONYA GIER, Officer, individually
and as agent and employee of the Florida
Fish and Wildlife Conservation Commission,

                                                              Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                 (October 7, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

       Larry B. Tague, doing business as Orlando Sanford Aircraft Sales, Inc., appeals

the district court’s dismissal of his complaint, filed pursuant to 42 U.S.C. § 1983,

against Tonya Gier, an officer with the Florida Fish and Wildlife Conservation

Commission (“FFWCC”).1 After thorough review, we affirm.

       In his complaint, Tague, who was piloting an amphibian seaplane for

commercial purposes during the relevant time period, asserted violations of his rights

under the Fourth and Fourteenth Amendments based on Gier’s enforcement of the

Florida Manatee Sanctuary Act (“FMSA”), § 370.12(2) Fla. Stat. (2005). On appeal,

Tague argues the district court erred by dismissing his complaint, after finding that

Gier was entitled to qualified immunity from suit because the law in Florida was not

clearly established on the issue of whether Tague’s seaplane was a “vessel,” within

the meaning of the FMSA. The district court determined that the definition of



       1
         Tague also sued the FFWCC for constitutional violations. The district court held that the
FFWCC enjoyed Eleventh Amendment protection against suits brought in federal court. The court
found that the FFWCC had not waived its Eleventh Amendment immunity and thus dismissed
Tague’s complaint as to that entity. The district court also declined to exercise supplemental
jurisdiction over Tague’s negligence claims against Gier and the FFWCC. In this appeal, Tague
challenges only the district court’s decision on Tague’s § 1983 action against Gier. Accordingly, he
has abandoned any challenge to the dismissal of the complaint as to FFWCC on Eleventh
Amendment grounds, as well as the district court’s decision not to exercise supplemental jurisdiction
over his other claims.

                                                 2
“vessel” as it existed at the time of Tague’s non-criminal citation was not clearly

established and, thus, Gier’s issuance of the citation, which occurred within the scope

of her discretionary authority as an FFWCC officer, did not amount to a violation of

clearly established constitutional rights.

      The defense of qualified immunity may be raised and addressed on a motion

to dismiss and will be granted if the “complaint fails to allege the violation of a

clearly established constitutional right.” Chesser v. Sparks, 248 F.3d 1117, 1121

(11th Cir. 2001) (quoting Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th

Cir. 1997)). “We review de novo a district court’s decision to grant or deny the

defense of qualified immunity on a motion to dismiss, accepting the factual

allegations in the complaint as true and drawing all reasonable inferences in the

plaintiff's favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003).

      Qualified immunity protects government officials performing discretionary

functions from liability if their conduct does not violate “clearly established statutory

or constitutional rights of which a reasonable person would have known.” Hope v.

Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 2515, 153 L. Ed. 2d 666 (2002) (citation

omitted). The burden rests on the plaintiff to show that qualified immunity is not

appropriate. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).




                                             3
      In its thorough Order, the district court analyzed the legislative history and

enactment of the FMSA; analogous provisions of the Florida Vessel Safety Law

(“FVSL”), Fla. Stat. § 327.02; the accompanying Florida Administrative Code

sections relevant to the FMSA and FVSL; and the Florida Constitution. The district

court concluded that these sources did not provide a definition of vessel sufficient to

exempt Tague’s seaplane. Applying our decisions in Dalrymple and Storck v. City

of Coral Springs, 354 F.3d 1307, 1313-14 (11th Cir. 2003), the court concluded that

Gier was entitled to qualified immunity from suit. Based on our thorough review, we

agree and affirm based on the well-reasoned opinion of the district court.

      AFFIRMED.




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