Odalvis Fernandez v. United States ( 2019 )


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  •           Case: 18-10305     Date Filed: 03/12/2019   Page: 1 of 18
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    No. 18-10305
    Non-Argument Calendar
    D.C. Docket No. 1:17-cv-21422-DPG
    ODALVIS FERNANDEZ,
    JULIO RODRIGUEZ,
    Plaintiffs - Appellants,
    versus
    UNITED STATES OF AMERICA,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Southern District of Florida
    (March 12, 2019)
    Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.
    PER CURIAM:
    Case: 18-10305          Date Filed: 03/12/2019     Page: 2 of 18
    This appeal concerns whether the United States is immune from suit based
    on Florida’s recreational use statute for an injury that occurred on an area made
    available to the public for recreational use without charge. Odalvis Fernandez and
    Julio Rodriguez were swimming near the island of Boca Chita Key in Biscayne
    National Park near Miami, Florida, when Fernandez injured her foot by stepping
    on a submerged piece of rebar. Fernandez and Rodriguez sued the United States
    for negligence under the Federal Tort Claims Act (“FTCA”). 1 The FTCA provides
    that the United States may be sued for actions in negligence if a private party
    would be subject to suit in the same circumstances. 
    28 U.S.C. § 1346
    (b)(1). The
    district court granted the United States’ motion to dismiss for lack of subject matter
    jurisdiction because Florida’s recreational use statute limits the liability of persons
    who make a portion of their property available for recreational use without charge.
    We agree with the district court and affirm.
    I.      BACKGROUND
    A. Factual Background and Procedural History.
    On July 12, 2015, Odalvis Fernandez and Julio Rodriguez traveled on their
    boat to Boca Chita Key, an island located in Biscayne National Park, near Miami,
    Florida. They anchored the boat in the waters of Biscayne Bay near Boca Chita
    1
    Rodriguez brought a related claim for loss of consortium that is not at issue in this
    appeal.
    2
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    Key and went swimming in the designated swimming area, which was marked by
    white buoys with “a red symbol—a diamond shape with an X inside—and lettering
    designating the beach as a swim area and prohibiting marine vessels from
    entering.” While they were swimming, Fernandez injured her foot by stepping on a
    piece of rebar protruding from a submerged piece of concrete.
    Biscayne National Park is owned by the United States and managed by the
    National Park Service. The National Park Service does not charge for entry into
    Biscayne National Park but charges a $25.00 fee for camping or docking at Boca
    Chita Key and Elliott Key, except during the summer when the fees are waived.
    The National Park Service also rents the pavilion on Boca Chita Key for a fee of
    $100.00 for four hours. The National Park Service charges no other fees in
    Biscayne National Park.
    Fernandez and Rodriguez filed their amended complaint against the United
    States on August 4, 2017, alleging negligence under the FTCA. The United States
    moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of
    subject matter jurisdiction, arguing that it is immune from liability under Florida’s
    recreational use statute, 
    Fla. Stat. § 375.251
    , because Fernandez’s injury occurred
    in the designated swimming area of the park, which is made available to the public
    free of charge. In response, Fernandez and Rodriguez argued that the United States
    is not immune from liability because the National Park Service charges fees for
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    camping and docking in Biscayne National Park. The district court granted
    summary judgment in favor of the United States, concluding that “a plain reading
    of the statute as a whole suggests that liability will not attach unless the injury
    occurred in a distinct area where revenue is derived from patronage.” Fernandez
    and Rodriguez appealed.
    B. The FTCA and Florida’s Recreational Use Statute.
    The FTCA provides that the United States district courts have jurisdiction
    over damages claims against the United States alleging injury caused by “the
    negligent or wrongful act or omission of any employee of the Government while
    acting within the scope of his office or employment, under circumstances where
    the United States, if a private person, would be liable to the claimant in accordance
    with the law of the place where the act or omission occurred.” 
    28 U.S.C. § 1346
    (b)(1). Therefore, to determine whether the United States has waived its
    sovereign immunity under the FTCA, we must look to the law of the State where
    the act or omission giving rise to the litigation occurred. Daniels v. United States,
    
    704 F.2d 587
    , 591 (11th Cir. 1983); 
    28 U.S.C. § 2674
    . In this case, we look to
    Florida law.
    Florida’s recreational use statute, 
    Fla. Stat. § 375.251
    , generally limits the
    liability of private persons who make land, water, and park areas available to the
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    public for recreational use without charge. 
    Fla. Stat. § 375.251
    . Specifically,
    section 375.251 currently provides, in relevant part: 2
    (1) The purpose of this section is to encourage persons to make land,
    water areas, and park areas available to the public for outdoor
    recreational purposes by limiting their liability to persons using these
    areas and to third persons who may be damaged by the acts or
    omissions of persons using these areas.
    (2)(a) An owner or lessee who provides the public with an area for
    outdoor recreational purposes owes no duty of care to keep that area
    safe for entry or use by others, or to give warning to persons entering
    or going on that area of any hazardous conditions, structures, or
    activities on the area. An owner or lessee who provides the public
    with an area for outdoor recreational purposes:
    1. Is not presumed to extend any assurance that the area is safe for
    any purpose;
    2. Does not incur any duty of care toward a person who goes on
    the area; or
    3. Is not liable or responsible for any injury to persons or property
    caused by the act or omission of a person who goes on the area.
    ...
    (c) The Legislature recognizes that an area offered for outdoor
    recreational purposes may be subject to multiple uses. The limitation
    of liability extended to an owner or lessee under this subsection
    applies only if no charge is made for entry to or use of the area for
    outdoor recreational purposes and no other revenue is derived from
    patronage of the area for outdoor recreational purposes.
    ...
    (5) As used in this section, the term:
    2
    Throughout this opinion, as we discuss both the current and former versions of the
    statute, we use italics to show the portions of the statute that were amended by the Florida
    legislature in 2012.
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    (a) “Area” includes land, water, and park areas.
    (b) “Outdoor recreational purposes” includes, but is not limited to,
    hunting, fishing, wildlife viewing, swimming, boating, camping,
    picnicking, hiking, pleasure driving, nature study, water skiing,
    motorcycling, and visiting historical, archaeological, scenic, or
    scientific sites.
    The question we must answer in this appeal is whether section 375.251 shields an
    owner or lessee from liability for an injury occurring in an area of a park in which
    no fees are charged even though fees are charged elsewhere in the park.
    We have addressed that question as it relates to an earlier version of section
    375.251. See Kleer v. United States, 
    761 F.2d 1492
     (11th Cir. 1985). Kleer
    concerned an accident in which William Russell Kleer suffered a fractured neck as
    a result of diving off the Florida State Route 19 bridge in the Juniper Springs area
    of the Lake George District of the Ocala National Forest. 
    Id. at 1493
    . Kleer argued
    that Florida’s recreational use statute did not shield the United States from liability
    because the Forest Service charged a fee for entry into parts of the Ocala National
    Forest, though not the Lake George District. At the time of Kleer, former section
    375.251 provided in relevant part:
    (1) The purpose of this section is to encourage persons to make land, water
    areas, and park areas available to the public for outdoor recreational
    purposes by limiting their liability to persons using these areas and to third
    persons who may be damaged by the acts or omissions of persons using
    these areas.
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    (2)(a) An owner or lessee who provides the public with a park area
    for outdoor recreational purposes owes no duty of care to keep that
    park area safe for entry or use by others, or to give warning to
    persons entering or going on that park area of any hazardous
    conditions, structures, or activities thereon. An owner or lessee who
    provides the public with a park area for outdoor recreational purposes
    shall not by providing that park area:
    1. Be presumed to extend any assurance that such park area is
    safe for any purpose,
    2. Incur any duty of care toward a person who goes on that park
    area, or
    3. Become liable or responsible for any injury to persons or
    property caused by the act or omission of a person who goes on
    that park area.
    (b) This section shall not apply if there is any charge made or usually
    made for entering or using such park area, or any part thereof, or if
    any commercial or other activity for profit is conducted on such park
    area, or any part thereof.
    …
    (5) The term “outdoor recreational purposes” as used in this act shall
    include, but not be limited to, hunting, fishing, swimming, boating,
    camping, picnicking, hiking, pleasure driving nature study, water
    skiing, motorcycling, and visiting historical, archaeological, scenic or
    scientific sites.
    We concluded that section 375.251 foreclosed Kleer’s claim against the
    United States because “the statute bars suits for injuries sustained in areas of parks
    where no fee is charged and no commercial activity takes place” and no fee was
    charged for entry into the Lake George area of the Ocala National Forest. 
    Id. at 1495
    . We explained that “the phrase ‘park area’ denotes something less than the
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    entire parcel of land,” meaning that the relevant area for purposes of the exception
    from limited liability is the area in which the injury took place. 
    Id.
     We also
    explained that a narrow reading of the exception from protection against liability is
    consistent with the statute’s express purpose to encourage people to make their
    land available to the public for recreational use without compensation. 
    Id.
    Further, we looked to the construction of section 375.251 in two related
    Florida state court decisions—Abdin v. Fischer, 
    374 So.2d 1379
     (Fla. 1979) and
    Sea Fresh Frozen Products, Inc. v. Abdin, 
    411 So.2d 218
     (Fla. 5th Dist. Ct. App.
    1982). Abdin arose from an accident in which the plaintiff slipped and fell on a
    boat ramp, which was open to the public free of cost. 374 So.2d at 1379. The
    defendant also maintained a retail and wholesale business on three separate parcels
    of land. 
    Id.
     at 1379–80. The state trial court entered summary judgment in favor of
    the defendant. Id. at 1381. The Supreme Court of Florida reversed, concluding that
    whether commercial activity occurred in the park area was a question of fact for
    the jury to resolve. Id. After remand and on appeal, the Florida Fifth District Court
    of Appeals concluded that the evidence was insufficient to prove that the defendant
    conducted commercial activity within the area where the accident took place. Sea
    Fresh Frozen Prods., 
    411 So. 2d at 220
    . We concluded that the “Abdin rule” was
    that the fact that “commercial activity was conducted in other areas of the
    defendant’s property did not preclude the defendant from invoking the protection
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    of section 375.251 [when no commercial activity was conducted within the park
    area where the injury occurred].” Kleer, 
    761 F.2d at 1494
    .
    The Florida legislature amended section 375.251 to its current version in
    2012, more than 26 years after the Kleer decision. The relevant 2012 amendments
    replaced:
    This section shall not apply if there is any charge made or usually
    made for entering or using such park area, or any part thereof, or if
    any commercial or other activity for profit is conducted on such park
    area, or any part thereof.
    
    Fla. Stat. § 375.251
    (2)(b) (1975), with:
    The Legislature recognizes that an area offered for outdoor
    recreational purposes may be subject to multiple uses. The limitation
    of liability extended to an owner or lessee under this subsection
    applies only if no charge is made for entry to or use of the area for
    outdoor recreational purposes and no other revenue is derived from
    patronage of the area for outdoor recreational purposes.
    
    Fla. Stat. § 375.251
    (2)(c) (2012). The amendments also added a definition of
    “area” to include “land, water, and park areas,” 
    id.
     § 375.251(5)(a), and changed
    “park area” to “area,” id. § 375.251
    II.    STANDARD OF REVIEW
    We review de novo a district court’s dismissal of an action for lack of
    subject matter jurisdiction. Zelaya v. United States, 
    781 F.3d 1315
    , 1321 (11th Cir.
    2015). “Federal courts are courts of limited jurisdiction. They possess only that
    power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.
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    of Am., 
    511 U.S. 375
    , 377 (1994). “[T]he burden of establishing [subject matter
    jurisdiction] rests upon the party asserting jurisdiction.” 
    Id.
     Given that the United
    States raised a facial challenge to the complaint, we look to see if Fernandez and
    Rodriguez “sufficiently alleged a basis of subject matter jurisdiction, and the
    allegations in [the] complaint are taken as true for the purposes of the motion.”
    Lawrence v. Dunbar, 
    919 F.2d 1525
    , 1529 (11th Cir. 1990) (quoting Menchaca v.
    Chrysler Credit Corp., 
    613 F.2d 507
    , 511 (5th Cir. 1980)).
    III.   DISCUSSION
    Fernandez and Rodriguez argue that the district court erred in dismissing the
    complaint for lack of subject matter jurisdiction because the United States would
    be subject to liability under Florida’s recreational use statute as a private party. See
    
    28 U.S.C. § 1346
    (b)(1); 
    Fla. Stat. § 375.251
    . First, they argue that the plain
    language of section 375.251 supports their reading, but that even if it does not, we
    should reject the statute’s plain meaning because it leads to absurd results. Second,
    they argue that the 2012 amendments render this Court’s decision in Kleer
    inapplicable. Third, they argue that even if this Court agreed with the district court
    that the United States has immunity with respect to injuries occurring in distinct
    areas made available to the public without charge, there is a disputed factual
    question as to whether the swimming area is a distinct area of Biscayne National
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    Park. For the reasons that follow, we find each of Fernandez and Rodriguez’s
    arguments unpersuasive.
    A. Section 375.251 Provides that Liability Attaches Only if Charges Are
    Made in the Distinct Area Where the Injury Occurred.
    “When construing the language of a statute, we ‘begin where all such
    inquiries must begin: with the language of the statute itself,’ and we give effect to
    the plain terms of the statute.” In re Valone, 
    784 F.3d 1398
    , 1402 (11th Cir. 2015)
    (alteration adopted) (quoting United States v. Ron Pair Enters., Inc., 
    489 U.S. 235
    ,
    241 (1989)). “We do not look at one word or term in isolation, but instead we look
    to the entire statutory context.” United States v. DBB, Inc., 
    180 F.3d 1277
    , 1281
    (11th Cir. 1999).
    At the same time, we are not deciding this case on a blank slate, and
    therefore, this Court’s decision in Kleer must guide our analysis. “The Legislature
    is presumed to know the judicial constructions of a law when amending that law,
    and the Legislature is presumed to have adopted prior judicial constructions of a
    law unless a contrary intention is expressed.” Fla. Dep’t of Children & Families v.
    Florida, 
    880 So.2d 602
    , 609 (Fla. 2004) (citing City of Hollywood v. Lombardi,
    
    770 So.2d 1196
    , 1202 (Fla. 2000)). We presume that the legislature “adopt[ed] the
    existing interpretation unless it affirmatively acts to change the meaning.” Bledsoe
    v. Palm Beach Cty. Soil & Water Conservation Dist., 
    133 F.3d 816
    , 822 (11th Cir.
    1998). Therefore, our analysis is focused on the question of whether anything in
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    the 2012 amendments “affirmatively acts to change the meaning” ascribed to
    section 375.251 by Kleer. Id.3
    Starting at the beginning of the statute, the legislature did not amend the
    express statutory purpose contained in subsection (1). Subsection (1) provides:
    “The purpose of this section is to encourage persons to make land, water, areas,
    and park areas available to the public for outdoor recreational purposes by limiting
    their liability to persons using these areas.” 
    Fla. Stat. § 375.251
    (1). The legislature
    also directed courts to “liberally construe[]” the provisions of the statute in order to
    accomplish that purpose. 
    Fla. Stat. § 375.061
    . The Kleer decision, and the district
    court’s decision, are both consistent with that express statutory purpose.
    Next, the legislature amended subsection (2)(a) by changing “park area” to
    “area.” That subsection currently provides the general rule that “[a]n owner or
    lessee who provides the public with an area for outdoor recreational purposes
    owes no duty of care to keep that area safe for entry or use by others.” 
    Fla. Stat. § 375.251
    (2)(a). At the time of Kleer, that provision read: “[a]n owner or lessee
    who provides the public with a park area for outdoor recreational purposes owes
    3
    Fernandez and Rodriguez also argue that we should reject Kleer altogether because it
    improperly applied Florida Supreme Court precedent. However, we may not depart from a prior
    panel’s decision “based upon a perceived defect in the prior panel’s reasoning or analysis as it
    relates to the law in existence at that time.” Smith v. GTE Corp., 
    236 F.3d 1292
    , 1303 (11th Cir.
    2001); see also United States v. Steele, 
    147 F.3d 1316
    , 1317–18 (11th Cir. 1998) (en banc)
    (“Under our prior panel precedent rule, a panel cannot overrule a prior one’s holding even
    though convinced it is wrong.”).
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    no duty of care to keep that park area safe for entry or use by others.” 
    Fla. Stat. § 375.251
     (1975). A similar change was made to subsection (2)(c) which limits the
    general rule in subsection (2)(a) to situations in which “no charge is made for entry
    to or use of the area for recreational purposes and no other revenue is derived from
    patronage of the area for recreational purposes.” 
    Id.
     § 375.251(2)(c). When this
    Court decided Kleer the subsection provided that the limitation on liability shall
    not apply “if there is any charge made or usually made for entering or using such
    park area, or any part thereof, or if any commercial or other activity for profit is
    conducted on such park area, or any part thereof.” 
    Fla. Stat. § 375.251
     (1975).
    The general rule contained in subsection (2)(a) thus remains the same as the
    previous version except for the substitution of “park area” for “area.” Fernandez
    and Rodriguez argue that this change reflects an affirmative act to change the Kleer
    interpretation because the legislature removed every reference to the term “park
    area” that was at issue in Kleer. However, the legislature did not eliminate every
    reference to “park area” but only moved it into the definition of “area.” At the time
    this Court decided Kleer, the statute used the term “park area” but did not define
    that term. This Court held that subsection (2)(a), and subsection (2)(c) which we
    discuss specifically later, refer to the particular area where the injury occurred
    because “park area” denotes something less than the entire parcel. With the 2012
    amendments, the legislature simply changed the word in subsection (2)(a) to “area”
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    and provided the following definition: “‘Area’ includes land, water, and park
    areas.” 
    Fla. Stat. § 375.251
    (5)(a). Accordingly, while this change expands the
    types of areas within the statute to include land areas and water areas, it
    nonetheless keeps the limiting term “area” such that our Kleer analysis continues
    to apply. Further, this change is consistent with the express statutory purpose to
    “encourage persons to make land, water areas, and park areas available to the
    public,” 
    id.
     § 375.251(1), which was not changed.
    Fernandez and Rodriguez also argue that the new definition of “area” itself
    reflects the legislature’s intent to change the Kleer interpretation of “park area” as
    denoting something less than the entire parcel by including a broad definition of
    “area.” However, the statutory definition merely tracks what Kleer said—that a
    “park area” is something less than the entire parcel. The fact that the legislature
    decided to add land areas and water areas does not change the essential fact,
    recognized in Kleer, that a park area means something less than the entire parcel.
    Turning to the exception to the limitation on liability in subsection (2)(c), as
    already explained, that subsection continues to provide that an owner or lessee is
    not exempted from liability if he charges for entry into or use of the area. The
    “entry to or use of” clause remains substantively the same. And although the
    legislature changed “any commercial or other activity for profit” to “revenue
    derived from patronage,” that change is immaterial to the question presented here
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    because it concerns the types of charges that cause the exception from limited
    liability to apply, not the scope of the relevant area. Fernandez and Rodriguez
    argue that by adding a new first sentence to subsection (2)(c) the legislature
    affirmatively rejected Kleer. That sentence reads: “The Legislature recognizes that
    an area offered for outdoor recreational purposes may be subject to multiple uses.”
    But that sentence tracks Kleer and simply made explicit what was implicit in the
    previous version of the statute—that an area might be subject to multiple uses.
    Accordingly, we find nothing in the text of section 375.251 that constitutes an
    affirmative act by the legislature to change the interpretation provided in Kleer.
    Finally, in subsection (5), the legislature added the definition of “area,”
    which includes three different types of areas—“land, water, and park areas.” Id.
    § 375.251(5)(a). Before the amendment, the statute referred only to “park area.” As
    already explained, this change clarifies that land areas, water areas, and park areas
    are within the scope of section 375.251, consistent with the express statutory
    purpose to “encourage persons to make land, water areas, and park areas available
    to the public.” Id. § 375.251(1). Accordingly, it tracks Kleer’s holding that the
    exception from limited liability applies only if an owner or lessee charges fees in
    the particular area where the injury occurred. We also find no affirmative act to
    change Kleer in the amendment to subsection (5)(b). That amendment changed
    “[t]he term ‘outdoor recreational purposes’ as used in this act shall include, but
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    not be limited to, hunting, fishing, wildlife viewing, swimming, boating, camping,
    picnicking, hiking pleasure driving, nature study, water skiing, motorcycling, and
    visiting historical, archaeological, scenic, or scientific sites” to “‘[o]utdoor
    recreational purposes’ includes, but is not limited to, hunting, fishing, wildlife
    viewing, swimming, boating, camping, picnicking, hiking pleasure driving, nature
    study, water skiing, motorcycling, and visiting historical, archaeological, scenic, or
    scientific sites.” That minor change to the definition of a term not at issue in Kleer
    does not reflect an affirmative attempt to change Kleer’s holding that “park area”
    denotes something less than the entire parcel.
    Fernandez and Rodriguez argue that even if the plain meaning of section
    375.251 continues to require adherence to Kleer, we should reject that plain
    meaning because it leads to absurd results. In particular, they assert that the
    legislature could not have intended the anomalous result that the United States
    would be immune with respect to injuries occurring in the pavilion on Boca Chita
    Key but not in the designated swimming area or on the walkway to the pavilion.
    We disagree that such result is absurd. The legislature could reasonably have
    decided to limit liability with respect to each specific area that is made available
    free of charge in order “to encourage persons to make land, water areas, and park
    areas available to the public for outdoor recreational purposes by limiting their
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    liability to persons using these areas.” 
    Fla. Stat. § 375.251
    (1). In fact, that is
    exactly what this Court recognized in Kleer. Kleer, 
    761 F.2d at 1495
    .
    Having found nothing in the text of section 375.251 that clearly shows the
    legislature sought to change Kleer’s interpretation of that statutory provision, we
    apply the holding of Kleer that an owner or lessee is immune from liability so long
    as he makes no charges in the particular area where the injury occurred.
    B. It is Undisputed that the United States Does Not Charge Fees for Use
    of or Derive Revenue from the Relevant Park Area.
    Fernandez and Rodriguez argue that even if we conclude that the United
    States is not liable for injuries occurring in distinct areas where no fees are
    changed, a disputed factual question exists about whether the swimming area, the
    boat dock, the pavilion, and the camping areas are inextricably intertwined such
    that they are one area for purposes of section 375.251. However, we do not find
    such issue fairly disputed.4 Fernandez and Rodriguez’s amended complaint does
    not allege that the swimming area is so intertwined with other areas of Biscayne
    National Park that it is not a distinct area. In fact, the amended complaint alleges
    4
    Fernandez and Rodriguez argue that Florida courts often have determined that the
    applicability of section 375.251 is an issue of fact that must be decided by a jury citing Abdin,
    374 So.2d at 1380, Arias v. State Farm Fire & Casualty Co., 
    426 So.2d 1136
    , 1139 (Fla. 1st
    Dist. Ct. App. 1983), and Goodman v. Juniper Springs Canoe Rentals & Recreation, Inc., 
    983 F. Supp. 1384
    , 1387 (M.D. Fla. 1997). However, in those cases, there were disputed factual issues
    about whether the defendant owned the relevant area or whether the defendant charged fees or
    received revenue from such area. Here, Fernandez and Rodriguez do not dispute that the United
    States owns Biscayne National Park, nor do they dispute that the United States does not charge
    fees for or receive revenue from use of the designated swimming area.
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    that the “designated swimming area” was surrounded by white buoys with “a red
    symbol—a diamond shape with an X inside—and lettering designating the beach
    as a swim area and prohibiting marine vessels from entering.” Because we must
    consider those allegations as true, McElmurray v. Consol. Gov’t of Augusta-
    Richmond Cty., 
    501 F.3d 1244
    , 1251 (11th Cir. 2007), we conclude that the
    swimming area is distinct from the other areas of Boca Chita Key. And since
    Fernandez and Rodriguez do not allege that the United States charges fees for or
    derives revenue from use of the designated swimming area, the United States did
    not waive its sovereign immunity under the FTCA, and the district court properly
    dismissed the complaint.
    IV.   CONCLUSION
    The judgment of the district court is AFFIRMED.
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