The city of Dunedin, Florida, wants to foreclose on a private home because the owner, Jim Ficken, owes the city over $29,000 in fines. The crime for which he is threatened with home loss? Having his lawn grass be too tall (over 10 inches) for a period of eight weeks last summer. The city fined him $500 per day of violation, with no warning.
Ficken was out of town at the time, settling his mother's estate. Ficken hired a handyman to deal with his lawn while he tended to his dying mother and then to her estate, but in a cruel twist, the handyman also died during the Fickens' ordeal, leaving the lawn uncut.
Ficken is 69 years old and lives on a fixed income. He was unaware that he was racking up the daily fines, but cut his grass within two days of finally being informed by a city code inspector that there was a problem. In a sane world, Ficken's explanation for neglecting his lawn and the fact that he remedied the problem as soon as he learned of it, would seemingly resolve the issue. No harm, no fine.
But the Dunedin government is apparently not sane. Because Ficken was also cited for overly tall grass in 2015, the city—unbeknownst to Ficken—classified him as a "repeat violator." This classification doubled his daily fine from $250 to $500 and relieved the Code Enforcement Board of providing him notice. Because Ficken cannot afford the fines he didn't know he was accumulating, the city of Dunedin insists that it can now take his home to pay off his debt.
With the help of the Institute for Justice, Ficken is suing to prevent the city from stealing his house. Earlier this year in the case of Timbs v. Indiana, the Supreme Court showed a willingness to give teeth to the Eighth Amendment's prohibition on excessive fines, even when not involving direct federal action.
Ficken and the Institute for Justice hope the Florida Circuit Court for the 6th Judicial District will agree that the city's practice of imposing such fines with such consequences, "without providing them with notice before applying such classification…or advising them of the consequences of such a classification…violates the Due Process Clauses of both the U.S. and Florida Constitutions."
"The City's imposition of fines against Jim, without providing Jim notice that fines were being imposed on an ongoing basis, amounted to a violation of the Due Process Clause of the U.S. Constitution," the suit insists.
There is no cap on the amount in fines the city can levy for such petty violations, which cause no harm to anyone. That, the suit argues, also violates "the Excessive Fines Clauses of both the U.S. and Florida Constitutions." Taking someone's house for having overly tall grass for a few weeks seems, on its face, excessive and unreasonable.
The suit points out that "municipal salaries and expenses are paid with revenue collected from fines," giving officials motive to act unreasonably in such cases as grass taller than legally permitted. From 2007-2017, Dunedin's take from code enforcement fines increased nearly twentyfold, from $34,000 to $703,000.
"The City had the authority to mow Jim's grass and send him a reasonable bill," the filing points out. "Upon information and belief, the City did not do so because it prioritizes revenue over code compliance."
The city anticipates in its own budget that 2019 fine revenue will rise 81 percent from 2018, so they seem on a deliberate warpath on such petty issues. Remedying code violations does the city no good; fining for them keeps them in business (that is, the business of stealing homes over tall grass).
The suit asks the court to enjoin the city from pursuing the home foreclosure or squeezing the fine money out of Ficken in recognition that the procedures and fines violate the Due Process Clause and the Eighth Amendment. The suit also seeks a nominal dollar amount and reasonable attorneys and court fees.