"A fine of $30,000 and the loss of one's home are excessive because they are both unreasonably harsh and so oppressive as to shock the conscience of reasonable men," the I.J. lawyers wrote,

True. And the city will lose the case for that reason.

Because he had let his grass grow too tall once before, in 2015, Dunedin deemed him a "repeat violator"

From another article:

"The city sent 10News a list of 15 violations dating back to 2007 for the home on Marion Lane. Fourteen of the violations were for overgrowth. One was for a junk vehicle."

Because he had let his grass grow too tall once before, in 2015, Dunedin deemed him a "repeat violator"

From another article:

"The city sent 10News a list of 15 violations dating back to 2007 for the home on Marion Lane. Fourteen of the violations were for overgrowth. One was for a junk vehicle."

No surprise.

We have long learned never to expect the anti-government or cop-hating articles that Deckard continually searches out to post will ever include pertinent contrary factual information.

Would we …

Salute,
Gatlin

Now the people who are trying to take his house should face life in prison or the death penalty. Or something close to that.

Fourteen of the violations were for overgrowth.

So they say - quite a Star Chamber court going on there.

The city, which sought to have the lawsuit tossed by the Florida Circuit Court for the 6th Judicial District, says Ficken received all the due process he was owed. Dunedin informed him of a hearing where his case would be discussed, and in which the doubled "repeat violator" fines were retroactively imposed.

A filing from Ficken's lawyers counters that Dunedin officials were "repeatedly advised that Jim would not be able to attend the hearing," yet "the City went forward anyway." According to I.J., "this 'process' was one in which Jim was not permitted to participate," and "when he sought a rehearing, his request was rejected." Ficken adds that he was never informed of his status as a "repeat violator" or told what such a designation would mean for his case.

We have long learned never to expect the anti-government or cop-hating articles that Deckard continually searches out to post will ever include pertinent contrary factual information.

Well, the article was correct -- he HAD let his grass grow too tall once before in 2015. And 14 more times in 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2016, 2017, and 2018.

See how that works? As late, great Mitch Hedberg said, "I used to do drugs. I still do, but I used to, too."

Ficken adds that he was never informed of his status as a "repeat violator"

Now see, I would think that the 15 notices of violation would have been a big clue.

Never informed of his status. Puh-leeze.

Taking his home is cruel and unusual punishment.

I agree. He should just pay the $29,000 fine and be done with it.

Mitch Hedberg said, "I used to do drugs. I still do, but I used to, too."

Now, that WAS funny.

The city of Dunedin, Florida, really wants Jim Ficken's house.

They really don't want his house. They want his grass cut. In lieu of that, they will auction his house off and take the money from the proceeds. Jim Ficken can then find a new house with a rock garden.

Last year, the 69-year-old retiree left town to attend to his dying mother and then to sort out her estate.

While he was away, he left a handyman in charge of his property. In a Shakespearean twist, the handyman also died, leaving Ficken's lawn unmowed and the municipality perturbed.

Blame the dead guy.

Ficken returned home, learned that he was in violation of Dunedin's tall grass ordinance, and mowed his lawn two days later. The city then held a hearing at which it decided to retroactively fine Ficken for each day that his grass had exceeded 10 inches in height.

This is bullshit, as explained in the court documents. On Aug 21 Ficken received notice of the Sep 4 hearing but chose not to attend. At the Sep 4 hearing, it was determined to levy the fines for July and August.

Ficken, who is on a fixed income, can't pay the city.

Yes, he can. He can sell his house if need be. Better yet, the city will do it for him.

In a sane world, his explanation for neglecting the lawn and the fact he remedied the problem promptly upon being informed of it by a code inspector would settle the matter.

But Ficken's world is not sane. Doing the same thing over and over, and expecting a different result, is the definition of insanity.

But Dunedin, a picturesque beach town on Florida's Gulf Coast, has threatened to foreclose on Ficken's home to get the money it claims it is owed.

See how easy it is. They will take care of it for Ficken.

Ficken, who is being represented by the Institute for Justice (I.J.), is now suing the city in order to protect his house and end the saga.

Good luck with that.

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The case is Ficken et al v. City of Dunedin, Florida et al, 8:19-cv-01210, Florida Middle District Court, Judge Charlene E. Honeywell

The case was first filed in State court and later moved to Federal court. Plaintiff filed a First Amended Complaint on 27 Sep 2019 as JAMES FICKEN, trustee, SUNCOAST FIRST TRUST; and SUNCOAST FIRST TRUST.

Dunedin filed Defendants' Dispositive Motion to Dismiss Amended Complaint and Incorporated Memorandum of Law on 30 Sep 2019.

In memorandum of Law at 2: (footnotes omitted)

MEMORANDUM OF LAW

A. ALLEGATIONS OF THE AMENDED COMPLAINT.

In its rambling 152 paragraph Amended Complaint, "Plaintiff Suncoast First Trust alleges that it is a Florida trust which owns the real property located at 1341 Lady Marion Lane in Dunedin (¶ 8). Plaintiff Ficken is the sole trustee of the trust and an indirect beneficiary of same, and allegedly lives in the home located on the property. (¶ 9). The two Plaintiffs are referred to throughout this Motion in the singular.

It is argued at 9:

COUNTS I AND II SHOULD BE DISMISSED BECAUSE THE DAILY ACCRUING FINE AT ISSUE IS STATUTORILY AUTHORIZED AND NOT EXCESSIVE, AND BECAUSE AN UNRIPE FORECLOSURE ACTION IS NOT A “FINE” UNDER THE EIGHTH AMENDMENT.

In Counts I and II, Plaintiff contends that the City's “aggregate fines” of over $29,000 constitute “excessive fines” under both the Eighth Amendment to the United States Constitution and the parallel provision of the Florida Constitution, and that its “system of limitless fines” is unconstitutional both facially and as-applied. (Dkt. 22 at 110, 125). The Amended Complaint affirmatively alleges that the fine at issue stems from two periods of noncompliance resulting in a fine of $500 per day for each day of that noncompliance. Because that amount falls within the legislatively defined boundaries for such violations regardless of the amount to which it aggregates, and because foreclosure is not a “fine” subject to Eighth Amendment inquiry, Counts I and II should be dismissed.

At 18:

COUNT III MUST BE DISMISSED BECAUSE PLAINTIFF FAILS TO ALLEGE THAT ADEQUATE STATE REMEDIES WERE NOT AVAILABLE TO REDRESS THE ALLEGED VIOLATION, AND BECAUSE ADEQUATE STATE REMEDIES WERE AVAILABLE.

In Count III of the Amended Complaint, Plaintiff alleges that his federal procedural due process rights were violated because he was not informed of the “consequences of his ‘repeat violator' classification,” not provided an opportunity to contest his classification as a repeat violator, and because he was not provided notice of the fines being imposed “on an ongoing basis.” (Dkt. 22 at 129-140). What Plaintiff fails to allege is that adequate state remedies were not available to redress these violations, assuming them to be valid. This failure is fatal to the claim.

At 21:

COUNT IV SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES AND BECAUSE THE COMPLAINT SHOWS PLAINTIFF RECEIVED NOTICE AND AN OPPORUNITY TO BE HEARD BEFORE THE FINE WAS IMPOSED.

In Count IV, Plaintiff asserts a procedural due process violation under the Florida Constitution based on the same allegations of Count III, though it is not asserted which specific portions of Chapter 162, Fla. Stat. or Chapter 22, DCO are implicated. (Dkt. 22 at 141-142). Florida's constitutional provision ensuring due process is interpreted consistently with federal law. See e.g. Scull v. State, 569 So.2d 1251, 1252 (Fla. 1990) (“The essence of due process is that fair notice and a reasonable opportunity to be heard must be given to interested parties before judgment is rendered” (citing Tibbetts v. Olson, 108 So. 679, 688 (1926) (Whitfield, J., concurring)); Stern v. Horwitz, 249 So.3d 688, 691 (Fla. 2d DCA 2018) (“It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by order, decree[,] or judgment of any court.” (quoting Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So.2d 1107, 1111 (Fla. 3d DCA 2000)). Likewise under state law, procedural due process does not always require a pre-deprivation hearing. In some cases, a post-deprivation hearing is sufficient. This is particularly so in cases where there has been some initial pre-deprivation procedure. Massey v. Charlotte County, 842 So. 2d 142, 146 (Fla. 2d DCA 2003).

At 24:

Critical to the Court's analysis of the claim are paragraphs 83, 84, 87, and 88. There, Plaintiff affirmatively alleges that he received on August 21 formal notice of a hearing on the matter to be held on September 4. Plaintiff makes no allegation that the notice was constitutionally inadequate. Plaintiff further alleges that he made two requests for postponement that were rejected, again without allegation that those denials were constitutionally deficient. Then, Plaintiff affirmatively alleges that the Code Enforcement Board held a hearing on September 4, 2018, at which time the Board determined that the property was in violation during the July and August periods testified to by the enforcement officer, and issued the daily fine accordingly. (Dkt. 22 at 87). So, though Plaintiff attempts to persuade the Court that the fine was issued before a hearing and concurrently with the violations, the Amended Complaint instead shows that the fine was issued following a hearing of which Plaintiff was notified but at which he did not appear. Further, the Amended Complaint shows the fine was imposed by the Board in September for the periods of noncompliance occurring in July and August. The face of the Amended Complaint shows no violation of Plaintiff's procedural due process rights, and Count IV should be dismissed.

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PREVIOUS ENTRIES IN THE MONTHLY RETELLING OF THE SAGA OF JIM FICKEN

https://libertysflame.com/cgi-bin/readart.cgi?ArtNum=59588

Title: The Grass GESTAPO Is Out of Control: 30K in Fines and Potential
Foreclosure for a Too-Long Lawn
Source: The Organic Prepper
URL Source: https://www.theorganicprepper.com/grass-gestapo/
Published: Aug 9, 2019
Author: Dagny Taggart
Post Date: 2019-08-09 08:17:36 by Deckard

https://libertysflame.com/cgi-bin/readart.cgi?ArtNum=59371

Title: Government Bullies Want to Seize This Man's Home Because of Overgrown Grass
Source: Reason
URL Source: https://reason.com/2019/07/10/government-bullies-want-to-seize-this-mans-home-because-of-overgrown-grass/
Published: Jul 10, 2019
Author: John Stossel
Post Date: 2019-07-10 07:44:19 by Deckard

https://libertysflame.com/cgi-bin/readart.cgi?ArtNum=58974

Title: Florida City Tries To Steal an Elderly Man's House Over Uncut Grass
Source: Reason
URL Source: https://reason.com/2019/05/08/florida-city-tries-to-steal-an-elderly-mans-house-over-uncut-grass/
Published: May 8, 2019
Author: Brian Doherty Post Date: 2019-05-09 06:53:01 by Deckard

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COURT DOCUMENTS:

https://www.scribd.com/document/428647413/DOCKET-REPORT-Ficken-v-Dunedin-8-19-cv-1210-as-of-3-Oct-2019

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https://www.scribd.com/document/428647595/Ficken-v-Dunedin-8-19-cv-1210-27-Sep-2019-Doc-22-FIRST-AMENDED-COMPLAINT

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https://www.scribd.com/document/428647787/Ficken-v-Dunedin-8-19-cv-1210-30-Sep-2019-Doc-24-MOTION-TO-DISMISS-AMENDED-COMPLAINT

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https://www.scribd.com/document/428647939/Ficken-v-Dunedin-8-19-cv-1210-30-Sep-2019-Doc-25-DEFENDANTS-MOTION-TO-STRIKE-AND-INCORPORATED-MEMORANDUM-OF-LAW

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https://www.scribd.com/document/428661150/Ficken-v-Dunedin-8-19-cv-1210-17-May-2019-Doc-1-1-STATE-COMPLAINT

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