Federal Lawsuit Against Palm Coast Code Enforcement Charges Search and Due Process Violations
FlaglerLive | March 13, 2014
Linda Thomas is a retired attorney in Palm Coast. She does not like to be pushed around. And she doesn’t settle for much. When she feels wronged, she prefers to push through to a clear conclusion. Power doesn’t intimidate her.
When Palm Coast’s Code Enforcement division slapped code violations on her and her Seminole Woods property over issues involving her dogs and boats she was keeping on the property, she first fought the city through code enforcement hearings, and getting nowhere there, sued the city in circuit court. She won. Twice. In one case, the court reversed the code enforcement board’s order to pay $150 in “administrative costs,” finding that the board had failed to afford Thomas due process. In the other case, the court found that code enforcement had no evidence to level charges against her.
Thomas had won, but she was not satisfied. Code enforcement, she claimed, violated her rights repeatedly on the way to slapping those violations on her, and did so, in her view, vindictively and without evidence—or by violating her property rights.
So last month, Thomas sued the city in federal court on constitutional grounds. It is the first such lawsuit against Palm Coast’s code enforcement division in federal court in recent memory, and the first to invoke fourth and 14th amendment violations (against unreasonable searches and in violation of due process).
Palm Coast last week filed a motion to dismiss. The motion, a routine and almost automatic filing in such cases, was filed by Jeffrey Weiss of the Orlando firm Brown, Garganese, Weiss and D’Agresta, the firm Palm Coast retains for its legal representation. (This story was corrected after it had erroneously noted previously that the law firm was not that usually retained by Palm Coast.) The motion argues that Thomas made too many claims (15 in all) that either duplicated themselves—by naming both the city and individual city officials—or that called for relief that could not be granted. Thomas, who filed the suit in her name and that of her husband, is representing herself. She intends to fight on.
“When I went to law school I was taught that if you have something that happens to you personally and you know it’s happening to other people,” Thomas said in an interview, “you really need to do it for the other people, and in civil rights usually there aren’t many to be found against code enforcement, because of just that reason—nobody can afford it.”
She can, she says, She has the time and the experience. “What the outcome would be I have no idea,” Thomas says, “because I know my expectation is that we succeed in having deterrence, deterring the city from doing any more of this nonsense.”
The facts of the case are outlined in the court papers, filed in U.S. District Court for the Middle District on Feb. 11.
The case revolves around incidents that happened four years ago at the Thomas property at 72 Smith Trail in Palm Coast.
On Feb. 15, 2010, a mail carrier called Palm Coast’s Animal Control office just after noon to report that two dogs were locked in a vehicle at that address, though the vehicle was in the shade and windows were partially opened. An animal control officer arrived at the property 20 minutes later and left a courtesy notice there about the animals. No citation or fine were issued, and in a report the animal control officer wrote, she noted that the animals were not in distress.
Thomas would later note that she is a member for a national American Kennel Club, for which she wrote the ethics, and had recently published an article on estate planning for animals.
The animal control officer was then able to reach Thomas, who told her she was on her way back from Jacksonville. The officer asked if there were animals in the houise. Thomas asked why that was relevant. The animal control officer said she’d looked through the living room window of the house and seen more animals inside. Alarmed, Thomas told the animal control officer that she had no right to look through a house’s window, on private property. The officer—Shelly Adorante, who no longer works with Palm Coast—told Thomas that she could look through windows, into the backyard or anywhere else that she wanted, according to the lawsuit.
Matters deteriorated from there. Adorante stayed on the property until 3 p.m. According to the suit, she photographed the interior of the home, including the living room, dining room and patio area and walked through the Thomas’s side yard. She was joined by another animal control officer, Eva Boivin, who also walked around the property, according to the suit. After Thomas protested that her rights were being violated, Adorante called a code enforcement officer (Michael Hadden).
By 2:20 p.m., the initial courtesy notice about the dogs had been replaced by a pair of citations ($100 fine for each dog), and Hadden had photographed two boats “that were barely visible from the street” in the backyard of the property, and noticed a third. Whether boats are visible or not is irrelevant to the code: boats may not be stored on residential properties in palm Coast. But Thomas argued that the only way to detect the presence of the boats was by breaking code enforcement’s own rules and violating her property rights. Hadden wrote a warning notice for the three boats. (Hadden would visit the property a total of seven times, the suit claims.)
The case went on from there, with meetings involving Code Enforcement Manager Barbara Grossman and Community Development Director Nestor Abreu that were not, in the suit’s retelling, quite friendly, as well as hearings before the code enforcement board. The board did not hear Thomas’s claim of any rights violations when it heard the case in May that year and levied a $150 administrative cost fee on Thomas. Another hearing later that month upheld the city’s $200 fine over the dog issue.
Thomas appealed both results to circuit court, winning rulings two years later. In the case of the dogs, Circuit Court Judge Dennis Craig ruled that the city had no basis for fining Thomas $200, since there was no proof the dogs were in distress. In the boats’ case, Craig ruled that Thomas and her husband had been denied due process and had “no opportunity to exercise their constitutional right against an alleged unreasonable search.” The city, the judge found, “has the initial burden of proof to establish the legality of the search.”
Rather than address the constitutional issue in a subsequent hearing, the code enforcement board opted to dismiss the case entirely, thus sidestepping Thomas’s challenge.
“I really wanted to make a federal case out of this,” Thomas said. Now she has, naming all those involved in the 2010 cases, as well as City Manager Jim Landon, in her suit.
Typically, such cases must first go to mediation, assuming the case goes forward at all. Palm Coast’s motion to dismiss makes a curious argument: that the Thomases “have not adequately alleged that the city had a policy au7thorizing or condoning the conduct about which they complain, or that the city’s final policy-maker created, authorized, or merely condoned” the policy. Nor have the Thomases, the motion continued, “adequately alleged that there was a ‘widespread’ and ‘permanent and well settled’ custom of engaging in the conduct about which they complain.”
In other words, because almost all such matters are resolved before the code enforcement board, where residents face fines, pay them, and move on rather than opt to fight the board’s finding, the Thomases have no case, the motion to dismiss argues.
And if city employees’ “actions in enforcing the city’s code provisions did violate any constitutional rights,” the city’s motion to dismiss argues, “then those rights were not clearly established at the time of said violations.” That’s a curious line of argument, since it places city policies above constitutional standards. But it’s not without precedent on the city’s part: the city last year cleared itself of alleged ethics violations before the Florida Ethics Commission—on charges brought by an ex-employee—by arguing that whatever misdeeds may have taken place individually had not been part of a pattern, and had not been policy.
The city has an able and forceful legal team. Thomas is going at it alone. “It’s my full-time job right now,” she said. “I’m retired, so that’s OK.”