United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
action concerns a special magistrate's enforcement
hearing on local code violations. The matter comes to the
Court on a motion to dismiss Plaintiff Robert Lindbloom's
Second Amended Complaint, Dkt. 26, from Defendants Manatee
County and Donald Courtney, Tanya Shaw, Tom Wooten, and
Katharine Zamboni in their individual capacities, Dkt. 27.
Plaintiff, pro se, has responded in opposition. Dkt. 29. The
Court GRANTS the motion.
Plaintiff's factual allegations as true, Plaintiff has
lived in the same home in Manatee County for more than 35
years. Dkt. 26 at 14. The individual Defendants work for
Manatee County: Defendant Shaw is a code enforcement officer;
Defendant Wooten is a code enforcement field supervisor;
Defendant Zamboni is an assistant county attorney; and
Defendant Courtney is a special magistrate. Id.
to Shaw's testimony at the eventual enforcement hearing,
she made initial inspections of Plaintiff's residence on
July 17, 2018. Dkt. 26-3 at 20. These inspections led to
notices of violations (NOVs) for trash and debris (Section
2-9-105, case number 2018070212) and an unsound roof (Section
2-9-106, case number 2018070184). Id. The NOVs were
dated July 31, 2018 and posted on the property the same day.
Id. Reinspections were made on July 31, August 14
and 30, and September 21 of 2018. Id. There was
“drop service, ” and the cases were posted on the
first floor of the county administration building.
September 26, 2018, Magistrate Courtney held a hearing on the
NOVs in which Shaw testified and presented photographic
evidence of Plaintiff's noncompliance. Dkt. 26-3 at
20-26. Plaintiff testified that the photographs did not
represent the then-current condition of his residence,
objected to their “enhanced” nature, and
questioned the allegation that the condition of the roof was
structurally unsound. Id. at 21.
the hearing, Plaintiff also asked for a connector cable with
which to make a computer presentation. Id. at 21.
Plaintiff was informed that he would need to provide a copy
of any materials presented, so he would also need to use
email or a printer. Id. Plaintiff then made a
request for a hearing aid but quickly turned to his case
“so we don't have to come back here again.”
Id. Though he once more complained about the absence
of a hearing aid, Plaintiff seemed able to communicate with
and answer questions from the Magistrate. Id. at
the hearing the Magistrate issued his decision finding
noncompliance and charging Plaintiff fines of $50.00 per day
for each of the violations for a maximum of $20, 000.
Id; see also Dkt. 26 ¶ 65. Defendant
Courtney and other individuals in attendance repeatedly
informed Plaintiff that the fines would only assess on the
compliance date on October 19, 2018. Dkt. 26-3 at 21-22. The
fines started on November 17, 2018 and stopped on February
19, 2019. Dkt. 26 ¶¶ 66-67. A lien in the amount of
$4, 778.50 (apparently only for the trash and debris
violation) was entered upon the property. Dkt. 26-2. In his
original complaint, Plaintiff alleged that the
Magistrate's decision is “being appealed.”
Dkt. 1 at 5.
Second Amended Complaint, Plaintiff broadly challenges the
constitutionality and validity of Chapter 162, Florida
Statutes and Manatee County Ordinance 15-10. Dkt. 26
¶¶ 14-15. He also brings eighteen claims against
Defendants, including claims in individual capacity. The
causes of action include, against Manatee County: (1)
excessive fines, (2) a due process claim under 42 U.S.C.
§ 1983 for retroactive regulation, namely
Ordinance 15-10 which required homestead property owners to
comply with its provisions; and (3) a due process claim for
entering a lien on a homestead property.
brings against Defendant Shaw: (4)-(9) a series of due
process claims for submitting false NOVs and altered
photographs, not providing evidence to Plaintiff prior to the
hearing, and not specifying additional actions necessary to
bring the residence into conformity, a Fourth Amendment
“privacy” claim, and a First Amendment
“free speech” claim.
complains against Magistrate Courtney: (10) an Americans with
Disabilities Act violation for failing to provide a hearing
aid at the hearing; and a series of due process claims for
(11) mistakenly finding the noncompliance of Plaintiff's
roof; (12) not providing a connector cord to present
evidence; (13) relying on evidence not provided to Plaintiff
prior to the hearing and for ignoring testimony; (14) not
allowing Plaintiff to question Shaw about the NOVs; (15)
allowing Shaw's presentation with photographs; (16)
failing to serve as an impartial tribunal as evidenced by the
comment, “Here's the order in writing, sir, so you
maybe can't hear but you can read this.”
also brings (17) a due process claim against Defendant Wooten
for interrupting his questioning of Defendant Shaw. The last
claim, (18), is against Defendant Zamboni for not allowing
Plaintiff to present evidence that he did not provide prior
to the hearing.
seeks a variety of relief, including injunctive relief to
remove the lien, a stay of the Magistrate's decision, and
punitive damages. Defendants move to dismiss under Rule
10(b) of the Federal Rules of Civil Procedure for the
defective form of Plaintiff's Second Amended Complaint,
under Rule 8(a)(2) for lack of notice of the grounds
supporting his claims, and under Rule 12(b)(6) for failure to
state a claim.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead sufficient facts to state a claim that is
“plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In
considering the motion, the court accepts all factual
allegations of the complaint as true and construes them in
the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008)
should limit their “consideration to the well-pleaded
factual allegations, documents central to or referenced in
the complaint, and matters judicially noticed.” La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845
(11th Cir. 2004) (citations omitted). Courts may also
consider documents attached to a motion to dismiss if they
are (1) central to the plaintiff's claim; and (2)
undisputed or, in other words, the “authenticity of the
document is not challenged.” Horsley v. Feldt,
304 F.3d 1125, 1134 (11th Cir. 2002) (citations omitted).
than proceed one-by-one through Plaintiff's eighteen
claims, the Court first observes that Plaintiff fails to
successfully challenge the constitutionality and validity of
Chapter 162, Florida Statutes and Ordinance 15-10. Secondly,
the procedures for the Magistrate's hearing do not offend
due process and, in any event, Plaintiff's remedy lies in
state court. Additionally, Plaintiff does not raise a
cognizable substantive due process or excessive fines claim
as it relates to the lien. He cannot establish his remaining
claims for violations of his First and Fourth Amendment
rights, his privacy, and under the Americans with
Disabilities Act. Lastly, qualified immunity shields the
individual Defendants from suit.
Chapter 162, Florida Statutes and Ordinance 15-10
than once in his Complaint, Plaintiff asserts that Chapter
162, Florida Statutes, and Ordinance 15-10 are
unconstitutional. Dkt. 26 ¶¶14-15, 29. His chief
argument is that Chapter 162 provided the legal basis for the
County to pass Ordinance 15-10, which “forc[es]
citizens to abide by current regulations, no matter how
expensive the repairs are and/or how long they have lived in
the same house, ” or in other words, is a
“retroactive regulation.” Id.
¶¶ 7-9, 14.
162 concerns county and municipal code enforcement, including
authorizing enforcement boards and special magistrates.
See, e.g., Fla. Stat. § 162.03. As a Florida
appellate court summarized, Chapter 162:
authorizes counties and municipalities to create a code
enforcement board to enforce local codes and ordinances which
have no criminal penalties, where a pending or repeated
violation continues to exist. Section 162.02. Enforcement is
initiated by a code inspector who notifies the violator and
gives him a reasonable time to correct the violation, and if
the violation continues beyond the time specified for
correction the code inspector must notify the board and
request a hearing. Section 162.06. Under the procedures set
forth in section 162.07, the board must issue findings of
fact, conclusions of law and an order affording the proper
relief consistent with the statute.
Section 162.09 authorizes the board, upon notification by the
code inspector that a previous order of the board has not
been complied with by the set time or, upon finding that the
same violation has been repeated by the same violator, to
assess fines up to $250/day for each day that a violation
continues past the date set for compliance. Once a certified
copy of the order imposing a fine is filed with the public
records, it constitutes a lien upon either the land involved
or other property owned by the violator, and within six
months the board may authorize the city attorney to foreclose
on the lien except if it involves real property which is a
homestead under the Florida Constitution.
City of Gainesville Code Enf't Bd. v. Lewis, 536
So.2d 1148, 1150 (Fla. 1st DCA 1988). In addition to setting
forth various standards for the maintenance of property and
structures, Ordinance 15-10 provides for enforcement of code
violations “as provided in Chapter 162, Florida