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Lindbloom v. Manatee County

United States District Court, M.D. Florida, Tampa Division

June 17, 2019




         This 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.


         Taking 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.

         According 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. Id.

         On 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.

         During 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 21-22.

         During 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.

         In his 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[1] 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.

         Plaintiff 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.

         Plaintiff 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.”

         Plaintiff 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.

         Plaintiff seeks a variety of relief, including injunctive relief to remove the lien, a stay of the Magistrate's decision, and punitive damages.[2] 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.


         To 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) (citation omitted).

         Courts 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).


         Rather 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.

         I. Chapter 162, Florida Statutes and Ordinance 15-10

         More 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.

         Chapter 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 ...

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