A constitutional controversy
A homeowner's protest about a builder he says is ignoring
his requests heads into uncharted legal territory.
COURTESY : St. Petersburg Times
By MICHAEL VAN SICKLER
Published September 7, 2003

HERITAGE ISLES - Daniel Crowder doesn't exactly have the same goals that Tom Hayden or Abbie Hoffman had in the 1960s when they aimed to overthrow the establishment by sparking a youth revolution.

All Crowder wants is for someone to fix his front stoop and keep cement trucks from waking him in the wee hours of the morning.

But like a modern-day Yippie, Crowder has taken to the streets of Heritage Isles.

It is there, and at the community's clubhouse and lagoon pool, that Crowder has waved a sign for all to see, a sign with the scrawled message that, to him at least, contains the answer that is blowin' in the wind: Lennar sucks.

Crowder thinks Lennar Corp., a $7.3-billion company that's building the 1,600 homes in Heritage Isles, needs to change its ways.

Crowder says he asked Lennar for three months to fix his front porch, which collects pools of water when it rains. 

Lennar contractors wake him most mornings with the clickety-clack of their house building. Portable toilets clog the street. A generator in a neighboring lot chugs all day, drowning out the solitude Crowder expected when he moved to his new home in April.

He says he drew up his sign of protest after numerous complaints went unanswered by Lennar.

"I can't live like this," Crowder said. "I've had enough. They're Lennar. They do what they want. And if this is still America, then this is what I can do."

So in mid-August, Crowder, a 53-year-old former caseworker for the state Department of Children and Families, brandished his sign as he marched to the pool and clubhouse - and into untested legal territory. 

Like more than 200 other communities in Florida, Heritage Isles is governed by a Community Development District, or a CDD. The CDD's five-member board oversees the development's common areas, like the streets, pool, clubhouse and golf course.

These areas are financed with tax-free municipal bonds and are paid off by the project's homeowners like Crowder. In the early years of a project, the developer controls the board; Heritage Isles' five CDD board members all work for Lennar.

So the clubhouse and pool are owned by the CDD, a public body, that is little more than an extension of a private company.

"Most of the time, when we think of public assembly, we think of protesting on the courthouse steps, which you're allowed to do," said Jim Nicholas, a University of Florida professor of law and urban planning who helped write the state law creating CDDs in 1980. "Or we think of the shopping center, where they have a right to throw you out. This is neither."

So what is it?

Crowder says that on the two days he protested, that matter was up for debate.

On his first day of protest, Aug. 12, he showed off his sign at the pool. An attendant asked him to show his identification. Crowder told her he didn't have to show anything. She then went inside to get Lynn Hayes, the club manager.

When Hayes approached, he seemed quite upset and demanded that he be given the sign, Crowder said. When Crowder refused, Hayes walked away. Crowder said he went inside to get a beer at the clubhouse. He said he left a few minutes later, but said Hayes chased after his car as it pulled out of the lot so he could write down the tag number.

The next day, Crowder said, Hayes jammed his foot at the clubhouse door so Crowder couldn't enter. As Crowder squeezed his way into the clubhouse, Hayes shuffled to block him.

"So he's in front of me," Crowder said. "I moved to my right, he moved to his left. I moved to my left, he moved to his right."

For five minutes, as Crowder made his way through the clubhouse lobby and hallway, Hayes and two other clubhouse attendants surrounded Crowder.

"I felt threatened," Crowder said. "I knew they were violating my civil rights and my freedom of expression."

Crowder said he left, fearing a confrontation was brewing. As he did, he noticed that a Tampa police car was pulling into the drive.

It turns out, Tampa police had been called. Two days later they showed up at Crowder's house and told him that he can't be belligerent at the clubhouse. No police report was filed, however.

"They told me that this was a semipublic, semiprivate situation, and that I needed to be careful," Crowder said.

Crowder said he had acted appropriately, and that Hayes was distorting events to police.

When reached by phone last week, Hayes said: "I don't have anything to discuss."

He then hung up.

Bill Kouwenhoven, communities manager for Lennar's North Florida Land Development Division, wouldn't comment.

Jon Kaney, the general counsel for the First Amendment Foundation, a nonprofit Florida group devoted to preserving freedom of speech, said CDDs are posing new threats to the First Amendment because they govern large tracts of public space but often operate like private corporations.

"Attorneys who work for CDDs are corporate attorneys with little training in municipal law," Kaney said. "The kind of legal advice they need should come from a lawyer trained in municipal law."

Crowder should have been left alone when he entered the clubhouse, Kaney said.

"If they're not giving him space and he feels threatened, that's treading dangerously close to assault," Kaney said. "He has a right to his space."

The language of the sign isn't a problem either, Kaney said. In the 1971 case Cohen v. California, the U.S. Supreme Court upheld a man's right to wear a leather jacket with the phrase "F-- the draft" inscribed on the back.

"One man's vulgarity is another's lyric," Justice John M. Harlan said.

Employees hired by CDDs "don't have any more right to regulate the speech and conduct than a little town that has just been incorporated," Kaney said.

Crowder's crusade is drawing support from neighbors.

"I don't like it when the big boys bully people," Ed Aquilino said last week. "I'm all for him. It's the American way. It's his right."

Crowder shrugs. He says he can't afford an attorney. He doesn't know if he's doing any good by protesting, but he plans to continue.

"This is all I know I can do," he said. 


 
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