Excessive fines? Florida city hits homeowners with massive penalties

Article Courtesy of  USA TODAY    

By Kristine Phillips

Published July 24, 2019


DUNEDIN — Kristi Allen read the letter and thought it had to be a scam. It said she owed $92,600 in fines for overgrown vegetation and a stagnant swimming pool at a house she no longer owned. She must pay in two weeks, the letter said, hinting that she could be sued if she didn’t. Including interest charges and other fees, her debt swelled to $103,559, about twice her yearly income. Three months later, in late 2018, the city of Dunedin sued to collect, setting off another legal fight over how local governments use their power to impose heavy fines on citizens. What Allen, 38, a mother of two, thought had to be a scam turned into a nightmare she said could bankrupt her family. “I haven’t woken up from it yet,” she said.

Dunedin, a small seaside city outside Tampa, cracks down on code violations, saddling homeowners with massive fines while its revenue grows. In 5 years, the city has collected nearly $3.6 million in fines – sometimes tens of thousands at a time – for violating laws that prohibit grasses taller than 10 inches, recreational vehicles parked on streets at certain hours or sidings and bricks that don’t match. The Supreme Court ruled in February that local governments can’t impose excessive fines. The decision is among the first constraints by the federal government on how much money cities and states can charge people for everything from speeding to overgrown lawns. But the court did not say what should be considered excessive, leaving local governments and residents with a question: How much is too much? Fines are a reliable source of revenue for cash-starved cities, and have become a big – and rapidly growing – business for local governments. States, cities and counties collected a total of $15.3 billion in fines and forfeitures in 2016, according to the most recent financial records collected by the U.S. Census Bureau. That’s a 44% jump from a decade earlier.


The Supreme Court’s decision should be a wake-up call for local governments that trap people in a never-ending cycle of debt, said Lisa Foster, a former Justice Department official who runs the Fines and Fees Justice Center, a New York-based advocacy group. But the ruling has not reined in some of the most aggressive practices, in Dunedin and elsewhere. Dunedin officials declined to be interviewed but insisted through a spokesman that the fines they impose were neither excessive nor abusive. Dunedin’s code enforcement policies are meant to “protect the integrity of neighborhoods and the quality of the community,” spokesman Ron Sachs said. City and county records show that at least 33 homeowners owed the city $20,000 or more in fines as of May. That tally does not include dozens of bank- and company-owned houses with hundreds of thousands of dollars worth of code violations. In some cases, the fines seem to have more to do with aesthetics than public safety.


The city fined a man nearly $30,000 because of a “chronic” overgrown yard. It fined a couple $31,000 for fixing their roof without a permit after a tree fell on it during a hurricane. “They’re using a shotgun to kill a mouse,” said Bill Prescott, who was fined $43,000 because of an inoperative car and a pile of dried leaves in his front yard and plants that grew over the street. Prescott, who lives with his wife in Tallahassee, said he became ill last year and couldn’t make the long drive to Dunedin to maintain their second home. Fines of $250 a day piled up without his knowledge, Prescott said. “It just leaves me scratching,” he said. ‘Almost Gestapo-like’ Allen moved to Dunedin in 2005 to be with her boyfriend, Keith, who later became her husband. She bought a bungalow-style house on the same street where he was raised. It had a swimming pool and a backyard next to a popular hiking trail, so for someone who loves swimming and the outdoors, it seemed perfect. They planted palm trees in the yard and restored the pool that had sat empty for years.


Then the financial crisis hit. Allen, a radiologic technologist, took a pay cut and lost her house in the wave of foreclosures that washed over Florida. She signed an agreement with U.S. Bank National Association allowing the foreclosure and moved out. She thought Dunedin was behind her. In early 2014, three years after Allen moved out, a code inspector came to the house, which had been vacant. Brown palm fronds littered the overgrown backyard. A neighbor told the inspector that something dead may have been rotting there. The swimming pool had turned into a bright green, mosquito-infested cesspool. City officials sent notices of the problems to Allen, who was still listed as the homeowner in county property records. Then they started fining her $100 a day. The letters mailed to Allen were returned undeliverable with no forwarding address. The city kept fining her anyway.

Allen said none of this should have been her problem. As far as she knew, she relinquished ownership of the house when she agreed to the foreclosure in 2011. Her name stayed in property records because the foreclosure was not finalized until late 2014. By then, the city had been fining Allen for several months. (U.S. Bank National Association said it did not have control of Allen’s loan and referred questions about the case to the company that serviced Allen’s mortgage, which did not immediately respond.) The daily fines continued for the next two years until a code inspector visited the house again and saw it had been cleaned and renovated. For much of the time the fines were accumulating in 2015 and 2016, Allen no longer owned the house. Seeking to collect, Dunedin’s city attorney mailed the demand letter to Allen – this time to her current address. She looked up the attorney’s name online and realized the letter was real. “It defies common sense that someone could all of a sudden owe $100k where they had no idea there was even an issue,” her attorney, Ben Hillard, said.


Allen isn’t the only homeowner to accuse Dunedin of overzealous code enforcement practices and say they were blindsided by a huge fine that accumulated for years. Others, such as Guillaume Picot, said they were fined daily even as they tried to fix the violations. After a tree smashed a corner of the roof of Picot’s rental property during Hurricane Irma two years ago, he bought $300 worth of wood and other supplies at Home Depot and fixed the damage himself. The city fined him $200 a day for fixing the roof without a permit. The fines racked up while Picot scrambled to find a locally licensed roofer who would sign off on his repairs. He and his wife owe about $31,000. “They’re not human with their decisions,” he said of Dunedin officials.

Many of the debts have swelled so much that the city can’t collect them at all. Even when Dunedin settles for a smaller amount, it is less forgiving than other cities, said Chad Orsatti, an attorney from nearby Palm Harbor who said he has settled several Dunedin code enforcement cases on behalf of homeowners. “It’s almost Gestapo-like,” Orsatti said. “You can have a screw in the wrong spot. It’s an easy fix, but until you get that contractor to come back out there and sign off on it, those fines are running every day.” Sachs, the city spokesman, declined to comment about Allen’s case and those of other homeowners. He said fewer than 2% of the city’s code enforcement disputes end up with cumulative fines, and those that do involve homeowners “who have chosen to stay in violation” and have shown “disdain, disregard and disrespect for the rule of law and their neighborhoods.” Sachs said code enforcement is not about generating revenue for the city. In Florida and elsewhere, unpaid fines can be attached to someone’s property through liens. That allows cities to foreclose and take the property to collect what they’re owed.


In a performance review from 2015, a former Dunedin code enforcement officer, Michael Kepto, wrote that his goal was to “continue to be a financial asset to the city by the amounts of liens collected.” Kepto said city officials never asked him to pursue more liens to generate revenue. He said the city was inundated with vacant properties that banks had foreclosed at the time he wrote the performance review. Dunedin expects to make a little more than $1 million this year from fines and forfeitures. That’s about five times as much as the city made a decade ago. ‘Deprivation and punishment’ The ways in which cities levy fines has been under scrutiny since at least 2015, when Ferguson, Missouri’s law enforcement became a national symbol of racial bias in policing after the shooting death of a young black man, Michael Brown, at the hands of a white police officer. The Justice Department cleared the officer of wrongdoing but published a scathing report describing the city’s municipal court system as a moneymaking enterprise that trapped poor and predominantly black residents in an endless spiral of debt and incarceration. Hard-to-pay fines spring up seemingly everywhere, as cities look for ways to punish violations and collect money without raising taxes.


In Miami, traffic violations usually add up to hundreds of dollars. Collection agencies also add a 40% surcharge, meaning someone with several tickets can owe fines of $3,000 to $7,000. Doraville, Georgia, fined one homeowner $1,000 for stacking firewood in his backyard, according to a lawsuit that accuses the city of aggressive ticketing practices. A government newsletter said in 2015 that Doraville’s court system, which collects the fines, brings in “over $3 million annually” and “contributes heavily to the city’s bottom line.” “What we have seen is an increasing tendency of municipalities to criminalize, or at least heavily fine, behavior that not many people would describe as bad,” said Joanna Weiss, co-director of the Fees and Fines Justice Center. “Letting your lawn grow too high arguably is not the most serious offense.” Charles Thompson, executive director of the International Municipal Lawyers Association, said most fines, which are generally a small portion of local governments’ revenue, are in place to correct bad behavior. “The interest of government is not to collect revenue from bad behavior. It’s to get compliance,” he said. Fines in some cases have become so big that they make it impossible for people to pay, let alone fix the violations that got them in trouble, said Robert Eckard, a Tampa lawyer representing another Dunedin homeowner. “It’s like setting someone up for failure,” Eckard said. “It’s deprivation and punishment for people who don’t have the income to remedy the problem.” Last year, the chief justice of Ohio’s Supreme Court condemned governments’ reliance on fines to make money. “Courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments,” Chief Justice Maureen O’Connor wrote in a letter to her fellow judges urging them not to succumb to pressure to generate revenue through the court system.


In February, the U.S. Supreme Court took a step to upend cities and states’ ability to decide for themselves when fines are appropriate. That case started when prosecutors in Indiana went to court to demand that a man convicted of a minor drug charge forfeit his $42,000 Land Rover. The car was worth four times as much as the maximum possible fine for the crime, but the government’s attorneys argued that the Eighth Amendment’s prohibition on excessive fines did not apply to cities and states. The Supreme Court disagreed. It ruled unanimously that the Eighth Amendment, which forbids “excessive fines,” restricts the fees state and local governments can impose. “Protection against excessive fines has been a constant shield through Anglo-American history for good reason,” Justice Ruth Bader Ginsburg wrote for the court. “Such fines undermine other liberties.” The Supreme Court’s decision alone will not stop municipalities’ aggressive practices, said Vanita Gupta, former head of the Justice Department’s Civil Rights Division who oversaw the Ferguson investigation. Instead, she said, it will take more lawsuits to flesh out the limit for what constitutes an excessive fine. One lawsuit was filed in May against Dunedin.


The Institute for Justice, a civil liberties group, sued the city after it fined a homeowner nearly $30,000 over an overgrown lawn. City officials, who described the homeowner as a chronic violator, also sought to foreclose on his house. The ability to impose heavy fines and to foreclose on people’s property “are awesome powers” that should be used against institutional landlords, not homeowners, said Ari Bargil, an attorney for the Institute for Justice. ‘Look at who you’re hurting’ Last year, four days before Christmas, Allen received another letter from the city. It told her she had been sued. “How much are they suing you for?” Allen recalled her husband asking. “$103,” she responded, giving a shortened version of the debt she could not pay. Their son overheard and offered to use his own savings to pay his mother’s debt. “He’s like, ‘Oh, Mommy, I have $103. I’ll give you $103,’ ” Allen said, her voice shaking and her eyes welling up with tears as she remembered the day Christmas was ruined. The city argued that Allen should pay, even as it acknowledged that her mortgage lender had taken control of the house.


Dunedin’s attorneys cited a state statute saying the lien the city placed on the house where the violation occurred applies to other personal property Allen owned. Hillard, Allen’s attorney, said forcing her to pay violated her right to due process because she didn’t know the violations even existed. Liens, Hillard argued, are tied to properties, not to a person.


Allen and her husband, a garage door technician, own a house just outside of Dunedin. They had planned to buy a new house and perhaps replace an old car. They had planned to save for college for their 10-year-old son and 7-year-old daughter. None of that is happening, Allen said, because the city’s lawsuit “totally crippled us.” To defend herself, Allen has spent thousands of dollars in legal expenses, each bill has grown bigger than her monthly mortgage. She said she has started paying for bills, such as her children’s summer camp, with her credit card. Soon, she’ll do the same with attorney fees, which she pays in installments. If she loses, Allen will be liable not only for the fines but also for Dunedin’s attorney fees. The city could garnish her paychecks. “I need my paycheck to live, for my children, for my house, for my car,” Allen said. She said she finds it hard to concentrate at work because she’s so worried she won’t be able to pay her lawyer, let alone for her children’s education. “I know it’s not personal to them. But it’s personal to me and the other people that they are doing this to,” Allen said, referring to Dunedin officials. “Take a look at who you’re hurting and how you’re hurting them. Is it worth it?”