$30K Fine For Overgrown Grass Could Cost Dunedin Man His Home

DUNEDIN, FL ? A Dunedin homeowner's $30,000 fine for failing to cut his grass has been upheld by the 11th Circuit Court of Appeals, putting the resident in danger of losing his home to foreclosure.

On Thursday, the court of appeals ruled that fining Dunedin resident James Ficken nearly $30,00o for not cutting his lawn does not violate the Eighth Amendment's prohibition on levying excessive fines.

In a case that's been lingering in the courts for four years, 69-year-old James Ficken, a retired radio producer now living on a fixed income in a two-bedroom, one-bathroom home in Dunedin, said he forgot to mow his lawn in March 2015 because he was traveling back and forth to South Carolina to care for his elderly mother.

During that period, Ficken's grass grew longer than the 10 inches permitted in Dunedin's municipal code.

City Code Enforcement Inspector Michael Kepto notified him of the violation, and Ficken sent Kepto an email on March 30, 2015, requesting more time "to get the lawn mowed" because he was out of town caring for his mother and would not return until April 12, 2015.

As soon as he returned home, Ficken said he promptly cut his grass. Ficken said he was never issued a fine for that offense.

However, the city said Kepto responded to his email, saying he would not extend the compliance date "based on the past history for this property and mowing. ??

Kepto also told Ficken the case would be presented to the Code Enforcement Board and "any time in the next five years we document that the property is overgrown, you could receive up to a $500 per day lien as a repeat violation. I would strongly suggest that you schedule regular mowing for this property to prevent any liens being placed."

According to the court order, Ficken expressed his disappointment that Kepto declined to extend the compliance date and offered several reasons for the property?s lack of maintenance, including an attempt to contact a lawn service provider that went unanswered.

On April 7, 2015, Ficken emailed Kepto saying the lawn had been mowed by a company he hired that day and said, "I hope you approve and cancel the code board hearing.?

But Kepto told him the Code Enforcement Board would still hear the case, saying, ?The board will find that you were not in compliance by the compliance date, however, you are in compliance
now.?

Kepto added, "This means that anytime within the next five years that we see any of your properties with overgrowth, there will be a photo taken to document the violation and each day the violation occurs, you will be sent back to the Code Enforcement Board for a repeat violation, which could result in a higher fine of $500 per day. This is to encourage you to maintain the property without code enforcement becoming your property manager, advising you of the condition of the property."

On May 1, 2015, Ficken requested a continuance of the hearing because he was still in South Carolina caring for his mother. His request was denied, and the case was heard by the board on May 5, with Ficken sending a friend to represent him.

The board issued a written order on May 13 that noted the property had been in violation but was currently in compliance. Although the board did not impose a fine at that time, the written order told Ficken that, ?This matter is deemed to be of a recurring nature and should it recur, by law the board can levy fines up to $500 a day plus daily interest and any recording fees."

When Ficken's mother died in 2018, Ficken traveled to South Carolina for several weeks to prepare her condominium for sale. He said he hired a friend to cut his lawn, but the friend died while he was gone and his grass grew more than 10 inches.

On July 5, 2018, Dunedin Code Enforcement Officer Thomas Colbert reported that the grass was, once again, taller than 10 inches.

When Ficken, who is being represented by the Institute for Justice, returned to Dunedin on July 19, 2018, he said he had no idea he was being assessed $500 a day in fines. He said he didn't receive a letter or phone call from the city notifying him.

Ficken said he attempted to cut his lawn upon his return, but his mower broke, and he was only able to partially cut the grass.

With his mower still broken, Ficken admitted he let another month go by without mowing his grass, not realizing the fines were piling up.

In August 2018, Ficken happened to be outside when Colbert dropped by and told him he could expect a "big bill from the city." Ficken said he promptly went out and bought a new lawnmower.

On Aug. 22, 2018, Colbert returned and confirmed that the length of the grass met city codes but told Ficken that there would be a hearing on Sept. 4 for his previous violations.

Ficken asked to reschedule the hearing because he had already purchased a plane ticket to return to South Carolina to handle some issues with his mother's estate. The city declined to reschedule the hearing and Ficken returned to South Carolina, missing the hearing.

In his absence, the city imposed the maximum $500 per day fine for 47 days, totaling $23,500. The city also added violations for his 10-day trip to South Carolina, bringing the total fine to $28,976.

When Ficken said he didn't have the money to pay the fine, the city sent him a letter telling him foreclosure proceedings would be initiated unless payment was made to the city within 15 days of the date the letter was sent. When the city didn't receive payment, the city voted to foreclose on Ficken's home on May 7, 2019.

In a news release, the city said the appeals court's decision Thursday affirms a federal district court judgment in April 2021.

"While the city has prevailed in this appeal case, in addition to the federal district court judgment in April 2021, the city continues to focus on code compliance policies and procedures which serve our residents with information and guidance on compliance," said the city.

"The 11th Circuit U.S. Court of Appeals has issued a thorough and detailed judgment endorsing the city's legal defenses to Mr. Ficken's case," the statement said. "We appreciate the time the court took to carefully review the record and legal arguments to reach its conclusions based on an informed understanding of the relevant facts and law. The 11th Circuit U.S. Court of Appeals affirmed the city did not violate Mr. Ficken's state or federal constitutional right to due process or impose unlawful fines."

Institute for Justice attorney Ari Bargil, however, said the court's decision sets a dangerous precedent for homeowners.

The decision "will further embolden cities like Dunedin to impose crippling financial penalties against unsuspecting residents," he said.

Bargil said the Institute for Justice plans to continue fighting on behalf of Ficken.

?The court?s ruling accepted the argument that the Constitution provides no protection from the imposition of limitless fines, assessed without notice, that can reach thousands, if not millions of dollars?even for trivial things like tall grass," Bargil said. "It should be clear that fining a man into foreclosure for letting his grass get too long is disproportionate to that offense. We?re hopeful that the full appeals court will see this case for what it is and throw out this decision."