Dunedin, FL Foreclosure

Jim Ficken is a 69-year-old retiree living in a modest two-bedroom, one-bathroom home in Dunedin, Florida. It’s about half an hour northwest of Tampa and Saint Petersburg. Jim, who retired from producing radio programs, lives on a modest fixed income.

The story starts in 2014, when Jim’s elderly mother got sick and he began making regular trips to her condo in South Carolina to help care for her. During one of those trips, in May 2015, Jim forgot to mow his grass, which grew longer than the 10 inches permitted in Dunedin’s municipal code. A code officer noticed, and Jim promptly cut the grass. Jim was never fined for the offense.

But, three years later, that encounter would come to haunt Jim. By 2018, his mom had passed away. On May 19, he left Dunedin to work on fixing up her old condo for sale. He hired a friend to cut the grass while he was out, but shortly after Jim had left, his friend passed away unexpectedly. With no one mowing the lawn, the grass did what grass in Florida does: it grew.

On July 5, a code officer noticed the grass. And because Jim had already been found to have allowed his grass to grow too tall three years earlier, the officer invoked Dunedin’s repeat-offender policy, and the city began to assess fines immediately.

When Jim got back two weeks later, on July 19, he had no idea he was incurring $500 in fines each day. He didn’t get a letter or a phone call from the city. But he could see the grass was too long, and he cut almost all of it a few days later. Unfortunately, his old mower malfunctioned in the process, and he didn’t cut it perfectly.

Another month passed. Without knowing about the fine, and with a broken mower, Jim hadn’t mowed. Other cities might have just mowed the lawn and billed him. But Dunedin didn’t, and the fines kept adding up.

Finally, around August 20, the officer arrived to look at the grass, and—because Jim happened to be standing outside at just the right moment—hinted at what was happening. He told Jim there would be a “big bill from the city.” Jim responded the way any decent citizen would: he immediately went out, bought a brand-new lawnmower and cut the grass.

On August 22, the officer returned and confirmed the grass was short enough. Still, he told Jim there was going to be a hearing about the violation two weeks later, on September 4. With no idea he was facing a $23,500 fine, Jim asked to reschedule the hearing because he had already purchased a plane ticket to return to South Carolina to address additional issues related to his mother’s estate.The city refused. Jim returned to South Carolina, missed the hearing and figured that, at most, he would have to eat a few hundred dollars in fines. He mistakenly believed that his fine would be less than the cost of rebooking his flight.

At the hearing, however, the city imposed the maximum $500 per day fine for all 47 days—$23,500. The city also alleged an ongoing violation during the second trip; that violation was later deemed to have lasted 10 more days. With costs on top, the total fine came to $28,976.

Jim was shocked. Like most people, he doesn’t have $29,000 to spare. So, he exercised his right to ask the city to reconsider.[2]He recognized that he should pay a fine—but something fair. After all, the city was supposed to consider “the gravity of the violation” and “actions taken by the violator to correct the violation.”[3]But the city refused.

Now the lawn police are coming for the house. On May 7, 2019, the city voted to foreclose on Jim’s property. That’s right: Jim Ficken could lose his home because the grass grew too long.

Legal Claims

For 800 years—since the signing of England’s Magna Carta in 1215—the law has recognized that governments abuse their power when they issue crushing fines. English kings used fines to harass political enemies. After the Civil War, Southern states fined newly freed slaves back into bondage. Reflecting on those abuses, the U.S. Supreme Court ruled in February 2019 that the Eighth Amendment prohibits state and local governments from imposing excessive fines.[4]So if Jim’s $29,000 fine for uncut grass is “excessive,” it’s unconstitutional.

Despite the recent ruling, however, there is surprisingly little law on what makes a fine excessive. The Supreme Court has ruled on the question only once.[5]In 1998, the court considered the case of a man who tried to take $357,000 out of the country. That’s completely legal to do; you just have to declare that you’re doing it. The man didn’t, not for any nefarious reason, but just because he was wary. In response, the government tried to take away all $357,000. When the case got to the Supreme Court, the justices decided that the fine was unconstitutional because it was “grossly disproportional to the gravity of [the] offense,” which was just a recordkeeping crime.

That ruling ought to cover Jim. A $29,000 fine—or losing a home—is grossly disproportional to the gravity of a few weeks of long grass. It doesn’t sound like something that could happen in America.

And there’s another reason Jim’s fine is excessive. Legal tradition recognizes that a person’s ability to pay should be considered when assessing fines. Fines should not be financially ruinous to an offender. But the Supreme Court has never officially said that an offender’s ability to pay is a required component of the Eighth Amendment’s proportionality analysis. In fact, in the recent opinion applying the Excessive Fines Clause to state and local governments, Justice Ruth Bader Ginsburg specifically noted that this remains an open question.

The answer to that question matters to Jim. He’s almost 70 and living on a limited fixed income. The city didn’t consider that before it imposed a $29,000 fine. The law ought to require otherwise. No one’s saying you shouldn’t have to mow your lawn. But the fine has to be fair—and fairness includes thinking about the financial circumstances of the person who has to pay.

Finally, there’s just no reason to subject someone to a limitless fine for uncut grass. Without some kind of a cap, a $500 daily fine is practically designed to shoot sky high.[6]

A “Well-Oiled” Machine

Ultimately, this case is bigger than Jim. In 2007, the entire amount of fines that Dunedin imposed for code violations was $34,000—only a little more than the amount the city is now demanding for Jim’s lawn alone. A decade later, in 2017, the city was raking in 20 times as much, about $700,000. In fiscal year 2018, it collected almost $1.3 million in total fines.The city’s code‑enforcement attorney—the one who refused to negotiate with Jim—calls the system a “well‑oiled machine.”[7]

It represents a larger trend: governments imposing crippling and excessive fines and fees and then using abusive tactics to collect. For example, Florida is consideringtaking away the restored voting rights of felons who haven’t been able to pay court fees. Nationwide, about forty states will take away your driver’s license if you owe certain fees to the government. In the most egregious cases, a city might even give a private prosecutor a financial incentive to go after minor code violations and then charge residents for their own prosecutions.

And Jim Ficken might lose his home because the grass was too long. But not if a court has anything to say about it. Jim is taking the fight to the city—not just for himself, but to lay a legal stepping stone for anyone else victimized by excessive fines.

The Litigation Team

Jim is represented by Institute for Justice Attorneys Ari Bargil and Andrew Ward.

About the Institute for Justice

The Institute for Justice is a public-interest nonprofit law firm leading the fight against abusive fines and fees. IJ litigated Timbs v. Indiana, the U.S. Supreme Court case recognizing that the Eighth Amendment’s protection from excessive fines applies to state and local governments. IJ has also challenged for-profit code enforcement in Indio and Coachella, California, and abusive ticketing in Doraville, Georgia, and Pagedale, Missouri.