Judge denies city’s bid to dismiss lawsuit in controversial code enforcement case

A judge in the Middle District Court of Florida on April 22 denied the city's motion to dismiss the lawsuit, which stemmed from homeowner Jim Ficken facing $30,000 in fines and foreclosure actions.

DUNEDIN — Cutting through the legal weeds on a highly publicized case of a homeowner at odds with the city over unmowed grass, the latest is a court ruling expected in several weeks.

A judge in the Middle District Court of Florida on April 22 denied the city's motion to dismiss the lawsuit, which stemmed from homeowner Jim Ficken facing $30,000 in fines and foreclosure actions.

The court noted that it failed to rule on the motion to dismiss “as a result of its heavy case load” and that “to preserve judicial economy, the court will deny the motion to dismiss and rule on defendants’ motion for summary judgment," wrote Jay Daigneault, an attorney for the city, in a memo April 24.

He said with both parties expected to file responses to the others’ motion for summary judgment, the court will have a full record upon which to base its ruling, which he believes will happen within six to eight weeks.

This will permit the court to look beyond the amended complaint and perform a thorough review of the submitted evidence, unlike a review of the motion to dismiss, Daigneault wrote.

"In short, the ruling on the motion to dismiss was not a substantive event as the court reached neither the facts nor the law of the case — it simply made no sense procedurally for the court to rule on the motion to dismiss when motions for summary judgment had already been filed,” he wrote.

According to Ficken's law firm, the Institute for Justice, his legal challenge stems from a two-month period in the summer of 2018, during which Ficken was in South Carolina tending to his late mother’s estate. While he was out of town, the man he had hired to tend to his lawn died unexpectedly and the grass was left to grow.

Ficken eventually cut the grass himself after he returned home, but by then it was already too late. Dunedin had been fining him $500 per day for months, starting when he was out of the state, an IFJ news release said.

“Dunedin made regular visits to Jim’s property to check for noncompliance, but never once tried to tell Jim that he was under investigation or that he was racking up violations,” IFJ Attorney Andrew Ward said. “But the government is supposed to provide reasonable notice. The city’s treatment of Jim violated his right to due process, and we look forward to showing just that in court.”

However, city officials have said the property has a long history of code violations that resulted in fines imposed.

“This issue is about compliance. This is about requiring a property owner maintain his property without prompting and without expenditure of city funds,” City Manager Jennifer Bramley said in May 2019.

In a statement, the city said it had to intervene 12 times since 2007 to get Ficken to properly maintain his property. Each time, the property was brought into compliance but only after intervention.

It was not until 2015 that code enforcement staff recommended repeat offender status in the case after receiving numerous complaints from the neighborhood regarding the property on Lake Marion Lane, Bramley had said.

The code enforcement inspector contacted Ficken on behalf of Suncoast First Trust about the property shortly after June 5, 2018, and informed him that his grass needed to be cut because it could cost him up to $500 a day as a repeat offender, Bramley said.

This case was brought to the Sept. 4, 2018, Code Enforcement Board hearing, which resulted in two separate board orders that total $23,500 plus interest and recording costs.

On May 7, 2019, the board authorized the city attorney’s office to file foreclosure actions.

The case had drawn national media attention in the past year, with Ficken's attorneys saying they have heard from several other homeowners about what they consider overzealous code-enforcement actions in the city.

City officials have said some of the media coverage has been one-sided. Nevertheless, they are addressing their code-enforcement policies. Mayor Julie Ward Bujalski suggested at a February work session the need to make change is so great that perhaps code enforcement requires a new name, such as Code Compliance Department or Community Betterment Department.

“I think it needs a new name, a rebranding … because code enforcement has such a negative connotation,” she said.

The case is considered by the institute to be part of a broader effort to put a stop to out-of-control municipal fines. The IFJ news release said Ficken has won "round one in tall-grass lawsuit."