“I was just shocked,” he said of the $30,000 in fines and foreclosure notice. “I said, ‘Oh, boy. I’m screwed.’”
His attorneys with the Institute for Justice, a national organization focused on individual liberties and property rights, say it’s an example of overzealous municipalities valuing revenue over fair code enforcement — a problem they say is rampant nationwide. In Dunedin, located about 25 miles west of Tampa, the city fined Ficken $500 per day without notice while, clueless to the impending financial disaster, he remained in South Carolina trying to put his mother’s home on the market, the lawsuit says.
The lawsuit, filed May 7 in state court, argues that Dunedin’s code-enforcement scheme violates the Eighth Amendment’s ban on excessive fines, saying the punishment is disproportionate to the offense and that the city never considered Ficken’s ability to pay. The amendment’s excessive-fines clause was recently applied to states and municipalities in February following a Supreme Court ruling involving civil asset forfeiture. The Institute for Justice led the charge in that case, too.
“Losing your home because you inadvertently let your grass get too long is the very definition of an excessive fine,” Ari Bargil, an attorney at the Institute for Justice, said in a statement. “No one should face crippling fines, let alone foreclosure, for trivial code violations."
The city could not be immediately reached for comment late Sunday night, but Dunedin Mayor Julie Ward Bujalski (D) defended the city’s code enforcement in an interview with the Tampa Bay Times, saying Ficken’s case was an outlier because he was a repeat offender.
“We are not interested in making money on the backs of our citizens,” she said.
Ficken’s lawn troubles began after his elderly mother fell ill in 2015. That’s when he started making regular, extended trips to be at her bedside in South Carolina while she required daily care, Ficken said.
The first time he let the lawn get too long, the city cited him but did not fine him; city code prohibits grass longer than 10 inches tall. He mowed it down to an acceptable height upon his return from South Carolina, and thereafter regularly hired a neighbor or friend to periodically mow for him any time he was away, he said.
That worked out fine for the next few years — until last summer, Ficken said. He knew something was perhaps going wrong when he kept contacting his friend, Russ Kellum, to make sure he was mowing the lawn, but got no response.
When he returned this time, on July 19, 2018, his front lawn looked like a prairie. He knocked on his Kellum’s door.
“Is Russ okay?” he asked.
Actually no, the family member told him. Kellum died unexpectedly.
Little did Ficken know, according to the lawsuit, he had already been fined about $7,000 by then. The city had begun fining him at a rate of $500 per day starting July 5 — more than a week after Kellum died and stopped coming to mow, the lawsuit says.
Ficken attempted to cut the grass on July 21, according to the suit. He gave up when his mower broke before he completely finished the job, leaving an awkward-looking half-mowed lawn, he said.
But still, Ficken had “no idea” he was being fined every day that he waited to manicure the lawn properly, the lawsuit says, and so he wasn’t exactly rushing to buy a new mower. For a man living on a fixed income and food stamps, it wasn’t exactly the most affordable remedy either, he said.
The city, however, was also in no rush to notify Ficken. According to the lawsuit, if the city believes someone is a “repeat violator,” inspectors are not required to issue warnings or notices of fines to the resident. Because Ficken had been cited before, the city considered him a repeat offender. The Institute for Justice argues this failure to notify violated Ficken’s due process rights under the 14th Amendment.
Attorneys say he was not notified of the fines until Aug. 20, when a city inspector dropped by to warn him verbally that if he didn’t mow, he was “going to get a big bill from the city.” The fines stopped after Ficken bought a lawn mower and got to work within a day, to the city inspector’s approval. He received notice of a Sept. 4 hearing regarding the past noncompliance, but was unable to attend, as he was already scheduled to be back in South Carolina by then.
Still without Ficken’s knowledge, the fines began again after he left, and after the person he hired to mow was late to the job.
He learned of the full extent of his financial trouble upon his return later in September: A Sept. 18 letter in the mail informed him that two liens had been placed on his house, totaling nearly $30,000.
“I think everybody agrees that $30,000 just for being tardy on mowing the lawn [is outrageous],” he said, “especially if you’re getting fined hundreds of dollars a day without even being informed about it.”
The city sent him a letter Feb. 13 warning that if he didn’t cough up the $30,000 in 15 days, the city would have “no choice” but to pursue foreclosure. He didn’t, and couldn’t, pay. The city moved to foreclose last Tuesday, “after resolution of the case could not be agreed upon by Mr. Ficken,” the city said in a statement to WTVT. And that’s when Ficken sued.
As the Institute for Justice notes, although the Supreme Court recognized for the first time in February that the Eighth Amendment’s ban on excessive fines applies to states and local municipalities, it didn’t set a standard for what “excessive” means. The Supreme Court case involved civil asset forfeiture, in which the state of Indiana seized a man’s $42,000 Land Rover after he was arrested for selling heroin worth a couple hundred dollars. The high court didn’t rule whether the seizure of the Land Rover was “excessive.” It only reversed an Indiana Supreme Court ruling finding that the ban on excessive fines didn’t apply to states.
Still, the court’s ruling provided stronger footing for cases like Ficken’s, limiting the states’ powers to impose enormous fees.
“Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties,” Supreme Court Justice Ruth Bader Ginsburg wrote in the opinion. “They can be used . . . to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue” — just as the Institute for Justice argues in Ficken’s case.
The Institute for Justice said it intends to argue that the city’s failure to consider Ficken’s inability to pay the fine for his overgrown grass is part of what defines it as excessive.
“All over the country, citizens are being fined hundreds or thousands of dollars for minor violations and then threatened with the loss of their property or other serious consequences if they can’t pay up,” attorney Andrew Ward said in a statement. “The Founders knew that the government would always be tempted to levy outrageous penalties. It is past time for courts to give meaning to the Eighth Amendment’s prohibition on excessive fines.”
Announcing the lawsuit in a news conference from outside his home last week, Ficken stood on the driveway. Next to him, the lawn looked neat.