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Second federal court upholds $30K in fines for Dunedin homeowner’s tall grass

The homeowner’s attorney said they plan to continue fighting the fines.
James Ficken, who accrued nearly $30,000 in code violation fines in 2018 for an overgrown lawn, sued Dunedin in 2019 after the city moved to foreclose on his home, setting off a three-year legal battle.
James Ficken, who accrued nearly $30,000 in code violation fines in 2018 for an overgrown lawn, sued Dunedin in 2019 after the city moved to foreclose on his home, setting off a three-year legal battle. [ Institute for Justice ]
Published Jul. 20|Updated Jul. 21

DUNEDIN — A second federal court has ruled that a homeowner will have to pay nearly $30,000 in code violation fines because his lawn was overgrown in 2018, affirming a lower court’s ruling from last year.

James Ficken, 72, sued Dunedin in 2019 after the city moved to foreclose on his home, setting off a three-year legal battle. Ficken and his lawyers argued that, not only were the fines excessive, but they were handed out with no notice. That same week, Ficken’s case went viral on social media and national news media outlets picked up the story. Readers and viewers railed against Dunedin’s city government, accusing officials of going overboard in handing out fines.

Now the 11th U.S. Circuit Court of Appeals has ruled that the city did no wrong, finding the fines as not “unconstitutionally excessive.”

“If a $30,000 fine for not mowing your lawn isn’t excessive, what is?” Ficken’s attorney, Andrew Ward, wrote in a statement from the Institute for Justice, a public interest law firm with a mission of ending abuses of government power.

Ficken and his lawyers plan to pursue additional action. That could include appealing the case to the U.S. Supreme Court. Lead attorney Ari Bargil said he did not know yet which route they would pursue.

“The government shouldn’t have the power, except in the most outrageous of circumstances, to wreak severe financial harm on citizens. (Ficken’s) case is a perfect example of what happens when the government abuses that power,” Bargil said, claiming the city uses its “residents as their personal ATMs.”

Sue Burness, the city’s director of communications, did not respond to a call to her cellphone seeking comment.

The city has taken steps to modify its code enforcement procedure since Ficken filed his lawsuit, placing a greater focus on code compliance over enforcement, according to a statement.

The city of Dunedin has defended its fines, arguing that Ficken was an absentee landlord with a history of code violations. Records show Ficken had 15 citations for code violations dating back to 2007.

The city also has pushed back on Ficken’s claims of being blindsided. They argued code enforcement officials warned Ficken in 2015 that he was a “repeat violator,” meaning any subsequent grass growth past 10 inches could cost him $500 per day, according to court records.

Bargil said Ficken has lived in the home “full time for the relevant period of the case.” He said Ficken only averaged one warning per year for tall grass since 2007 and had no other violations between 2015 and 2018.

In July 2018, Ficken left for South Carolina for two weeks to take care of his late mother’s affairs. During that time, the man who mowed his lawn unexpectedly died. When Ficken returned, his mower broke, he said.

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Nearly two months passed with no notice from the city, he said at a 2019 news conference. In that time, Ficken had no clue of the tens of thousands of dollars in fines he was accruing.

Related: Dunedin fined a man $30,000 for tall grass. Now the city is foreclosing on his home.

It wasn’t until a code enforcement official making the rounds told Ficken to expect a “big bill from the city,” according to the lawsuit.

In 2020, Dunedin passed an ordinance capping the total fine for a continuing violation at 20 times the original daily amount. The maximum daily fine is $500, making the maximum total fine possible $10,000.

Bargil said the city’s moving in the right direction, but he doesn’t think it’s enough.

“What it really does is it reflects an acknowledgment on their part that they’ve had the wrong motivations with respect to code enforcement and have been going about it the wrong way,” he said.

Editor’s note: This story has been updated to clarify the description of the Times’ efforts to seek a comment from a spokesperson for the city of Dunedin.

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