City of Fort Lauderdale v. Scott

• Decision Date: 23 August 2012
• Docket Number: No. 10–61122–CIV.,10–61122–CIV.
• Parties: The CITY OF FORT LAUDERDALE, Plaintiff, v. Hezzekiah SCOTT, Defendant/Counter–Plaintiff, Virgil Bolden, Gloria Burnell, Karen McNair, and The Estate of Walter Tirschman, Counter–Plaintiffs/Third–Party Plaintiffs, v. The City of Fort Lauderdale, Counter–Defendant, Alfred G. Battle, Jr., Director of Community Redevelopment Agency, in his official and individual capacities, Counter–Defendant/Third–Party Defendant.
• Court: U.S. District Court — Southern District of Florida

888 F.Supp.2d 1279

The CITY OF FORT LAUDERDALE, Plaintiff,

v.Hezzekiah SCOTT, Defendant/Counter–Plaintiff,Virgil Bolden, Gloria Burnell, Karen McNair, and The Estate of Walter Tirschman, Counter–Plaintiffs/Third–Party Plaintiffs,

v.The City of Fort Lauderdale, Counter–Defendant,Alfred G. Battle, Jr., Director of Community Redevelopment Agency, in his official and individual capacities, Counter–Defendant/Third–Party Defendant.

No. 10–61122–CIV.

United States District Court,

S.D. Florida.

Aug. 23, 2012.

Alain E. Boileau, Alain E. Boileau, P.A., Marilynn Koonce Lindsey, United States Attorney's Office, Fort Lauderdale, FL, for Plaintiff/Counter–Defendant.

Colette Kienle, Fort Lauderdale, FL, for Defendant/Counter–Plaintiff.

Sharon Bourassa, Plantation, FL, for Defendant/Counter–Plaintiff /Counter–Plaintiffs/Third–Party Plaintiffs.

ORDER GRANTING COUNTER–DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Plaintiff/Counter–Defendant City of Fort Lauderdale's and Counter–Defendant Alfred G. Battle, Jr.'s Motion for Final Summary Judgment [DE 192]. The Court has carefully considered the motion, response, and reply, as well as the parties' factual statements and record submissions, and is otherwise fully advised in the premises.

I. Material Facts

As discussed further herein, this case involves counterclaims and third-party claims brought by five current and former residential-property owners (“Counter–Plaintiffs”) against the City of Fort Lauderdale (“City”) and the Director of the City's Northwest–Progresso–Flagler Heights District Community Redevelopment Agency (together, “Counter–Defendants”).¹ These claims generally allege a coordinated effort by Counter–Defendants to acquire properties in the Northwest part of the City for redevelopment by imposing excessive code-violation fines against black property owners, obtaining liens on their properties based on the unpaidfines, and foreclosing on those liens. Set forth below are the material facts regarding each Counter–Plaintiff.²

A. Hezzekiah Scott

Counter–Plaintiff Hezzekiah Scott previously owned residential property in the City at 2621 NW 18th Court, though he never resided at the property and used it only for rental income. See DE 191 at 5, ¶ 16. On May 8, 2000, Scott was cited by the City for trash and missing ground cover on his property. See id. at 5, ¶ 17.³ After Scott failed to correct these violations, a Notice of Violation was issued on May 25, 2000, requiring Scott to correct the violations within a specified time or appear before the Special Master. ⁴See id. Because the City failed to obtain service on Scott, he was provided with another Notice of Violation, and the Special Master hearing was rescheduled for August 17, 2000. See id. at 5–6, ¶ 17. Scott did not request additional time to comply, and he voluntarily failed to appear for the hearing. See id. at 6, ¶ 17. As a result, an Order was issued requiring the installation of required ground cover throughout the property, to be completed by September 16, 2000, or a daily fine of $25.00 would begin to accrue. See id. Scott did not comply with the Order, nor did he ask for additional time to comply. See id. Because Scott had failed to pay the required fines, an Order Imposing a Fine and Lien and Foreclosure Notice was issued on October 5, 2000. See id. After several re-inspections, Scott's property was brought into compliance on May 10, 2001. See id. On September 23, 2004, the Special Master issued an Order requiring Scott to pay the outstanding fines. See id. To date, however, Scott has not paid the lien resulting from the fines. See id.

Separately, on March 25, 2002, Scott's property was cited for the building having “chipped, peeling and mildew stained paint,” for garbage carts being left out on the curb after service, and for the “chain link fence [having] bent rails and [being] in general disrepair.” DE 191 at 6, ¶ 18. Scott failed to timely correct the violations, and, on May 3, 2002, a Notice of Violation was issued and served on Scott. See id. In that Notice, Scott was ordered to correct the violations or appear for a hearing before the Special Master on June 6, 2002. Id. Again, Scott voluntarily decided not to appear at the hearing. See id. The Special Master issued an Order giving Scott until July 6, 2002, to correct the violations or face a daily combined fine of $125.00. See id. Because Scott neither remedied the violations nor paid the fines, a Claim of Lien was issued and recorded on November 7, 2002. See id. Thereafter, Scott still did not correct all the violations, and a second Order Imposing a Fine and Lien and Foreclosure Notice was issued and recorded on September 23, 2004. See id. at 6–7, ¶ 18. As of this date, Scott has failed to pay the lien. See id. at 7, ¶ 18.

On August 17, 2003, Scott was cited for derelict vehicles being on his property. See DE 191 at 7, ¶ 19. As a repeat offender, he was issued a Notice of Violation on September 29, 2003, requiring him to correct the violation or to attend a Special Master hearing on October 2, 2003. See id. Scott did not remedy the violation and once again chose not to appear for the hearing. See id. On October 3, 2003, another Notice of Violation was issued and served on Scott, requiring him to correct the violation or attend a hearing on October 16, 2003. Scott did not address the violation and elected not to appear at the hearing. See id. Therefore, on October 16, 2003, the Special Master issued an Order requiring Scott to correct the violation by October 30, 2003, or face a daily fine of $250.00. See id. Scott failed to cure the violation, and an Order Imposing a Fine and Lien and Foreclosure Notice was issued and recorded in December 2003. See id. Scott has never paid the lien. See id.

On August 23, 2006, Scott was cited for a derelict, unlicensed, and/or inoperable vehicle on his property. See DE 191 at 7, ¶ 20. After receiving several extensions to address the violation, on October 26, 2006, Scott was served with a Notice of Violation requiring him to “remove, license and/or make operable gold Jaguar with flat tires and expired tag ... on the property” by December 7, 2006, or to appear before the Special Master on that date. Id. Scott failed to correct the violation and elected not to appear at the hearing. See id. at 8, ¶ 20. The Special Master subsequently issued an Order mandating Scott's compliance within ten days, or a daily fine of $100.00 would begin to accrue on December 18, 2006. See id. Scott did not comply with the Order, and, on January 8, 2007, the vehicle was towed by the City. See id. Thereafter, a hearing was scheduled for February 1, 2007, to impose fines against Scott. See id. Again, though, he chose not to appear at the hearing. See id. Fines of $210.00 were imposed by the Special Master, and a lien was recorded on February 19, 2007. See id. This lien, like the others against Scott's property, remains unpaid. See id.

In his deposition in this case, Scott admitted that he received the City's notices of code violations, hearings, and orders concerning his property, but that he did “nothing” timely in response to the notices. DE 191 at 8, ¶ 21.⁵ Scott also conceded that he did not attend any of the hearings regarding his property. See id. at 8, ¶ 22. Referring to the Special Master, Scott testified, “She [is] not a judge, but I never did go to one of those [hearings]. My wife told me to go, go do and I was too stubborn, I didn't go. Like I said, I admit I got those letters, but I was too tired to go.” Id.⁶ Nonetheless, Scott understood that the City could foreclose on his property. Id. at 8, ¶ 23.

Although Scott admitted that he never addressed the code violations in a timely fashion, he claimed that he always took care of them eventually. See id. at 8, ¶ 24. Scott further testified that he did not attend the hearings because he feared that he would be arrested, based on language contained in some of the City's notices. See DE 198–1 at 10; DE 199–1 at 7–8; DE 252–11 at 2. More specifically, Scott thought he might be arrested because he had not corrected the code violations. See DE 252–11 at 2. Scott acknowledged, however, that he was never arrested for any of the violations, even though he personally met with city officials to discuss the citations. See DE 198–1 at 16; DE 199–1 at 8; DE 252–11 at 5, 7.

On April 8, 2008, the City filed a Complaint for Foreclosure against Scott and his Unknown Spouse, in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, arising from the City's liens on Scott's property (“Lien Foreclosure Action”). See DE 275 at 1–2, ¶ 1. Ultimately, though, Scott lost his property not though foreclosure but instead because he chose to stop paying the property taxes. After four years of unpaid taxes, the property was sold to a private party at a Broward County tax-deed sale in July 2011. See DE 191 at 9, ¶ 26; DE 275 at 2, ¶ 3.⁷ In his deposition, Scott testified that “I didn't pay the taxes because it was a lien on the property of $134,000, and I was afraid if I paid the taxes, there is a possibility I would lose the house because I couldn't pay the $134,000.” DE 191 at 9, ¶ 26.

B. Virgil Bolden

Counter–Plaintiff Virgil Bolden has owned many rental properties in the City. See DE 191 at 11, ¶ 40. Two of his former properties, located at 202 NW 14th Avenue and 1401 NW 2d Street, are at issue in this case. See id. at 12, ¶ 41. The buildings located at these addresses were rooming houses, and Bolden would rent the rooms based on verbal agreements. See id. Bolden sold these properties to a private party in April 2002.⁸See id. at 12, ¶ 42.

From 1996 until the date of sale, the property at 1401 NW 2d Street was the subject of thirty-four code-enforcement cases, including the following violations: operation of an illegal rooming house, unsafe structures on the property, trash, debris, derelict vehicles,...