Lozman v. City of Riviera Beach

• Decision Date: 19 August 2014
• Docket Number: Case No. 08–CIV–80134.
• Citation: 39 F.Supp.3d 1392
• Court: U.S. District Court — Southern District of Florida
• Parties: Fane LOZMAN, Plaintiff, v. CITY OF RIVIERA BEACH, Defendant.

39 F.Supp.3d 1392

Fane LOZMAN, Plaintiff

v.CITY OF RIVIERA BEACH, Defendant.

Case No. 08–CIV–80134.

United States District Court, S.D. Florida.

Signed Aug. 19, 2014.

Order Granting Reconsideration in Part Oct. 29, 2014.

Fane Lozman, Riviera Beach, FL, pro se.

Benjamin Lawrence Bedard, Bradley John Ellis, Roberts Reynolds Bedard & Tuzzio, West Palm Beach, FL, for Defendant.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT & DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

DANIEL T.K. HURLEY, District Judge.

Plaintiff Fane Lozman (“Lozman”) filed a Second Amended Complaint against the City of Riviera Beach (“the City”) pursuant to 42 U.S.C. § 1983, alleging that the City, through the actions of its city council members, retaliated against him for criticizing a municipal redevelopment project and opposing what he perceived as improper conduct of various council members, in violation of his First, Fourth and Fourteenth Amendment rights under the United States Constitution. He also asserts supplemental state law claims against the City for false arrest, battery and conversion.

The case is now before the court on the parties' cross-motions for summary judgment [DE Nos. 383, 408]. For reasons discussed below, the court will grant in part and deny in part the City's motion for summary judgment, and will deny Mr. Lozman's motion for partial summary judgment.

I. Factual Background¹

In March, 2006, Mr. Lozman moved to Riviera Beach and leased a slip at the city's marina for his “floating home,” a two-level, house-like plywood structure with empty bilge space underneath the main floor to keep it afloat. Shortly after taking up residence, Mr. Lozman learned of the City's interest in a $2.4 billion redevelopment project for the marina, a plan contemplating the seizure of thousands of homes through the power of eminent domain and the transfer of property to a private developer.

Lozman was publicly critical of the City's redevelopment plan, as well as the corruption that he perceived was prevalent throughout the City's government, and routinely voiced those criticisms at public meetings of the Riviera Beach City Council and the Riviera Beach Community Redevelopment Agency (CRA) between the years 2006–2013.

On May 10, 2006, Riviera Beach police officers, acting at the direction of the City Council Chairperson, forcibly removed Lozman from a regularly scheduled meeting of the city council. Later that evening, the city council denied him access to a “special meeting” of the council. A few weeks later, on June 7, 2006, Lozman filed suit in state court against the City and various city council members alleging a violation of Florida's Government–in–the–Sunshine Act based on its closure of this meeting.

On June 28, 2006, the city council held a scheduled closed-door executive session. A transcript of that proceeding, which has since been made a public record, reveals at least two members of the city council discussing the need to find out who was behind Lozman's Sunshine Act suit, and “to use every reasonable tool that we have to find out who they are, what we are up against, so that we can map our strategy out.” [DE 383–10, p. 36]. Responding to these comments, council member Elizabeth Wade said:

I think it would help to intimidate the same way as FDLE is coming to my house. I am wondering if my lines are tapped or whatever. I think they should be questioned by some of our people on a legitimate pay scale basis so that they can feel the same kind of unwarranted heat that we are feeling, and I am going to caution that the city has been there before ... It is the climate.... We can go in there and be as right as right can be, but if that Judge is already preconcluded [sic], you got the governor's hand in this, or supposedly in this, because all we have got is hearsay that his hand is in it. You understand what I am saying? You got FDLE knocking at my door.

[DE 383–10, pp. 37–38]. The Council Chairperson, Ann Isles, later wrapped up the discussion with the comment, “I would like to offer up a consensus that we spend whatever. If you need a private investigator, whatever you need. If you need somebody to shadow every name that's on this document, I ask for a consensus that we spend those dollars and get it done, so we send one message. This is our house, and we are going to stay, and there ain't none of them going to run us away.” [DE 383–10, p. 43]. When Ms. Iles then asked “Do we have a consensus of what Ms. Wade is saying,” council member James Jackson responded, “I think what Ms. Wade says is right. We have to beat this thing, and whatever it takes, I think we should do it.” City Attorney Pamela Ryan responded “Okay,” as did council member Norma Duncombe. [DE 383–10, pp. 44].

As expressed at the outset of this closed door executive discussion, multiple council members shared a concern about who was funding Lozman's Sunshine Act suit, and whether there was connection between Lozman and the offices of then Governor Bush and Attorney General Crist, governmental bodies which had also been critical of the city's redevelopment project and which the council suspected may have cooperated with Lozman in his pursuit of the Sunshine Act lawsuit.

Although there is no record evidence that the City actually hired a private investigator to investigate or follow Lozman, the record does show that shortly after the conclusion of this closed-door meeting, Lozman became the target of a string of legal pressures applied by the city council or its police department, summarized here as follows:

(a) On September 11, 2006, the City filed an eviction action in state court seeking to evict Lozman's floating home from the marina. Lozman successfully asserted a First Amendment retaliation defense to the eviction action, and the City lost its bid to evict the structure from its marina.

(b) On November 15, 2006, then Riviera Beach City Council Chairperson Elizabeth Wade directed city police officers to forcibly remove Lozman from the podium during the public comment, “non-agenda” section of a city council meeting, within less than a minute after Lozman began speaking about the U.S. Attorney's Office current efforts to crack down on public corruption in Palm Beach County and the recent arrest of Palm Beach County Commissioner Tony Massilloti. Responding to the Chairperson's direction, Officer Francisco Aguirre handcuffed Lozman during the middle of his speech, escorted him from the meeting and transported him to the City of Riviera Beach police headquarters, where Lozman was charged with disorderly conduct and trespass after warning. Sometime later, the charging document was altered, with a “white-out” of the trespass charge, and replacement with the words “resisting w/out violence, to wit obstruction.” Ultimately, on January 17, 2007, the Palm Beach County State Attorney's office nolle prossed both charges.

(c) Over the course of the next several years, City of Riviera Beach police officers stopped Lozman on at least 15 different occasions, threatening to arrest him for walking his 10–pound dachshund on marina property.

(d) Over the course of the next several years, Lozman was repeatedly escorted from city council or CRA meetings, the City Hall building or the City Council Chambers by Riviera Beach police officers acting at various times under the direction of city council members Liz Wade, Ann Isles, Cedrick Thomas, Dawn Pardo and Gloria Shuttlesworth. On those occasions when he was not physically removed, council members “censured” or silenced Lozman by interrupting his remarks or threatening police intervention.

(e) On July 9, 2008, Lozman's former attorney, Robert Bowling, sent a formal written “notice of claim” to the City, pursuant to § 768.28(6), Fla. Stat., asserting First Amendment, Fourth Amendment and Fourteenth Amendment violations, as well as a state law claim of false arrest, based on Lozman's November 15, 2006 arrest, and the City's forcible removal of Lozman from the May 2006 regular meeting of the city council, as well as various other unspecified retaliatory acts of censure and antagonism.

(f) On April 1, 2009, the City cut off Lozman's electricity at the marina for a period of nearly three weeks, finally restoring it on April 20th, three days after being ordered to do so by a state court judge.

(g) On April 20, 2009, the City initiated an in rem federal admiralty action against Lozman's floating residence in the United States District Court for the Southern District of Florida. The City requested and obtained an ex parte arrest warrant authorizing the seizure of Lozman's floating home, without disclosing that Lozman had prevailed in a prior state eviction proceeding initiated by the City, and that just three days earlier a state court judge issued an order directing the City to restore electricity to the floating home.

When Lozman and a local television cameraman witnessed the arrest of the structure and attempted to film the procedure, from the vantage point of a nearby public parking lot, a Riviera Beach Police Commander approached them and, in a loud voice, threatened to arrest them both if they did not stop the filming.

(h) On October 21, 2009, then City Council Chairperson Dawn Pardo directed two police officers to remove Lozman from a City Council meeting for failing to yield the podium. Lozman claims that the officers threw him to the floor in the process of forcibly removing him from the meeting, while Pardo, City Attorney Pamela Ryan and other members of the city council laughed and mocked him in his stricken state.

(i) On November 18, 2009, the United States District Court, exercising its admiralty jurisdiction, entered partial summary judgment in favor of the City, and on January 6, 2010, entered final judgment against the in rem defendant, i.e., the floating home, which the court ruled was a “vessel,” in the amount of $3,039.88, plus custodial fees, and further ordered that the “vessel” be sold at a U.S. Marshal...