USCA11 Case: 21-11773 Date Filed: 07/14/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11773
____________________
JAMES FICKEN,
Trustee, Suncoast First Trust,
SUNCOAST FIRST TRUST,
Plaintiffs-Appellants,
versus
CITY OF DUNEDIN, FLORIDA,
DUNEDIN CODE ENFORCEMENT BOARD,
MICHAEL BOWMAN,
in his official capacity as Code Enforcement Board Chairman,
LOWELL SUPLICKI,
in his official capacity as Code Enforcement Board Vice-Chair,
ARLENE GRAHAM,
in her official capacity as a member of the Code Enforcement
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2 Opinion of the Court 21-11773
Board, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-01210-CEH-SPF
____________________
Before WILLIAM PRYOR, Chief Judge, LUCK, and ED CARNES, Circuit
Judges.
PER CURIAM:
This appeal concerns whether James Ficken’s complaint
about the process afforded to him by the City of Dunedin when it
fined him $500 a day for failing to mow his lawn fails as a matter of
law and whether that fine was unconstitutionally excessive.
Ficken’s claims fail because state law provided him adequate pro-
cess and the fine was not unconstitutionally excessive where state
law permitted a fine of up to $500 a day for municipal-ordinance
violations. We affirm the summary judgment in favor of the City.
I. BACKGROUND
James Ficken repeatedly failed to mow the lawn of his house
in Dunedin, Florida. From 2007 to 2013, he received about a dozen
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21-11773 Opinion of the Court 3
notices from the City about overgrown grass, but he always
mowed it before the compliance deadline. Then he received the
two notices that led to this case. The first of those was in 2015. A
municipal code enforcement inspector observed the grass and is-
sued a notice to Ficken that he violated an ordinance prohibiting
grass exceeding ten inches in height. The notice gave Ficken time
to remedy the violation but warned him that if he did not cut his
grass by the compliance deadline, he would have a hearing before
the Code Enforcement Board.
Ficken did not cut his grass in time, and the inspector sent
him notice of the hearing. Ficken tried to excuse his failure to cut
his grass earlier and requested an extension of the compliance date,
but the inspector rejected his entreaties. The inspector twice in-
formed Ficken that if the Board found a violation of the ordinance,
he could receive fines of up to $500-per-day for future, “repeat” vi-
olations.
The Board held a hearing and found Ficken’s property in vi-
olation of the ordinance during the specified time, though it was in
compliance at the time of the hearing. Ficken did not attend the
hearing. After the hearing, the Board issued a written order finding
a violation but did not impose a fine. The order “deem[ed]” the
violation “to be of a recurring nature” so that future violations
could be subject to a $500-per-day fine.
The order was sent to Ficken by return receipt mail and was
posted at the property and at the municipal offices. Ficken later de-
scribed in a declaration that his “understanding was that, as a
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‘repeat violator,’ the City could technically fine [him] up to $500
per day for another violation.” Ficken did not appeal to state court
or request rehearing, despite being afforded those opportunities by
state law. See FLA. STAT. § 162.11.
On July 5, 2018, another inspector observed grass exceeding
ten inches in length on Ficken’s property. The inspector informed
Ficken of the violation on August 20, Ficken mowed his lawn on
August 21, and he received an official notice of the “repeat” viola-
tion on August 22. The notice of repeat violation included notice
of a Board hearing.
The Board held a hearing, and Ficken again did not attend.
After considering the evidence, the Board approved two motions.
First, the Board imposed a $500-per-day fine for repeat violations
between July 5 and August 20. Second, in the light of evidence that
the grass at the property exceeded ten inches beginning on August
31, the Board imposed a $500-per-day fine until Ficken cut his grass.
The Board issued written orders for both fines, and the property
was inspected and deemed to be in compliance as of September 10.
The fines totaled $28,500 plus interest.
Ficken requested a rehearing, and the Board denied his re-
quest. Ficken did not appeal any order to state court. See id.
§ 162.11.
Ficken failed to pay the fine, and the Board later began fore-
closure proceedings on his property. See id. § 162.09 Ficken filed a
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21-11773 Opinion of the Court 5
four-count complaint in a Florida state court on the same day. The
City later removed the action to federal district court.
Two federal claims are relevant here. See
42 U.S.C. § 1983.
First, Ficken alleged that a $500-per-day fine, the aggregate fine,
and the ultimate penalty of foreclosure for overgrown grass are fa-
cially unconstitutionally excessive and excessive as-applied to him
under the Eighth Amendment. Second, Ficken alleged that he was
deprived of due process because the “City[] fail[ed] to inform [him]
of the consequences of his ‘repeat violator’ classification and pro-
vide him with an opportunity to contest [that] classification before
it was applied to him” and because the City “impos[ed] . . . fines
against [him] without providing [him] notice that fines were being
imposed on an ongoing basis.” The other claims alleged violations
of the provisions of the Florida Constitution concerning excessive
fines and due process.
After considering cross-motions for summary judgment, the
district court entered a summary judgment in favor of the City.
The district court explained that the federal due-process claim
failed because, “even if a deprivation of due process occurred,”
Florida law “provided Ficken with the opportunity to appeal the
Board’s orders to” state court, where he could raise the issues that
he now raises. The district court explained that Ficken’s Eighth
Amendment claim failed because the penalty was authorized by a
Florida statute, Ficken was within the class of persons at whom the
statute was directed, and repeatedly violating the overgrowth or-
dinance grass was harmful. There was testimony that grass
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6 Opinion of the Court 21-11773
overgrowth causes harm because it “draw[s] snakes, rats, and other
vermin,” and it could impact property values and make property
appear abandoned. The district court also explained that Ficken’s
claims under the Florida Constitution failed.
II. STANDARD OF REVIEW
We review a summary judgment and issues of constitutional
law de novo. Burns v. Town of Palm Beach,
999 F.3d 1317, 1330
(11th Cir. 2021).
III. DISCUSSION
We divide our discussion in three parts. First, we explain
that Ficken’s federal due-process claim fails because adequate state
process was available to him. Second, we explain that the fine was
not excessive under the Eighth Amendment. Third, we explain that
Ficken forfeited his claims under the Florida Constitution.
A. Ficken’s Federal Procedural-Due-Process Claim Fails.
“It is well-settled that a constitutional violation is actionable
under [section] 1983 ‘only when the state refuses to provide a pro-
cess sufficient to remedy the procedural deprivation.’” Reams v. Ir-
vin,
561 F.3d 1258, 1266 (11th Cir. 2009) (quoting McKinney v.
Pate,
20 F.3d 1550, 1557 (11th Cir. 1994) (en banc)). This rule “rec-
ognizes that the state must have the opportunity to remedy the
procedural failings of its subdivisions and agencies in . . . appropri-
ate fora[,] . . . [like] state courts.” Cotton v. Jackson,
216 F.3d 1328,
1331 (11th Cir. 2000) (internal quotation marks omitted).
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21-11773 Opinion of the Court 7
A plaintiff cannot rely on the fact that he “failed to take ad-
vantage” of adequate state remedies “to claim that the state de-
prived him of procedural due process.” Id.; accord McKinney, 20
F.3d at 1565. And we have explained that there is no procedural-
due-process violation when state courts would “generally . . . pro-
vide an adequate remedy for the procedural deprivation the federal
court plaintiff claims to have suffered.” Horton v. Bd. of Cnty.
Comm’rs,
202 F.3d 1297, 1300 (11th Cir. 2000); see also Reams,
561
F.3d at 1267; Cotton, 216 F.3d at 1331. “The question is thus
whether [Florida] provided [Ficken] with the means to present
[his]” alleged procedural deprivations “and receive redress from
th[ose] deprivation[s].” Reams,
561 F.3d at 1266.
Florida law provided Ficken with adequate means to present
his alleged due-process violations and “receive redress from th[ose]
[procedural] deprivation[s].” See
id. Section 162.11 provides that
any aggrieved party “may appeal a final administrative order of an
enforcement board to the circuit court.” FLA. STAT. § 162.11. Flor-
ida courts have explained that, under section 162.11, a circuit court
may “correct[]” “all errors below,” including “jurisdictional, proce-
dural, and substantive” errors. Cent. Fla. Invs., Inc. v. Orange
Cnty.,
295 So. 3d 292, 295 (Fla. 5th Dist. Ct. App. 2019) (internal
quotation marks omitted); see also Kirby v. City of Archer,
790 So.
2d 1214, 1215 (Fla. 1st Dist. Ct. App. 2001) (explaining that consti-
tutional claims are reviewable on appeal to state court under sec-
tion 162.11); Holiday Isle Resort & Marina Assocs. v. Monroe
Cnty.,
582 So. 2d 721, 721–22 (Fla. 3d Dist. Ct. App. 1991); Ciolli v.
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Palm Bay,
59 So. 3d 295, 298 n.5 (Fla. 5th Dist. Ct. App. 2011) (ex-
plaining that “[i]t is necessary to fill the procedural gaps in [Chapter
162] by the common-sense application of basic principles of due
process” (internal quotation marks omitted)).
Ficken’s argument that review by a state court would have
been inadequate because it would have been confined to the record
before the Board does not cut it. Although Florida law confines re-
view to the record before the Board, see FLA. STAT. § 162.11, Ficken
could have developed the record by appearing at his hearings. He
also could have raised the issue of whether the notice he received
was insufficient. See Cent. Fla. Invs., 295 So. 3d at 295 (explaining
that “section 162.11 provides for an actual appeal” through which
“all errors below may be corrected: jurisdictional, procedural, and
substantive” (internal quotation marks omitted)). Ficken’s argu-
ment that the record did not contain the facts that he wanted at-
tempts to transform his failure “to take advantage” of adequate
state procedures to support his claim, which our precedent fore-
closes. See Cotton, 216 F.3d at 1331.
B. The Fine Was Not Excessive.
Assuming, as the parties do, that the Eighth Amendment
governs this fine, we apply a well-established framework to deter-
mine whether it is unconstitutionally excessive. That framework
generally applies in the forfeiture context. See United States v. Ba-
jakajian,
524 U.S. 321, 334 (1998) (“We now hold that a punitive
forfeiture violates the Excessive Fines Clause if it is grossly dispro-
portional to the gravity of a defendant’s offense.”). A fine may be
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excessive under the Eighth Amendment if it is “grossly dispropor-
tional.” See United States v. Sperrazza,
804 F.3d 1113, 1127 (11th
Cir. 2015) (internal quotation marks omitted). To determine
whether a fine is “grossly disproportional,” we consider “(1)
whether the defendant falls into the class of persons at whom the
criminal statute was principally directed; (2) other penalties author-
ized by the legislature . . . ; and (3) the harm caused by the defend-
ant.”
Id. (internal quotation marks omitted). Because Ficken has as-
serted that his fine is grossly disproportional to the offense of re-
peatedly violating the overgrowth ordinance, we will apply the
Sperrazza framework even though there is no criminal defendant
and no criminal statute involved here. The second factor is the
most important. A fine that falls within the range authorized by the
legislature enjoys a “strong presumption of constitutionality.”
United States v. Chaplin’s, Inc.,
646 F.3d 846, 852 (11th Cir. 2011)
(internal quotation marks omitted).
Ficken cannot overcome the strong presumption of consti-
tutionality of his fine. Florida law permits a $500-per-day fine for
repeat violations of municipal ordinances, see FLA. STAT.
§ 162.09(2)(a), so Ficken’s fine is “almost certainly . . . not exces-
sive.” Sperrazza, 804 F.3d at 1127 (internal quotation marks omit-
ted). He is also within the class of persons regulated by the statute
because he is a repeat violator of the ordinance prohibiting grass
exceeding ten inches. Testimony established that overgrown grass
may “draw snakes, rats, and other vermin,” and may affect prop-
erty values and make property appear abandoned. And even if
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10 Opinion of the Court 21-11773
under the final factor repeatedly having overgrown grass is not par-
ticularly harmful, the fine is not excessive in the light of the other
two factors.
C. Ficken Forfeited his State Claims.
Ficken forfeited his due-process and excessive-fines claims
under the Florida Constitution. Ficken’s initial brief contains no ar-
gument addressing either claim under state law. It mentions them
only in passing references, noting that the district court applied the
same analysis to his state and federal claims. We have explained
many times that “passing references” to claims “buried within” the
“main arguments” in a brief are not enough to properly present
issues on appeal. Sapuppo v. Allstate Fla. Ins. Co.,
739 F.3d 678, 682
(11th Cir. 2014) (internal quotation marks omitted).
IV. CONCLUSION
We AFFIRM the summary judgment in favor of the City.
