Is $100K for a Dirty Swimming Pool an Excessive Fine?

Most people know that the Eighth Amendment to the United States Constitution forbids cruel and unusual punishments. Less understood is the amendment’s prohibition of “excessive fines.”

Fines are generally understood to be a monetary punishment imposed by the government for a violation of the law. The meaning of “excessive,” on the other hand, is less clear. The Framers of the Bill of Rights did not define the term. Nor did they define most broad terms used in the Bill of Rights (such as “speech” and “due process”), knowing that core principles would need to adapt to changing circumstances as American society evolved.

In 1998, the Supreme Court finally attached meaning to the term “excessive.” The Court held that a fine is excessive when it is disproportionate to the harm caused by, or to the “gravity” of, the offense. How that principle should be applied in individual cases may be far from obvious, however, as different people might disagree about whether a fine is proportionate to the harm it punishes.

In a more recent case, the Court ruled that the civil forfeiture of a Land Rover worth about $40,000 was disproportionate to the offense of using the Land Rover to transport heroin. The maximum fine for the offense was $10,000; a forfeiture well in excess of that amount was disproportionate to the gravity of the offense as measured by the maximum fine.

When a punishment involves a fine rather than a property forfeiture and the fine is within a range allowed by law, courts generally decline to rule that the fine is excessive. A recent Florida case involving overgrown weeds and a dirty swimming pool illustrates the circumstances under which a fine might be excessive even when it does not exceed the maximum fine established for the offense.

Daily Fine Assessed

The City of Dunedin sent Kristi Allen a notice that she owed a $92,600 fine for overgrown weeds and a stagnant swimming pool on her property. Dunedin computed that fine by charging her the maximum of $200 for her violations but treated each day as a new violation that resulted in a new $200 fine.

The notice also advised that interest had been added to the fine, increasing her debt to the city to $103,559. The city threatened to sue her if she did not pay.

Allen thought the letter was a scam and accordingly ignored it. Dunedin then made good on her threat and took her to court.

Like many communities, Dunedin relies on fines as a source of revenue. A cynic might suggest that the city is less interested in punishing violations than in raising money without raising taxes. During the last 5 ½ years, the city has made more than $5 million in its aggressive pursuit of fines.

Offenses that warrant fines in Dunedin include failing to mow grass that is longer than 10 inches and building or remodeling a home with bricks and siding that do not match. Quantifying the harm caused by such trivial offenses is difficult. Perhaps $200 is proportionate, but $200 a day for a continuing violation may add up to an unduly harsh fine.

Proportionality

Tall weeds and stagnant water in a pool provide a breeding ground for mosquitoes. In residential neighborhoods, property owners should consider the impact of property neglect on their neighbors. Cities have a right to enforce reasonable standards of behavior when property owners are thoughtless.

Allen, however, had not occupied the property for years. She was unable to keep up with mortgage payments when the financial crisis hit. She agreed to a foreclosure and moved out. Unknown to Allen and for reasons beyond her control, it took another three years to finalize the foreclosure.

Allen reasonably believed that the house was no longer her responsibility. Dunedin, however, continued to list Allen as the homeowner during the three years after she vacated the premises. It sent her fine notices that were returned as undeliverable. Rather than searching for a better address, Dunedin continued to assess daily fines.

Long after Allen moved out, the attorney working for the city managed to find her current address and sent her a bill for the maximum daily fine. The city ignored Allen’s complaint that she had no notice of the violations and that she had no responsibility for property upkeep after she vacated the premises.

A spokesperson for the city made the blanket statement that homeowners who accumulate daily fines show “disdain, disregard and disrespect for the rule of law and their neighborhoods.” That certainly isn’t true of Allen. Residents might view Dunedin as showing disdain, disregard and disrespect for the rule of law by assessing daily fines without giving property owners actual notice of violations.

Are Daily Fines Excessive?

A Tampa Bay area television reporter found that many other Florida communities have imposed daily fines totaling hundreds of thousands of dollars for relatively minor violations, such as failing to trim a tree or allowing too much junk to accumulate. Do homeowners have a remedy when they are billed for an exorbitant fine?

A lawyer may be able to help. Failing to give notice of a continuing violation may violate due process. Municipalities do not always follow the law when they attempt to give notice.

In many cases, inspectors cannot prove that a violation existed every day. The fact that an inspector saw junk in the yard one day and saw junk in the yard a month later does not necessarily mean that the junk was present on every day during the month. A lawyer may be able to poke holes in the city’s proof.

Finally, even if a continuing violation can be proved and notice was properly given, a daily fine might violate the excessive fines clause if it is disproportionate the harm caused by the violation. Dunedin fined one man $500 a day for failing to mow his lawn while he was in South Carolina handling his deceased mother’s estate. He came home to find a bill for $24,000 and a threat to foreclose on his property if he doesn’t pay.

Does the social harm caused by long grass warrant a daily fine of $500? Many judges might think that $500 for each month that a lawn is untended would be a more reasonable fine than $500 a day.

How courts will respond to the argument that small daily fines add up to excessive cumulative fines is not yet clear. It is clear that homeowners who are facing ruinous fines for relatively trivial violations should ask a lawyer for help.

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