Petition for Writ of Certiorari — Macon v. City of Orlando

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(\ Bupreme Court, U.S.

FILED

92-1662 APR 16 1993

a Ch Ue bw CLEAR |

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

JAMES MACON, THE FLORIDA SUN,

GLADYS MACON

Petitioners,

City OF ORLANDO,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAM JOHN McLEop*

McLeEop, McLeop,

& McLeop, P.A.

P.O. 950, 48 E. Main St.

Apopka, FL 34703

(407) 886-3300

Attorney(s) for Petitioners

*Counsel of Record

QUESTIONS PRESENTED

(1) Did the Eleventh Circuit correctly uphold

6 judgment of o tris) judge who found no

constitutional error in Orlando, Floride’s use of

werrentless searches to photograph and seize,

among other things, “household furnishings,"and a}]

other objectionable, unsightly or unsanitary

matter,” from residential Curtilege, ot times

solely to protect the economic welfere of real

property of some owners in @ black neighborhood,

as determined by © single inspector issuing

citations for violations on adjecent land?

(2) To assure due process of lew in the fed-

6rel courts, is review ge novo required on oppea)

from lower court rulings upholding the validity of

6 local ordinence challenged on its face and as

opplied, especiolly for its inhibitory effect on

constitutional rights exercised by blacks?

PARTIES

All parties ta the proceedings are set forth

in the caption. Bill Frederick, former mayor of

Crianda, Florida, and Mable Butler, former city

camrmissianer af QOrlanda, Flarids, were sued in

their official capacities anly. Na reference was

made ta their successars, because they had

particularized roles and individual intentions

relevant ta the actions below, while they were in

affice. The only respondent therefore subject to

this legal action at this time is the City of

Orlando, Florids. However, the actions and inten-

tions of the former mayor and former city camrmi-

ssianer continue to be germane ta those of the

muncipality in these proceedings.

TABLE OF CONTENTS

Page

Guestions Presented... j

eas a ae i]

Table of Cantents.... 11

Table of Authorities... v1

Citations ta Opinions Below............ 2

Ce th ) 1S eh S

Aoplicable Canstitutiansl & Stat-

utory Provisions and Local Anpell-

Nee cinsnnsonsdenens 4

Challenged Muncipal Ordinance

Neen TT ec cccasnianis | ?

Statement of the Case............... ?

Lincanstitutionality of the

Lot Cleaning Cade... 13

Testimany of the LCC Insp-

6: , 14

Statement of the Case (cant.)

The Werrantless Invesian

at the Homestead... 16

The Waerrantless Invasion

at the Rental Site... 19

Reasons for Granting the writ = *

|. This Court to date has never allowed

the kind of described incursions anto

private real property by persons acting

under color of law to enforce 4 duty to

protect the land of others when there

SS TUG CIT ooo sees cree ed

ll. Due process of law requires appell-

ate review de novo of substantial

constitutional challenges to 6 local

law on its fact, and as applied, ta

chill petitioners’ lawful conduct........ 3]

LOC STOR i ee ee 4?

APPENDIX Contents

Grant of Stay by the Court of Appeals

PU eh ka F tice ceo eae 16

Denial af Rehearing by Court of Appeals

oe © es ai ene 3a

Local Rule 36.1 Affirmance by that Court

NE RAE FW tens ceneencscinneriensices 36

Denial af Sanctions By the District Court

op RS oh eee 64

Costrict Court Judament in this Case

NS. TH rattaccecc sats 70

District Court Memorandum in this Case

A BPI aooecstcepacerstnamcnnenteainsses Ga

TABLE OF AUTHORITIES

Cases Page

Alice Chalmers Credit Corp. v. Tri-State

Equipment Companies,

792 F.2d 967 (10th Cir, 1988). 43

Branzburg v. Hayes,

Re Ae. Eee sesssstcsentancelcdas 33

Broadrick v. Oklahoma,

413 US. 601 (1973)................. Ree wo oo

BIG US. ZOT (1 SGG)........ccceccccceseesserecesene 29

California v. Greenwood,

A IN FI Pcs scinsnscancnsosscansesncssevacnsratones 29

City of Cincinnati v. Discovery Network,

61 US.L.W. 4272 (March 23, 1993)... be ate FJ

Hoffman Estates v. Flipside,

Hoffrnan Estates, Inc.,

MSS WES. QBS CIGGZD..0n.ccceccneecsecsccccscccccascca... 33

Jones ¥. Alfred H. Mayer Co.,

292 US. 409 (1966) 22

Lakewood v. Plain Dealer Publishing Co.,

AES. Fa i Sscnsnsirntoteieetic 37

Merbers of the City Council of Los

Angeles ¥. Taxpayers for Vincent,

tw EL ga | Rene eee 36

Memphis ¥. Greene,

451 US. 100 (1961) oe

Metramedia, Inc. ¥. San Diega,

452 U.S. 490 (1961) ~ wo

Papachristou v. City of Jacksonville,

OS OG. THRE Bianca 40

Pearson v. Edger, #91-1855 (S.Ct. 1992),

vac. and rem. Apr. 6, 1993... 34.35 41

Riley v. Florida,

OT OS. Re aces, es. 29

Sheare Tefila Congregation v. Cobb,

OY UE OTT CIE ivaninsinivsessersssirnsersisccrinsian 32

Soldal v. Cook County, IHl.,

GPG Re Ee, +) een ct

Cases

State v. Morsmen,

394 So.2d 406 (Fla. 1960).

State v. Rickard,

420 So. 20 303 (Fie. 1962).......................

United States v. Clark,

912 F.2d 1067 (9th Cir. 1990).

United States ¥. Hatch,

931 F.2d 1476 (11th Cir. 1990)...

weeterr Nuciear Inc. vo Huffman

fl". ; - 4 am” c ,. ‘ - ~ AF ont tor

S25 F.2d 3450 (10th Cir. 1967)

Other Authorities:

The First Amendment,

Linited States Constitutian..........

The Fourth Amendment, 4 16,

United States Constitution...

The Fifth Amendment,

United States Constitutian........

The Fourteenth Amendment,

United States Constitution...

11)

Vax)

Other Authorities age

ee ee Ce Poco 3

Wee AR, 9 ei baceecerneere 5

a ee Oe eh. Passirn

ith Cir. Ct. Rule SO. to §=8,31,44

46,47

Rule 11, Federal Rules

of Civil Procedure... 27,4

Orlanda Lat Cleaning Code 7,9,11-1¢

Allen, K.L. and Droze, W.M., “Appell-

ste Practice and Procedure,” 42 Mer-

cer L. Rev. 1255 (Summer, 1991)... 42

Killien, M., “Tjoflat: Courts overloaded...”

The Florida Bar News, July 15, 1992 42

Rabel, L. K., “Caseload and Judging: Jud-

icial Adaptations to Caseload,” 1990

Brigham Young U. L. Rev. 5... ences as

Songer, Smith & Sheehan, “Nonpublicatian

in the Eleventh Circuit: An Empirical Aan-

slusis,” 16 Fle. St. UL. Rev. 963 (1989). 44.45

IN THE

SUPREME COURT OF THE UNITED STATES

UCTOBER TERM, 1992

JAMES MACON, THE FLORIDA SUN,

GLADYS MACON

Fores sanor

Ory

ae oe ee Oe Pe od

cal

CITY OF ORLANDO,

PETITION FOR A WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

publishes, and his spouse Gladys Macon, with whom

he has lived in Orlando, Fla.. for more than 25

ee a

= is

years, proy thet 6 writ of certiarari issue ta

review the judgment af the United States Court of

Appeals entered an Dec. 11, 1992.

CITATIONS TO OPINIONS BELOW

Neither 6 stay of mandate nar the judgment

itself of the United States Court of Appesls for

the Eleventh Circuit--a denis] of petitioners’ ma-

tian for rehearing and suggestion for rehearing en

banc--is reported. Theu ere reprinted in the ep-

rend's at pp la-2sa, end po Sa-da respectively

aisco nat renarted ta date i the per curiam

affirmance without opinion that either the

judgment af the district court was based an

findings af fact tnat are not clearly erraneous or

that it was entered without on error of law. It is

reprinted at p. Sa. The triel caurt’s denial af Rule

11 sanctions, judgment, and opinion memorandum

of law alsa are not reported. They are reprinted at

pho 6a,p. 78, and starting at p. Ga respectively

JURISDICTION

The judgment of the court of appeals

affirming without opinion the district court's

judgment and findings for defendants on al) caunts

was entered on July 10, 1992. A timely suggestion

for rehearing end rehearing en banc was denied on

Dec. 11,1992. On March 3, 1993, on appeals court

judge entered 4 stay of the mandate of that court,

effectively ta cantinue until final disposition of

the case. On March €@, 1993, Justice Anthany M

Kennedy entered an order extending the time for

filing o petition for writ of certiorari to and

including April 16, 1993. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254 (1).

-4-

APPLICABLE CONSTITUTIONAL AND STATUTORY

PROVISIONS AND LOCAL APPELLATE COURT RULE

The First Amendment toa the United States

Constitution provides in pertinent part:

Congress shell make no law...abridging the

freedam af speech, ar af the press; or the

right of the people..ta petition the Gavern-

ment for aredress of grievances.

The Fourth Amendment to the United States

Constitution provides in pertinent part:

The right af the peonie ta be secure in their

fersons, houses, papers and effects, against

unreasonable searches ond seizures, sho)!

not be violated...

The Fifth Amendment ta the United States

Constitution provides in pertinent part that no

person shall “be deprived of life, liberty, ar

property, without due process of law”

The Fourteenth Amendment tc the United

States Canstitution, Section 1, provides in

nertinent part that:

Na State shall make or enforce any law

which shell abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process af Jew; nor deny to any person

within its jurisdiction the equal protection

of the laws.

Section 1982, in Yolurne 42 of the United

States Cade, of the Civil Rights Act of 1671, pro-

vides in pertinent part:

All citizens of the United States shall have

the same right, in every State and Territory,

as is enjoyed by white citizens thereof

ta..hold..real and personel property.

Section 1963, in Yolume 42 of the United

States Cade, of the Civil Rights Act of 1671, pro-

vides in pertinent part:

-6o-

Every person, who, under calor of any...ardi-

nance..of any State..subjects, or causes to

he subjected, any citizen of the United

States oar ather person within the

jurisdiction thereof toa the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws, shall

be lable ta the party injured in an action at

law, suit in equity, ar other proper

proceeding for redress...

Rule 36.1 for the U.S. Court of Appeals for the

Eleventh Circuit provides in pertinent part:

Affirmarcs Lttthant ronan When the Court

determines thet any of the following circum-

stances exist: (a) judgment of the district caurt is

based an findings of fact that are not clearly

erraneaus;..(e) judgment has been entered without

on errar af law: and an apinian would have no pre-

cedential volue, the judgment or arder ray be

enforced without apinian

BEST AVAIL

-7-

CHALLENGED MUNICIPAL ORDINANCE PROVISIONS

The provisions of the Qrlanda Lot Cleaning

Code challenged as uncanstitutionally overbroad

and/or vaque on their face and/or as applied ta pe-

titioners James Macon, the Florida Sun weekly

targeted to 6 local Orlando African-American sud-

jence, and his spouse, are set forth in full in the

district court opinion in the appendix.

STATEMENT OF THE CASE

For himself end the weekly he hed prepared

end published since 1975, petitioner James Macon

filed a civil rights action against the City of

Grianda and its mayor on April 13, 1969. Macon

sought ta enjoin warrantless searches on real pro-

perty he owned, including his harnestead frarn

which he prepared the Florida Sun for publication

and for circuletian of several thousand copies.

-6-

Far years, the City of Orlande- had taken ac-

tions, which Macon testified without contradiction

had interfered with his publication of the weekly!

For instance, in 1986, the City had cited and tawed

a trailer containing equipment used to publish the

newspaper, which was an the Macan homestead.

During that time, in the Florids Sun, Macon

had published articles concerning racism in, ond

litigation taking place against, the City. He élso

reported anc wrote apcut 6 zoning dspute

involving hirn and Mable Butler.

1--The facts sre taken from the district court

memorandum included herein in the appendix,

except for those derived fram the transcript of

evidence admitted at the twa-dev trial, on March

19-20, 1991, which do not contradict the judge's

findings, although they moéy not support the

canclusions he meade fram them.

- g -

At the time, Mable Butler was cammissianer

serving ane af the City’s six councilmanic dis-

tricts, ane of the two with predaminently black

populations forming Orlando's Southwest quarter,

where the Sun has been circulated. Before the

described controversies, in the early G0's, she and

the City had advertised in the weekly.

The only black City lot/housing inspector,

during the period after infarmetion critical of

Crlando was published in the Sun, was assigned

exclusively to cover Lat Cleaning Cade (LCC") vio-

lations in those two Southwest districts. Thirty

percent af Orlando's population is black and mast

reside in those sections policed by Inspector

Larraine Danzy-Hamilton (“Inspector Hamiltan’).

In 1966-90, Inspector Harnilton an several

accasians cited the Macon homestead and real

property he rented elsewhere in the neighborhoad

for alleged LCC violations. On Feb. 17, 1969, to

determine whether LCC violations might exist in

the back yard of the property tenanted by Oscar

Beachurn and his farnily, Inspector Hamilton

proceeded to an area of curtilage nat expased to

public view, and tack photographs. She had reason

to beleve there might be viclations, because af

complaints fram @ neighbor, Verna Manin.

Mrs. Manns owned home and property

atbutted the tenanted place. Based an what she

could detect from the neighbor's place, Mrs. Mann

earlier camplemed to Cormmissioner Butler.

Inspector Hamilton testified complaints passed an

from city hall were given priarity.

At trial, 6 white city commissioner, Jeff

Clark, testified that neither he nar his canstitu-

ents in his predominantly white district had

sought enforcement of the cade against owners af

surrounding property. Bill Frederick, Orlando's

mayor at the time, testified 4 survey revealed

greater dernand in Orlando in black neighborhoods

for enforcement af housing and lat violations then

sets

there had been elsewhere in the community. Frede-

rick used 6 column he occasionally wrote for the

Crianda Times weekly, rival ta the Sun far local

black sudiences, to urge those readers to keep the

municipality informed about “eyesores.”

Fiy June, 1966, the tenanted Macon property

hed been cited once before within the previcus 12

months for alleged LCC violations in public view.

So Macon got 6 notice of a mandatary $100 fine.

Neither the notice nor the lew ot the time

rade any provision for sn appeal as of right fram

the mandatory fine. During the course of the liti-

gation, the City did alter the LCC to permit a five

-day grace period after citation for corrective ac-

tian, presumably including the taking of on appeal.

Fiut in June, 1966, Macon was given no reason to

believe he could challenge the automatic fine.

In 1989, Macan learned that whites wha

appeared before the City Council were being given

monetary reductions when they tock issue with

mandatory lot cleaning fines an their property.

Gn Feb. 22, 1969, Macon received an invoice

ta inform him that the mendatory $100

Sdministrative penalty or fine imposed because

the rental property had been cited twice within 12

months had to be paid by March 21, 1989.

Two days earlier, the City sent its final no-

tice of alleged LCC violations cited by Inspector

Hariilton on Feb. 10, 1989, at the Mscon hoarne-

stead. They were similer to thase allegeo at hs

rental property.

Macon asked to be heard by the City Council

and 4 hearing was to be held an March 27, 1969. On

Good Friday, March 24, 1969, while Macan was at

his homestead preparing the fallawing week's Sun,

private contractors appeared there ta clear the

curtilage an all portions of the yard areas sur-

rounding the house, regardless of public visibility

When Inspector Hamilten arrived, Macon

refused to consent to their entry on his property.

She called her supervisor, who tald her to proceed

with the cleanup. The supervisor sent 6 police

escart ta watch over the cleanup. The Macons

were charged $509 for this cleanup.

At the March 27th Council meeting, at which

the supervisor presented photographs taken af the

alleged violations at the homestead as well as the

rental property, the mayor and the six members

present voted unanimously in support af a mation

rede by Commissioner Butler to reduce the $100

fine or provide any other relief to Macon.

At the outset, Cormmissioner Butler had been

asked by Macoan’s counsel not to participate, be-

cause she had initiated the complaint at the ten-

anted property which resulted in the cited vicle-

tions. The mayor also had been asked to step aside

because the column he provided to the Times rival

to the Sun suggested he might be biased in favor af

stricter enforcement of the LCC in the black

neighborhoods generally and against Macon in

particular. Those city officers refused recusals

-14- |

Petitioners below and here challenge as un- |

canstitutional severable pravisians af the LCC an

their face, and its application through enforce-

ment by warrantless intrusians an the homestead

and rental properties owned by the Mecans.

UNCONSTITUTIONALITY OF THE LOT CLEANING CODE

The LCC imposes a “duty of the owner of

each Jat, tract ar parcel of land within the City to

reasonably requiate and effectively cantral ex-

cessive grawth and eccurnulations, as enumerated

Including certain specified items “and all ather

atjectionable, unsightly ar unsanitary matter...be

it uncovered oar under apen shelter, to the extent

anc in the menner that such lat, tract or parce) of

land..endangers the public health, sefety, or

welfore.or adversely affects ond impairs the

econamic welfare of adjacent property,” LCC §§26

AS and 26.16. In uphalding the LCC as nat being

vague ar averbrosd, the trial judge cited only ather

specific language fram the provisians in his

conclusions and findings which are not challenged

| BEST AVAIL!

- {5-

Cinly the quoted duties and the severable

abligations for the distinct severable purpase of

protection af adjacent properties are challenged,

when there has been na shawing that the alleged

failure of & property owner to take corrective ac-

tion threatens ar endangers public health, safety

ar welfare, ar does nat meet aesthetic standards.

The trial judge did find that the LCC has, as

6 legitimate public purpose, the protection of “the

public health, safety, and weltore,” end prevention

af “ecanamic or sesthetic harm to the surrounding

neighborhood” (emphasis auaed here). The judge

thus avoided the actual issue raised by petitioners

here, whether the Macans had 6 duty ta requlste

and cantrol their land ta avoid specific ecanamic

harm ta 6 neighbor whose property abuts theirs.

TESTIMONY OF THE LCC INSPECTOR

LCC Inspector Hamiltan testified an March 9,

1991. She specifically stated the? “> tekes into

account in determining whether there is an LCC

on 16 o

violation, econamic harm to the property of an

adjacent neighbor, (Transcript, Day One, p. 4). She

ites iterns that are “downgrading the next door

neighbors property that keeps it all nice, green

grass, trying to keep (up) her yard...” (id.. p. 13).

Inspector Hamilton testified that during her

training periad she was informed the LCC was the

rnethad used by the City “to keep up the neighbor-

you have same property owners and tenants that

just cant want ta keep the property up end then it

lowers the value of other adjoining properties,”

Inspector Harniltan testified (id, p. 10).

Inspector Hamiltan described her knowledge

af zoning and Jot cleaning code requirements 4s

having came tram on-the-jab-training fid., p. 13).

Curing training she got as a “cruiser” before she

wes empowered ta issue citations on her awn, she

toured the entire city. However, after she became

an LCL inspector, he worked anly in the Southwest

neighborhoods, the black areas tid., p. 39)

-\7-

Befare she became an inspector in 1966, she

was tald the lew permitted her ta have access ta

properties for enforcement purposes (id., pp. 42-

43), including “areas that cannot be visibly seen

from e public eres (id., p. 41)"

Cince in such areas, although Inspector Ha-

milton had no training in photography, she toak the

photographs later relied on to assess violations

without any eppesrance or corroboration by her

(id, p. 15). “! photograph whet | consider es far 6s

a judgment call 6 violation, an excessive amount,

an unsafe canditian, my own judgment call tid)”

All of her intrusions were mode under the

LCC without search werronts. Though the

inspector, her supervisor, the mayor, the city at-

tarney, etc., testified during trial, none suggested

thet there hed been or would be any occasion In

which o warrant is needed to enforce the LCC

For enforcement purposes, e.g. by cantrac-

tars te enter Macan grounds, a city attorney cant-

~ th-

firmed at the request of the trial judge thet

without werrants “far the purpose af cleaning ta

enforce the section, one has the authority ta

enter,” tid., pp. 62-63).

THE WARRANTLESS INVASION AT THE HOMESTEAD

After enumerating the evidence of entry by

the cantractars of the cleanup of curtilage sur-

rounding the Macon hamestead without the owners’

consent, at the direction of the City inspector pro-

tected by police escort requested ty her superyi-

sor, as 1s routinely done when objection is made to

the instrusion, the judge stated that “(t)he court

finds thet there wes little proof offered can-

cerning any fourth amendment privacy interest at

the (homestead) property and therefore no search

in Yinlatian af the fourth amendment occurred °

Inspectar Hamiltan was mare specific about

why the police were called, though Macan did not

tell her ta get off the property, (id, p. 27). “tHe

refused to let us clean the property. In order to’

~1{9-

“clean the property, the contractor has to have

nermission ta get an the property. So we needed 6

nolice escort,” (Hamilton testimony, Supra, Pp. 26)

THE WARRANTLESS INVASION AT THE RENTAL SITE

After finding there was evidence of an In-

trusion at the residence the Macans leased, “spec-

ifically the backyard of the property,” the judge

found that the petitioners Mecon had “no rea-

sonable expectation af privacy, because thet ares

“was in plein view of others,” 1€., the next door

neighbor end those frorn the City she invited on her

property to see alleged LCC vialatians.

At no point was there testimony by anyone

that the backyard was expased to genera) public

view, for instance that of snyane passing by on the

street ar even by helicopter. Bath Hamilton, (id.,

st 60-61), ond the tenant, Oscar Beacham,

(Transcript, Day 1, pp 101-102), testified that the

overhanging growth which was cited impaired the

view af a general public et curbside, or above.

Finding na canstitutional vialetians by the

City of the LCC on its face, or as applied in war-

rantless invasions of curtilage, or backyards ab-

scured fram genera) public view, or viclations of

federal constitutiana)l and statutory law because

af racial ar other municipal discriminstion with

requisite intent and/or with disparate enforce-

rent of the Cade ageinst the real properties of a

black newspeper publisher, including 6 hamestead

where the weekly was produced, the tris! judge

found for al) defendants and against all plaintitts.

Commissioner Butler had been sdded as 6

defendant after the start of the action, when her

rale in imtiating action ageinst Macon was re-

vealed fully at an evidentiary hearing an a request

by him for preliminary relief. Gladys Macon was

sdded at the request of the City as 6 party,

because she jointly owns the affected property.

In keeping with the judge's findings af July

1, 1991, judgment was entered that day. Defend-

ants were awarded casts. Plaintiffs sppesled.

Qn Aug. 16, 1992, the trial judge denied

defendants’ motion for Rule 11 sanctions. He said:

“Although the plaintiffs’ claims were nat meritar-

jous in the end, the fourth amendment claim, as

well 6s the claims of yvaqueness and overbreadth,

was potentially valid”

After briefing to the U.S. Court of Appeals,

areal argument was presented an June 29, 1992. Gn

duly 10th, the hearing panel entered an affirmance

in on unpublished form, in accordance with 64

circuit court rule. That rule affirms the judgment

anly, either because findings of fact were not

erraneaus oar there was no error of jaw ar bath.

Petitioners timely filed @ suggestion for

rehearing or rehearing en banc. On Dec. 11, 199

the suggestion was declined.

Qn March 3, 1993, an appellate judge granted

plaintifs-appellants’ stay af the Eleventh Circuit

mandate pending disposition here. The request had

been apposed by counsel for defendants-appellees.

REASONS FOR GRANTING THE WRIT

| THIS COURT TO DATE HAS NEVER ALLOWED THE

KIND QF DESCRIBED INCURSIONS ONTO PRIVATE

REAL PROPERTY BY PERSONS ACTING UNDER COLOR

CF LAW TO ENFORCE & DUTY TO PROTECT THE LAND

CF OTHERS WHEN THERE IS NO EMERGENCY. .

To encourage @ good neighbor policy, Or-

lanida, Fla., since the late 1960's, has imposed by

ordinance en explicit duty an property owners ta

meintein their lats, tracts, and perce) of lands, te

avoid adverse effect on ond impséirment to the

economic welfare of adjacent properties.

That duty is severable fram provisions to

further legitimate municipal purposes for preser-

vation af health, safety, welfare or esthetics. In

1967-66, three inspectors were assigned exclu-

sively ta enfarce that law, such assignments pre-

= , S

viously having been handled by hausing inspectors

on 23 -

Each inspector is limited functionally to

two af six councilmanic districts. The only black

on the housing/lot code inspection steff was

ssigned exclusively in 1966 ta the two districts

in which most of Orlando's 40,000 African-Ameri-

cans reside. They comprise 30% af the population.

Never having been 6 housing inspector, the

high-school educated black, Inspector Hamilton,

received only on-the-job training as 6 “cruiser”

learning ebout locel cade enforcernent. She stated

without contradiction that she was informed she

could enter properties without 6 search warrant to

determine if there were cade violations.

Also without cantredictian, Inspector

Hamilton testified that she did issue citations to

ierceived cade violators whose properties were

aoe]

eyesares adversely affecting the value of land of

their neighbors who kept their lawns neat.

- 36s

In 1966, the Orlanda mayor hed informed

readers in his written cantribution in @ weekly

targeted to blacks that they should report such

euesores sa the City could get tough on cade viala-

tars. No sirmler message is Known ta have gone ta

geners] or white audiences. A white cammissian-

er testified that neither he nor his predominent-

ly white canstituency sought such enforcement.

In 1966, Mable Butler, 6 black commiss-

ianer, referred camplaints fram neighbors to the

cliy code enforcernent buresu, about property

leased by the Mecans ta Oscar Beachum in the

black neighborhood. Inspector Harmiton testified

referrals fram commissioners were given priarity

On June 27, 1966, without cansent, she

praceeded by the side of the residence on the Me-

con rental property, into the back yerd, abscured

from public view, including frarn stove by over-

hanging foliage. The yard wes only observable

from the real property of 6 camplaining neighbor.

Inspector Hamilton took photographs of

what she perceived ta be viclatiaons, and left. Se-

veral months earlier, she had cited the property

for front yard vialations visible from the street.

The second werrentless intrusion incurred

an Good Friday, March 24, 1969, at the Macon

homestead in the black sectian, while he was pre-

paring the Florida Sun for publication. When In-

spector Hamilton arrived, he inforrned her thet he

would be appearing ot the City Council the

following Monday to seek discretionary relief from

6 $100 mandatory fine impased ss 4 result of the

second citation at the rental property. He asked

for further delay an the cleanup at the hormestead,

which also had been cited by Inspector Harm} tan.

Inspector Hamilton telephoned her super-

visor and received authority for @ police escort,

hecause Macon was refusing entry onto the

curtilage surrounding mis house Private con-

tractors fired by the City slready were there ta

=~ ?6 -

clear the land until it satisfied the inspector's

subjective standard, including her views of the

ecanamic welfare rights of adjacent neighbors.

The trig] judge denied that there was any

Wiolation af privacy ot the homestead ta warrant

Fourth Amendment consideration. He did apply the

Amendment ta the intrusian in the ather instance,

but upheld the invasion inta the tenant's backyard.

Cn appeal, ot orel argument, Macans’ counsel

informed tne Eleventh Circuit ponel that this Court

hod taken jurisdiction to heer o petition from the

seventh Circuit to determine Fourth Amendment

parameters in which no vicletion had been found,

because there was no apparent invasion of privacy

Less than two weeks later, the Eleventh Cir-

cuit did riot affirm ar adopt the trial judges rea-

saning, but accepted his judgment in this matter.

In papers for 6 rehearing or hearing en banc, the

Eleventh Circuit was urged ta await the autcame

here of the petition fram the Seventh Circuit.

- 27 -

Un Dec. &, this Court unanimously reversed

the Seventh Circuit decision in Soldal v. Cook

County, WW, 113 S.Ct. 536 (1992). Unlike the trial

judge here, this Court determined that the Fourth

Amendment had been implicated by the rernaval of

6 trailer by private porties in the presence af

Police authority, even though na “invasion” of

privacy wes said ta have occurred saldei was

remanded for determinstion of constitutional

Violstions, thet is, whether the seizure wes

unreasonable in light of the circumstances.

On Dec. 11, the Eleventh Circuit declined to

grant 4 rehearing in this case. But one of the panel

judges loter granted 6 stay of the rmiandate efter

plaintiffs-appellants sought to petition this Court.

Petitioners now ore asking this Court to re-

verse, or remend for further consideration, not

only the described intrusion et the hornestead

where na invasion of privacy was found tbelow, but

also for review af angaing rmurnicipal use of

= 28 =

werrantless searches and seizures anto curtilage

not visible from public view to enforce en inspec-

tar’s subjective view, especially ino black neigh-

barhood, about whether awners are meintaining

lend ta avoid impoirment of, or adverse effects

to, economic welfore of neighboring properties.

No ruling of this Court or any reported

decision below appears toa endorse such wer-

rentiess intrusion inte backyards, especially in an

urban setting, when the lond is not open to view by

onyone, i.e. the general public, whether fram the

ground or in the oir. Such invasion certainly has

not been contemplated for “seizures,” for capturing

the mornent in photographs or for removel without

warrant af, say, 6 troller containing newspaper

equipment, or furniture, ar usable appliances.

In Flarids, such intrusion inte an unfenced

backyard not visible from street oar front yard,

long has been held to implicate the Fourth Armend-

ment and, when unreasaneble, to void use of

«os

evidence of criminal conduct obtained on the prop-

erty, State v., Morsmon, 394 So.2d 406 (Fle. 1961)

and State v Rickard, 420 So.2d 303 (Fla. 1982).

In upholding such werrantless instrusian

Into backyards by view fram the air, this Court's

majorities to date have assumed the sighting to be

aveilotle to any member of the public, e.g. flying

through public space, Californie v. Cisrola, 476US.

207 (1966), Rileu_v. Florids, 466 U.S. 445 (1988).

Further, in Cirsalo, such sighting wes viewed os

necessary to provide 6 basis to get 6 warrant, say

ta take photographs lewfully of alleged violations.

Qn the ground, when werrantless intrusion

hes been talerated, say, inta trash left for removal

by third parties, o Court majority has stressed

that the debris was nat taken fram property, but

left outside its perimeters, on the street, an the

sidewalk, ond thus apen ta public view, California

v¥ Greenwood, 466 US. 35 (1966).

Despite such limitations, thase decisians

ate 30 =

stress that the Fourth Amendment is intended ta

protect 6 “free and apen society.” Were this Court

~ to Jet these lower court decisionis) stand, thet

concept would be mocked. We are not yet @ closed

saciety in which (1) neighbor is asked ta spy an

neighbor; (2) a public officie! can initiate 4

warrantless intrusion onto property af a news-

paper publisher with wham she disagrees, far the

taking cf emberrassing photographs and in-

pasition of fines: (3) an inspector insists that pra-

perty be mointeined ta avaid embarrassment af the

neighborhood, of people of her awn race; or (4) 4

neighbor demands adjacent property be main-

tained, sa as not ta impair the value of her own.

Yet all these circumstances have occurred

here. Sa this Court should reverse and then remand

for further consideration, now that it has been

decided that the Fourth Amendment can be

implicated, even when there 1s na ostensible

“invasion af privacy,” Saldel vy Cook County, supre.

aici alateeaienaaaiaiaiadl

-3|-

ll. DUE PROCESS OF LAW REQUIRES APPELLATE RE-

VIEW DE NOVO QF SUBSTANTIAL CONSTITUTIONAL

CHALLENGES TQ A LOCAL LAW ON ITS FACE, AND AS

APPLIED TQ CHILL PETITIONERS’ LAWFUL CONDUCT.

By affirming anly the judgment but net the

memorandum apinian analyses of several substan-

tial canstitutional claims made by the trie) judge,

and by declaring its own ruling not ta hove prece-

dential value, the Eleventh Circuit has acted in 6

way thet canflicts with applicable decisians af

this Court. For instonce, 6s nated, the Eleventh

Circuit failed ta recancile the Fourth Amendment

issues, even with Soldal_v. Cook County, supra.

although thet case was called ta its attention in

timely fashion.

Eiy application of its awn Court Rule 26.1,

without de nova review, the Eleventh Circuit alsa

» 25

denied consideration to issues deemed worthy of

review by the trial judge. He resolved challenges

to a local law made on grounds that it is

uncanstitutionally overbroad on its face, and im-

permissibly vaque. The law already hed been

applied ta punish a weekly newpaper publisher who

did nat see “eye-to-eye” with the ways and means

advocated by the former mayor in 6 rival publica-

tian te curb “eyesores” in the black community.

By dismissing this case as having no prece-

dential value without eftirming the memorandum

opinion of the trial judge, the Eleventh Circuit has

negated the need for the kinds af analyses, set

forth in US. Supreme Court rulings ta assess e.g.

whether: (a) a state or lacal practice viclates 42

USC. § 1982, Sheere Tefile Congregstion v Cobb,

461 US. 615 (1967); Jones v. Alfred H Mayer Ca.,

392 US 409, 20 LEd 2d 1189 (1966) snd Memphis

vw Greene 451 US 100 (1961): (hb) a newspaper's

interests may outweigh the otate’s;

- 33-

Branzburg_v. Hayes, 406 US. 665 (1972): and ic)

the challenged law is uncanstitutional an its face

aor as applied, if at all, Hoffman Estates v. Flip-

side, Hoffman Eststes inc, 455 US. 489 (1982).

Broadrick ¥. Oklisharna, 413 U.S. 6601 (1973) All the

afarementianed cases were cited and explained by

the trial judge who applied them, albeit

erraneausly, to the facts in an unpublished memo-

randum opinion provided here in the appendix.

But the Eleventh Circuit hes declined ta

stand by his reasoning, as it could have done with

simple affirmance. Soa the same canfusian remains

about the validity of the city’s Lat Cleaning Cade,

which was evident before this case was initiated.

When legal understanding of state or local

law similarly affecting First Amendment rights

wes derailed in the Seventh Circuit, this Court re-

manded the substantial constitutional issues far

appellate review de maya, in light of its awn

recent decision in City_of Cincinnati v. Discovery

Netwark, 61 US.L.W. 4272 iMarch 23, 1993).

- 34-

(in April 6, Pearson vy. Edgar, *91-1655

(S.Ct. 1992) was remanded. The Pearson questions

are presented at 61 U.S.L.W. 3004 (July 7, 1992).

In Pearson, petitioners campleined that an

Ninos state Jaw to inhitit racial blackbusting

was uncanstitutionally vague. The law criminel-

ized solicitation by rea) estate professionals of

residents ta sell their homes. The real estaters

alsa claimed the law inhibited legitimate business

nractices without due process he Seventh Cir-

cult rejected the claims without reaching the me-

rits on the basis of precedent upholding that law.

(in its face, the Illinois Pearson issues

would seem ta be unrelated to the City of Cincin-

nati ordinance Getermined ta be unconstitutianal

in the Discovery Network case fram Ohia. In the

latter, the municipality arqued that 4 ben it had an

comparatively few newsracks dispensing

“commercial handbills” was justified an the basis

af its legitimate interests in safety and esthetics.

- 35 -

But what Pearson, Discovery Netwark, and

this matter all have in common is apparent

disregard of constitutionally protected rights af

expression when the stete ar lacality goes sbout

enacting laws for an admittedly worthy purpose.

Pearson involves speech deemed unworthy becouse

af potentially resulting harm to societal values.

The City of Cincinnati questioned whether

carnmerics! handbills even were newspapers

entitled to ony First Amendment protectian.

Likewise here, petitioner James Macon and his

Florids Sun weekly have been denigrated through-

cut the described actions by and against Orlando.

The municipality questioned whether the

weekly had ony standing at all in this case,

whether the #0-+-year-old publication circulated

to several thousand African-Americans could even

claim to be 6 newspaper.

Though the trial judge said he did not have

to reach that issue, he accepted that the City could

validly ignore the effects the Orlanda actions were

having an Sun publication as the city went abaut

enfarcing the LCC. The city even had removed 4

trailer with newspaper equipment fram Macon

premises where the weekly was published. The

judge noted the vehicle was not identified clearly

In Discovery Network, the Court majority

wrote that it was the municipality which head the

burden af deciding if and haw it could interfere

with distribution of 6 publication it deerns nat to

te 6 “newspaper’--"the responsiblity for disting-

uishing between the two carnes with it the poten-

tis] for invidious discrimination of disfavored

subjects. See also, Metromedia, Inc. v. San Dieqa,

452 US. 490 536-537 (1981)(Brennan J. concur-

ring in judgment}...,” City_of Cincinnati v. Discovery

Network, 67 US.L.W., supra, at 4275, n. 19.

The tries) judge below here accepted that the

Florida Sun published news ebout @ zoning can-

troversy between Macon and Mable Butler, then

city cormissioner, and other information which

“ST «

the City might have found objectionable. Certainly

views differed, between the Sun publisher and the

mayor who expressed in 6 rival weekly his dis-

taste about “eyesores” in the black community.

The Discovery Network footnote sgain is

applicable, this time by citation to Lakewood ¥.

Plain Dealer Publishing Co., 466 US. 750 (1988).

“The ordinance at issue in Lakewood vested in the

mayor authority to grant or deny 6 newspaper's ap-

plication for 6 newsreck but canteined no explicit

limit on the scope of the mayor's discretion. The

Court struck down the ordinance, reasoning that 6

licensing scheme that vests such unbridled discre-

tion in 6 government official may result in either

content or viewpoint censorship, Id. at

YO9-770," noted with approval in City of

Cincinnati v. Discovery Network, supra, at n. 19.

Here, it 1S apparent that the mayor arqued

ins viewpoint about “eyesores” in a rival public-

Stian and then the City let Macon and his Sun know

- 39 -

in na uncertain terms thet the publisher cauld and

would be punished, after assertian of his awn real

property rights, by: (1) enforcernent of its Lot

Clesning Code with mandatory fine, (2) a

warrantless intrusion by private cantractars

accompanied by palice on a Good Friday at the

homestead where the weekly was prepored, and (3)

discretionary city council appellate review led by

the mayor assisted by 6 council cammissioner

with whorn there was 6 published zaring dispute.

Certainly, the city interest in attempting to

preserve or improve the quality of urban life 1s ane

thet must be accorded the highest respect,

Members af the City Council of Los Angeles vy.

Taxpauers for Vincent, 466 U.S. 769, G07 (1964).

Gut here, did Orlando also carry away First ond

Fourth Amendment rights of 6 weekly targeted to 4

very local sudience in the black quarter of Crlanda,

when the city enacted and enforced the LCL?

Did the city rely on 6 law thet was so vaque,

that 6 private owner's use of his awn property in

the black neighborhood could be trarnpled by 6

single city inspector concerned about prohibiting,

as public nuisances, iterns she regarded as “adver-

sely offectling) and impairling) the econornic

welfare of adjacent property?”

Among the items the judge nated the inspec-

tor wanted to have removed or repositioned or

covered at the tenant's property, the hamestead or

both, were: “a boat uncovered, machinery in the

yord, o trailer in the front yord..appliances {said

to be improperly stored), suta parts, building

materials, furniture, and tire/rims.”

The trie) court concluded that the

challenged LCC clearly prohibited 6 person frorn

Sllawing the accumulation of such items on

residential curtilage. Gut in enumerating the bases

for such prohibition, the judge artfully arntted the

oné severable concept in the full text of his

apinion, which has been challenged os overbroad

srid vegue--an alleged ordered “duty of 6 property

owner” to mointein lots, tracts or parcels of land,

sa that “household furnishings, and all other

objectionable, unsightly..matter” da not “adverse-

ly affect..and impair..the ecanamic welfare of ad-

jacent property,” The quates are from severable

(sic) provisions of LCC §828.15 and 26.16.

The legitimate purposes of 6 cormmunity to

maintain its health, sefety, welfare, even its es-

thetics, cannot be extended broadly ta require pra-

perty owners whoa moey be black, poor, eccentric,

and/or rigidly principled, ta protect the economic

welfare of adjacent land of neighbors. Such purpo-

ses further become suspect when « locel mayor

targets black readers to urge them to protect their

own property values by snooping inta whet their

neighbors ere doing, sa thet the city can enforce the

lot cleaning cade in their favor, cf. Papchristou vy.

City of Jacksonville, 405 US. 156 (1972).

hes

The trial judge rejected these arguments,

although he opined seperately in his written denial

af defense counsel's Rule 11 motion that “the

fourth amendment claim, as well as the claims af

vagueness and overbreadth, wes potentially valid.”

Unfortunately, like the Seventh Circuit which

denied full consideration to the substance of

assertions of unconstitutional vagueness of 4

State law in Pearson vy. Edgar, supra, the Eleventh

Circuit in this case chose not to consider de nova

the constitutionality of Orlando's lat cleaning cade

an its face or as applied.

Instead, the Eleventh Circuit erroneously

dispensed not anly with the claims ond defenses of

the parties, but, unless reversed, that court also

negated any future meaning or application for the

extensive, unreported memorandum apinion of the

trial judge, by its locel rule application.

As noted infra, the Eleventh Circuit has

recognized that de nava review is required under

- 42 -

the circumstances which brought these matters to

its attention in the first place. But pressing

caseload prablerns may have persuaded thet court

ta balance its own needs for expediency with the

due process rights of the parties, K.L. Allen and W.

M. Droze, “Applicable Practice end Procedure,”

Annual Eleventh Circuit Cose Review, 42 Mercer L.

Rey. 1255 (Summer, 1991): M. Killian, “(11th Cir.

Ct. Chief Judge Gereld) Tjoflet: Courts

averlosded..” The Florida Bar News, Julu 15, 1992.

However, prior decisional law suggests

various federal circuits recagnize that such de

nova appellate review is required, when

substantial federal questians are presented abaut

the canstitutionelity af state and local laws,

especailly in their application ta the parties.

Below the City’s attarney cited eutharity in

support af thase propasitians. He briefed in his

oresentotian af the applicable standards of review

43+

by the federal circuit the need far de nova review

for appellate assessment of constitutianal

challenge to purported vagueness of a law an its

face, 1.e., here to the LCC, when the challenge ei-

ther invalved 6 questian of law, United States y.

Clerk, 912 F.2d 1087 (9th Cir. 1990), or the law's

application, Western Nuclear, Inc. v. Huffman, 625

F.2d 1430, 1437 (10th Cir. 1967), rev. an other

grounds, 100 L.Ed.2d 693 (1988): and Allis-Chalm-

ers Credit Corp v Tri-Stote Equipment Companies,

792 F.2d 967, 970 (10th Cir. 1986).

In US v Hatch, 931 F.2d 1476, 1480 (11th

Cir. 1991), cert. den. 112 S.Ct. 235, the Eleventh

Circuit itself seemed to rule that de nova review

was required when there 1s an application of law

ta facts to determine ino Fourth Amenament case

bath the meaning of curtilage and whether in

particular circumstances it is “within the realm of

legitimate privacy expectatians,” id.

- 44-

In this case, the Eleventh Circuit granted

coral argument, but then neither explained, af-

firmed, nor denied the unpublished memorandum

opinion below. Instead, that appellate court relied

on its local circuit court rule 36.1 to accept only

the lower court's judgment. The appellate court,

without its awn published apinian, dispensed with

the case as having no precedential value. Nathing

it did thus could be interpreted explicitly or

implicitly ta dernanstrate de nova review.

That lace] appellate rule created after the

Eleventh Circuit came inta being in 1961 is

regarded as unique. The rule has been criticized

for being applied subjectively, primarily ta

dispense with civil cases surnmarily, L. K. Rotel,

“Caseload and Judging: Judicial Adaptations ta

Caseload,” 1990 Brighom Young UL. Rev. 3, 54, n.

as |

2i)i, citing Songer, Smith & Sheehan, “Nan-

publication in the Eleventh Circuit: An Empirical

Analysis,” 16 Fle St UL Rev 963, 960-89 (1969).

aaa eli

The latter analysis of 1,000 Eleventh Circuit

rulings concluded that civil right plaintiffs and

athers referred to os underdogs also were disad-

Yantaged by idiasyncratic applications of the rule

Neither of these lew review writings

specifically reaches the far-more critical matters

raised in this case, i.e, the application of the

criticized rule and the assertion of lack of

precedential value in 6 civil action entitled by

judicial decision to be given de nova review,

especially when there is an undeniably substantial

federal constitutional challenge to the vaqueness

ar overbreadth of a state or local low said to be

chilling free expression of ideas and inhibiting use

of one’s awn real property without due process.

& simple affirmance of the lawer court

rulings would have allowed petitioners ta squarely

petition for reversal of 6 yvaque and averbrosd ard-

inance (1) inhibiting First Arnendment applications

and (2) permitting enforcement by warrantless

Intrusion and removel onto curtilage. But the

appellate court's applicetian af its awn lacal rule

affirming only the judgment and negating pre-

cedent has 6 potentially more far reaching effect,

if thos Court declines to review thase actians.

if this petition is denied, if this Court does

nat reverse aor vacate the Eleventh Circuit result,

ta ossure appellate review de _ nave af the

constitutional issues raised by the petitioners, the

temptation will be great in a time of great case

lasd stress simply to dispense with meaningful

appeal in civil cases heretofore requiring the high-

est standard of review. Constitutional rights of

parties might disappear, ar be rendered unnecess-

srily uncertain, until 6 federal circuit found other

cases in which the questians cauld be resolved

with less potential for conflicts already perceived

by judges as interfering with caseload expediency.

~ ae

This Court should exercise its power af sup-

ervision, to assure that constitutional rights dan't

disappear, in sny federal circuit, even temporarily,

until an appellate court finds «4 case deemed more

Suitable to resalye complex constitutional issues.

CONCLUSION

Far the above reasons, certiorari shauld be

granted, and lower court decisions reversed The

Eleventh Circuit application of its local rule to an

offirm judgment but not the suppartive reasoning

should be set aside end the matter remanded for de

nova appellate review of the substantive

constitutional claims, Partiucularly thase arising

under the First and Fourtrt, Amendments.

WILLIAM JOHN McLEGD,*

McLeod, McLeod, &McLead, PA.

P.O. Box 950, 48 E. Main St.

Apopka, FL 34702

(407) 886-3300

Attorney(s) for Petitioner

*Counsel of record

APPENDIX

-la-

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NG. 91-3740

JAMES MACON, FLORIDA SUN, GLADY MACON

Plaintiffs-Appellants,

Versus

DONMORITA EATON (sic, an errar--in fact, the

Defendants-Appellees were the CITY OF CRLANDG,

FILL FREDERICK, then mayor, MABLE BLITLER)

Defendants-Appellees.

Un appeal from the United States District Court

for the Middle District of Florids

ORDER:

( )The motion of Appellants. for {3 stay)

recall and stsy issuance of the mandate pending

petition for writ of certiorseri is DENIED.

(x ) The motion of Appellants for fx ) stay { )

recall and stay of the mandate pending petition for

writ of certiorari is GRANTED to and Including

- ?4-

11 Merch 1993, the stay to continue in force until

the final dispasition of the case by the Supreme

Court, provided that within the periad mentioned

above there shall be filed with the Clerk of this

Court the certificate of the Clerk of the Supreme

Court that the certiorari petition has been filed.

The Clerk shall issue the mandate upon the filing

of a copy of an order of the Supreme Court denying

the writ, ar upon expiration of the stay granted

herein, unless the above mentioned certificate

shall be filed with the Clerk of this Court within

that time.

Appellants’ motion for leave to (strike) appellees’

response in apposition ta motion for stay of

mandate is DENIED.

£8) L. Eamandsan

UNITED STATES CIRCUIT JUDGE

(STAMPED AS HAVING BEEN FILED FOR THE US.

COURT OF APPEALS BY MIGUEL J. CORTEZ, CLERK,

on Merch 3, 1993, on tap of the page, here, 16.)

E'S ne

- 34 -

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 91-3740

JAMES MACON, FLORIDA SUN, GLADY MACON

Plaintiffs-Appellants,

versus

CITY OF ORLANDO, BILL FREDERICK, mayor,

MABLE BUTLER

Defendants-Appellees.

On Appes) fram the United States District Court

for the Middle District of Florids

CIN PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

Befare: TIOFLAT, Chief Judge, EDMONDSON, Circuit

Judge, and MORGAN, Senior Circuit Judge.

PER CURIAM:

(x ) The Petition(s) for Rehesring are DENIED and

no member of this panel nar other Judge in regular

active service on the Court having requested that

the Court be polled on rehearing en banc ‘Rule Jo,

Federal Rules of Appellent Procedure: Eleventh

Circuit Rule 35-5), the Suggestions) of Renearing

En Banc are DENIED.

- 46 -

{ ) The Petition(s) for Rehearing ore DENIED and

the Court having been polled at the request of one

af the members of the Court and 6 majority of the

Circuit Judges who are in regular active service

nat having voted in favor of it (Rule 35, Federal

Pules of Appellate Procedure: Eleventh Circuit

Rule 35-5), the Suggestian(s) of Rehearing En Banc

are also DENIED.

( ) A member of the Court in active service having

requested 6 poll on the reconsideration of this

cause en banc, and @ majority of the judges in

active service nat having vated in favor of it,

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

fs) / 2. fomandsan

UNITED STATES CIRCUIT JUDGE

(STAMPED AS HAVING BEEN FILED FOR THE U.S.

COURT OF APPEALS BY MIGUEL J. CORTEZ, CLERK,

on DEC 11, 1992, on top of the page, here, 3a.)

= bale} is

[DO NOT PUBLIS

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 91-3740

U.C. Dacket No. 89-327-C)y-oRL- 19

JAMES MACON, FLORIDA SUN, GLADY MACON

Plaintiffs-Appellants,

versus

CITY OF GRLANDG, BILL FREDERICK, miayor,

MABLE BUTLER

Defendants-Appellees.

Un Appeal from the United states District Court

for the Middle District of Florida

(July 10, 1992)

Before: TJOFLAT, Chief Judge, EDMONDSON, Circuit

Judge, and MORGAN, Senior Circuit Judge.

PER CURIAM:

AFFIRMED. See 11TH Cir. R. 36-1.

(STAMPED AS HAVING BEEN FILED FOR THE U.S

COURT OF APPEALS BY MIGUEL J. CORTEZ, CLERK,

on JUL 10, 1992 an top of the page, here Sa.)

- 68 -

UNITED STATES DISTRICT CQURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

D.C. Docket No. 89-327-CIV-ORL-19

JAMES MACON, The Floride Sun, and Gladys Macan

versus

CITY OF QRLANDO, FLORIDA, its Mayor Bill

Frederick, and City Cammissioner Mable Butler,

in their afficiel capacities,

CRDER

The defendant (sic) has maved this court for

sanctions against the plaintiffs. Although the

plaintiffs claims were not meritorious in the end,

the fourth amendment cleim, as well as the claims

af yvaqueness and averbreadth, wes potentially

valid. Thus, defendant's (sic) mation for sanctions

is denied (s) £. flwre Mortar

L. CLURE MORTON

SENIOR U.S. DISTRICT JUDGE

FOR THE MIDDLE DISTRICT

QF TENNESSEE, SITTING BY

ASSIGNMENT IN THE MIDDLE

FILED 91 AUG 16 DISTRICT OF FLORIDA

-7Fa-

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT GF FLORIDA

ORLANDO DIVISION

D.C. Docket No. 69-327-ClV-ORL-19

JAMES MACON, The Florids Sun, end Gladys Macon

versus

CITY QF ORLANDO, FLORIDA, its Mayor Bill

Frederick, and City Commissioner Mable Butler,

in their official capacities,

JUDGMENT IN A CIVIL CASE

[__] Jury Verdict. This action carne before the

Court for 6 trial by jury. The issues have been

tried ond the jury has rendered its verdict.

[xx] Decision by Court. This ection care to trial

or hearing before the Court. The issues have been

tried or heard and 4 decision has been rendered.

IT 1S ORDERED AND ADJUDGED that judgment is

entered in favor of the defendants and against the

Plaintiffs.

duly_1,.1991 David L. Edwards

Date Clerk

is) Cindy Burgess

(By) Deputy Clerk

-6a-

a UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

QRLANDO DIVISION

D.C. Dacket No. 89-327-ClVY-ORL-19

JAMES MACON, The Florida Sun, and Gladys Macan

versus

CITY QF QRLANDO, FLORIDA, its Mayor Bill

Frederick, and City Commissioner Mable Butler,

in their official capacities.

MEMORANDUM

This case involves tne canstitutronality,

facially and as applied, of various provisions af

Orlando's Lot Cleaning Code (LCC). The plaintiffs

are James Macon, Gladys Macon, and the Florids

Sun. Mr. and Mrs. Macon! (the Macons) are husband

and wife. The Florida Sunis « weekly newspoper

awned and run by Mr. Macon at al) times relevant ta

1--Gladys Macon was made 6 party plaintiff

pursuant ta 6 court order requiring her joinder.

ee |

~ Oe

this action. The defendants are the City of

Orlando, Mayor Bill Frederick, end former City

Commissioner Mable Butler (Commissioner Butler).

Mayor Frederick and Commissioner Butler are sued

in their afficis) capacities andy.

| A two-day tris) was held on this matter

without 6 jury. At the conclusion of the case, this

court gave the parties forty-five days ta file

proposed findings of fact and canclusions of lew.

The pertinent sections af Orlando's LCC are as

follaws:¢

2--The plaintiffs entered two capies of the LCC

Into evidence. Having reviewed both exhibits, the

court does not find any differences in the

contested sections. In fact, the pages containing

the relevant sections, 26.15 - 2818 & 26.20,

appear ta be exact duplicates of one another. It is

unclear why both exhibits were entered other than

the fact that exhibit 99 is a certified copy of the

relevant sections of the ordinance as it was in

farce as of January 15, 1991.

-106 >

ARTICLE 11. WEEDS, DEBRIS, RUBBISH AND HAZARD-

OUS TREES.

Sec. 26.15. Prohibited as public nuisances.

The existence of execssive accumulation or

untended growth of weeds, undergrowth, or ather

dead or living plant life; or stagnant water, rub-

bish, debris, trash, including but not limited to

household furnishings, and 61] other objectionable,

unsightly or unsanitary matter upon any lot, tract

or parcel of land within this City be it uncovered

ar under open shelter, to the extent and in the

manner that such lot, tract or parcel of land is or

may reasonably become infested or inhabited by

rodents, vermin or wild animals, or may furnish @

breeding place for mosquitoes, or threatens or

endangers the public health, safety or welfare. or

may reasonably cause disease, or adversely af-

fects and impairs the economic welfare of adja-

cent property, is hereby prohibited and declared to

be 4 public nuisance and unlawful unless neatly ar-

ranged for removal in accordance with directions

of the Department of Planning and Development.

Sec. 26.16. Duty of property owners generally.

It shall be the duty of the owner of each lat,

tract, ar parcel of land within the City ta reason-

ably requiate and effectively cantrol excessive

-lla-

growths and accumulations, as enumerated in Sec-

tion 28.15, on the Property and on the portion of

the adjoining public right-of-way between the

Property and the street. It shal) also be the duty

of the owner to drain, regrade or fill any lot, tract,

or parcel, Including swimming pools therean,

which shall be unwhalesome or unsanitary, have

stagnant water thereon, or be in such ather condi-

tion as ta be susceptible to producing disease.

(a) If the Director of Planning and Develapment or

his designee finds and determines that 6 public

nuisance os described and declared in Sections

26.15 and 26.16 hereof exists, he shall sa notify

the record owner of the offending Property and

demand that such owner cause the condition to be

remedied. The notice shall be given by beth phy-

sical pasting on the Property in the name of the

Property owner and by certified mail or personal

delivery to the owner or owners ss their names

and addresses ere shown upon the records of the

Orange County Tax Assessor. Notice shall be

deemed complete and sufficient when so physi-

cally posted and personally delivered or mailed.

- iZe>

(b) The notice required by subsection (a) shall

contain the following:

1. Name(s) and address(es) of the awner(s) of the

property, according ta the public records af Orange

County, Florida. |

2. Lacation of the property on which the vialation

exists.

3. A statement by the cade inspector that the

property has been inspected pursuant to chapter 26

and that « violation of Sections 26.15 and 26.16

has been determined to exist an the property,

which vialation canstitutes a public nuisance.

4 4 description of the candition which couses the

property ta be in vialation.

5. A requirement that the recard owner of the pro-

perty remedy the violation within fifteen (15)

days fram the date of natice, failing which the Ci-

ty will remedy the condition and assess against

the recard awner the casts thereof plus an admini-

strative charge.

6. A statement that, if the costs and sdministra-

tive charge ore not paid within thirty (36) days of

invoice date, 6 lien will be placed on the property

which is enforceable by foreclosure an the proper-

ty.

7. & schedule of the charges which may be

assessed against the record owner if the City has

ta remedy the vialation.

- |l3a-

5. An estimate of the total cost, based an the

Schedule of charges, if the vialation is remedied

by the City. Such estimate is nat to be interpreted

or construed as the final cast which may be

assessed, but only as 6 good-faith spproximatian

of such cost. The final assesfable cost ray be

greater or lesser than the estimate.

7. A statement thet the record owner of the

property may, within fifteen (15) days fram the

date of the notice, submit 4 written appeal, from

the determination of 5 public nuisance, which must

contain all reasons, evidence snd argument that

the cited condition does not canstitute a vialation.

notice, the owner of the property may appeal the

determination of nuisence by submitting @ written

appeal to show thet the condition does not

constitute @ public nuisance. SUCh appeal shall be

addressed to the City Clerk and shall state the

name of the property owner, the location of the ci-

ted property, and the specific grounds upon which

the cwner relies in order ta show that the cited

condition does not constitute & public nuisance.

Sec. 26.16 Removal by the City.

(a) If after fifteen (15) days from the date of the

notice na written appeal has been filed and the

Candition described in the notice has nat heen

- |\4a -

remedied, the Director of Planning and Develop-

ment ar his designee shall cause the condition to

remedied by the City at the expense of the

property owner. If 6 written appeal has been filed

and the finding of public nuisance is upheld, the

Director of Planning and Development or his

designee may cause the candition ta be rernedied

by the City at the expense of the property awner

unless the City Council otherwise directs.

(bh) If @ written appeal has been filed and the

finding of public nuisance is reversed, the City

will not assess any casts or administrative

penalties sqeinst the property, although such

sdministrative penalties would otherwise by [jud-

ge's sic] authorized by Section 26.20 of this Cade.

requiring immediate, direct action toa sbate

hazards imminently dangerous ta the health,

welfare or safety of the public, the City may upon

Planning and Develapment Director or Bureau Chief

af Code Enforcement suthorization, cause the

conditions to be immediately remedied by

City-authorized lot cleaning. Notice of said lot

cleaning shall be given within five (5) days after

the lot cleaning and according ta the procedures

detailed in Section 26.17 above, except thet the

notice shall explain that the property contained

- 136 =

hazords requiring immediate remedy, that the lot

has already been Cleaned, and that the property

owner has fifteen (15) days from the date of the

notice to apply to City Council to shaw why costs

of cleaning should not be sssessed against his

property. Seid emergency lot cleaning shall be at

the expense of the property cwner; hawever, the

property awner moy make 6 written request for 6

hearing before City Council as above pravided

within fifteen (15) doys from the date of notice

that his lot had to be cleaned and thet a charge is

being assessed therefore.

sec. 26.19. Collection of costs snd records:

secured property.

After causing the condition to be remedied, the

Director of Planning and Development shall certify

to the Director of Finance the expense incurred in

remedying the condition whereupon such expense

plus @ charge to cover City sdministrative

expenses, plus any administrative penalty as

provided in Section 26.20, shell became payable

within thirty (30) days, efter which 6 special

assessment lien and charge will be made upon the

Property, which shall be payable with interest at

he rate of eight percent (@%) per annum fram the

date of such certification until paid.

- }66 =

Such lien shall be enfarceable in the same

manner as 6 tox lien in favor of the City of Orlando

and may be satisfied at any time by payrnent

thereof including accrued interest. Notice of such

lien may be filed in the office of the Clerk of the

Circuit Court and recorded arnong the public

recards of Orange County, Florida.

lf the subject property is secured by locks

ar otherwise, the City shall have the authority to

enter said property for purposes of remedying the

violative candition, and any additional costs in-

curred by the City in gaining access ta the proper-

ty or in resecuring the property after cleaning

chal) be considered expenses af remedying the

condition.

sec. 26.20. Administrative charge;

sdministrative penalty.

(a) In addition to the actual cast af

remedying the violation cited under Sections 26.15

and 26.16, the City may alsa assess 46 charge ta

cover administrative expenses incurred in securing

and monitoring the services of 6 private can-

tractor ta remedy the violation. Séid adrmini-

strative charge shell be reviewed and approved by

City Counci) et least on on annual basis.

-tfe"

(b) If @ second violation of Sections 28.15 and

26.16 is cited against the same property end

property owner within twelve (12) months from

the date of the first citation, an administrative

penalty of one hundred dollars ($100.00) shall add-

Itionally be assessed five (5) days after the sec-

ond citation. If the candition is abated by the own-

er during thet five (5) day period, the penalty will

not be assessed. If 6 third violation of Sections

26.15 and 26.16 is cited against the same property

6nd property owner within twelve (12) months

fram the date of the first citation, an admini-

strative penalty of two hundred dollars ($200.00)

shall additionally te assessed five (5) days after

the third citation. If the condition is abated by the

owner during that five (5S) day period, the penalty

will not be assessed. Subsequent violations cited

against the same property and property owner

shall be referred to the City’s Office of Legal

Affairs for appropriate legal action Including, but

not limited to, injunctive relief, in addition to

enforcement as provided in this Chapter.

The pleintiffs challenge sections 26.15,

26.16, 26.17, 26.16, and 26.20. They claim that

either facially ar as applied these sections were

unconstitutional because of vagueness and over-

- ioe"

breadth, failure to provide substantive and proced-

ural due process, discrimination due to race, chill-

ing of first amendment rights, failure to provide

equal protection of the Jaws, and causing

unreasonable searches.

The defendants deny all of the allegations.

They slso move the court to dismiss with preju-

dice all claims by The Florida Sun for lack of capa-

city ta sue. The defendants alsa assert that the

mlaintiffs atteck of the LCC must foil because the

proper version of the LCC was never entered into

evidence. The court makes the following findings

of fact:

In order ta enforce the LCC, the City of

Orlando employs three Lot Cleaning Cade inspec-

tars. Each inspector is responsible for on oreo con-

sisting of two city councilmanic districts. The Ma-

cons resided at 1115 Henton Lane and owned rental

property located ot G26 Bethune Drive. Oscar Bea-

chum was the tenant living et Bethune during the

relevant time period. These twa properties were

~ 196 -

in the LCC area assigned toa Larreine Danzy-

Hamilton (Inspector Harmilton)- for inspection. The

residents af this ores are predominantly black and

most black citizens live in Hamilton's assigned

| oreo.4

Prior to becoming a LCC Inspector, Hamilton

hod been © “cruiser.” As O cruiser, she drove

throughout the entire city looking for vialations af

the LCC. Inspector Hamilton was trained for this

Position by riding with housing inspector wha

5--It appears that Inspector Hamilton has merried

since her initial invalvement in this action. As 4

result, she has been identified in triefs and at

trial as: Larraine Danzy-Hamilton, Lerrsine Danzy,

and Larraine Hamilton.

4--Thirty percent of the City’s populetion is black

onc most black citizens live in Harniltan's assigned

area.

-20e-

briefed her as ta wheat wes considered 6 violatian

of the LCC.”

As 6 cruiser, she was nat authorized to cite

a property for being in violation of the LCC.

Instead, upon finding 6 potential violation, she

would notify an inspector. The inspector would

then check the property and, after checking, would

inform Hemiltan as to whether or not the property

had heen in violation of the LCC. Hamilton became

a cruiser in 198?

After becoming an LCC inspector, Hamilton

had the sutharity to write citations for violations

of the LCC. As an inspector she was required to

S--At the time, housing inspectors were

responsible for enforcing the LCC in addition to

their other duties. LCC inspectors evolved from

the cruiser pasitians. °

| |

“2i9-

drive by 61] the properties in her assigned ares and

look for potential violations of the LCC. it usually

took her about four ta six months to drive by all

the properties. She wes also given authority to in-

spect yards by physically going ante the praperty,

although this was not done unless potential LCC

viclations were seen by her as she drove by the

property, or complaints concerning the property

had heen mode & lf Inspector Hamilton wes unsure

6--Generelly, LCC inspections were prompted in

ane of the following ways: (1) The different city

departments routinely referred potential

vialations they had seen ar heard sbout to the

correct department. (2) Citizens made complaints

directly to the LCC department. (3) The LCC

inspector saw a = patential violation while

patralling her assigned area.

2a.

whether samething was 6 viclation, she called her

supervisor for advice.lf 4 property is cited, 6 large

notice af the citation is placed in the yard at the

time of citation. Next, o certified letter is mailed

pramptiy to the property owner's address. This

letter contoins 6 copy of the citation information,

consequence of feilure ta clean up or otherwise

take care af the cited vialatians, and the procedure

for appeal.’

lf the violations are not corrected 4 “last

reminder” letter is sent to the property owner

approximately ten days fram the citation date.

These procedures were follawed when the Macans’

i @, )),l

7--The certified letter and the notice placed in

the yard basically cantsined the same information.

Bie

During the course of her job, Inspector

Hamilton found violations of the LCC st the Me-

cons Bethune and Henton properties. On June 2

1966, Inspector Hamilton cited the Bethune Drive

property for numerous violations of the LCC. This

inspection was prampted by complaints concerning

Mr. Beachum’s residence made ta Commissioner

Butler who was the City Commissioner for the

district wherein the Bethune Drive property was

located. The complaints were made by Mr.

Beachum’s neighbors, Verne Mann and Allen Cason.

Commissioner Butler referred the matter to the

LCC department as wes her habit for such

complaints. At the time Butler referred the

matter to the LCC department, she did nat know

that the Macons owned the property. Generally,

about one referral a month came to the LCC

departrnent fram City Hall.The property was cited

by Inspector Hamilton for the follawing violations:

Plant overgrowth, scattered lags/lirnbs, scattered

- 240 -

trash and rubble, leaving o boat uncovered,

machinery in the yard, 6 treiler in the front yard,

and improper storage of appiciances, suto parts,

building materials, furniture, and tires/rims.

A natice of the citation was placed in the

yerd of the cited property on June 27 or 26, 1966,

and 6 certified letter, as mentioned supra, was

mailed ta the Macans ot 1115 Henton Lone, Orianda

Florida, 32605 an June 28, 1986. The Macons were

thereby informed thet they hed fifteen days to

remedy the viclations, and that if they failed to da

sa, the City would remedy the problems and charge

the cast thereof ta them. The citation also

informed them of the estimated cost of city

cleanup. The Macons were informed of their right

to appeal and the procedure ta sue for appeal.

The notice and letter alsa stated the fall-

lowing: o

= 250 -

tions 26.15 and 26.16 is cited against the same

property owner within twelve (12) months fram

the date of the first citation, an administrative

penalty cf ane hundred dollars ($100.00) shal)

dditionally be assessed at the time af the secand

citation...

On February 20, 1989, Inspector Hamilton

cited the Henton Lene property for violations of

the Lot Cleaning Code. This inspection wes

prompted by @ referrel from the City Zoning

Department. The viclations included plant

overgrowth, trash in 6 trailer snd the following

items in the yard: log/limbs, scettered litter,

opplicances, auto parts, tires/rims, furniture, and

building materials. Notice of the citation wes

placed in the yard and also mailed to the Macons an

February 13, 1989 at their Henton Lane address.

- 260 -

These documents contained the same information

as ta the cansequences, appeals, etc., os the anes

previously discussed in relation ta the June 1966

citation at Bethune. On February 20, 1969, a “last

reminder letter” was sent to the Macans.

While on routine driving patrol, Inspector

Hamilton naticed petential LCC violations at 626

Bethune Drive. After inspecting the property, in-

cluding the beck yard, she cited the property on

February 17, 1909. She went into the teckyord be-

couse of the past violations in that part of the

property.® In general, the vicletions were of the

G--Inspector Hamilton testified that when she

went by the property on Bethune Drive during her

routine surveillance, she never stapped to inspect

the backyard if the front yard looked a1] right.

“270 >

same type as thase cited in June 1986 The

certified letter containing sll the relevant

informeatian concerning the citation, cansequences

and appeals was sent on February 26, 1989, to the

Macons at the Henton Lane address.

On February 22, 1989, an invaice was sent

to Mr. Macon at 1115 Henton Lone informing him

that the property at 626 Bethune Drive had been

cited twice within 6 twelve-month period. Thus,

pursuant to section 26.20 of the LCC, the property

wos being assessed 6 $100 administrative penalty

to be paid by March 21, 1989.

Mr. Macon appealed the implementation of

the $100 penalty for having two LCC violations

within twelve manths ot Bethune. He was tald to

came to the next city council meeting for 6 hearing

on the matter. On March 24, 1989, before the

hearing accurred, the City cleaned the Henton Lane

property aver Mr. Macan’s eabjections. Mr. Macan

ordered Inspector Hamilton ond the cleanup

- 260 -

crew of his property and told Hamilton that he had

on appeal hearing set. Inspector Hamilton called

her supervisor who told her to proceed with the

cleanup. The supervisor sent 6 police escort to

watch over the cleanup. The Macans were charged

$509.00 far this cleanup. The estimated cast of

cleanup as contained in the citation was $600.00.

The appeal hearing was held March 27, 1989.

Such hearings are conducted before all six of the

council members ond the meyar. Mr. Mecon’s appes!

wes denied and the $100 penalty upheld by voice

vote.

Qn April 27, 1990, Inspector Hamilton was

driving through the Henton Lane neighborhood on

routine petrol. She noticed potential LCC vio-

lations an the Macons’ property. After inspecting

1115 Henton Lane, Inspector Hamilton cited the

property for violations of the LCC. The violations

were similar ta the previous vialetians at Hentan

except that no plant overgrowth ar logs/limbs

ae |

= 290 =

were listed as violations. A letter containing the

relevant information was sent to the Macans at the

Henton Lane address on April 30, 1990. The Henton

property was reinspected on May 16, 1990 end

found ta be in compliance with the LCC.

The above findings of fact will be

supplemented as necessary as the plaintiffs’

allegations are discussed.

The LCC ordinance submitted at trial was

enacted in Decernber, 1969, except for section

26.14 which was enected in July 1989. Thus all of

the citations except for the one in April 1990 ac-

curred prior to the submitted ordinance. Where

this affects the court's decision, it will be

addressed.

The plaintiffs claim that the defendants

vialated 42 USC. § 1962 and their fourteenth

amendment right to equal protection of the jaw.

Section 1982 states:

- 5086 -

All citizens of the United States shall have

the same right, in every State and Territory, as is

enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey real and

personal property. 42 U.S.C.§1962 (1961).

This “section tartids both official and private rac-

jally discriminatory interference with property

rights.” Shasre Tefila Congregation v. Cobb, 461

US. 615, 616, 95 L. Ed 2d 594, 597 (1967); Jones v.

Alfred H. Mayer Co, 592 U.S. 409, 20L. Ed. 2d 1189

(1966) “To effectuate the remedial purposes of

the statute, the [Suprerne] Court, nee broadly

construed this language to protect not merely the

enforceability af property interests acquired by

black citizens but also their right to acquire and

usé property on on equal basis with white

citizens.” Memphis v. Greene, 451 U.S. 100, 120,

67 L. Ed. 2d 769,-766 (1961). .

= 318 *

In order to prevail in an action under 42

USC. § 1962, the plaintiffs must prave that the

defendants were motivated by racial animus-aimed

towards 6 group protected under the statute.

sheare Tefila Congregation, 461 US. at 617, 95 1.

Ed. 2d st 597; Irizarry _y. Palm springs General

Hosp., 657 F. Supp. 739 (S. D. Fle. 1986) (plaintiff

must prove that discrimination wes based on an

impermissible racial camponent): See alsa Gener-

6] Building Contractors Asso. v. Pennysylvania, 456

US. 375, 73L. Ed. 2d 635 (1982) (42USC § 1961,

the companion section to section 1962, can be

viclated only by purposeful discrimination).

Mr. and Mrs. Macon are black. The court also

notes that Mrs. Macon, Mr. Cason, Mr. Beachurn,

Inspector Hamilton, and Commissioner Butler are

also black. Tne Macans assert that they were

discriminated against in their use and ownership

of their property because of their race in violation

af section 1962. The court finds that Inspector

Hamilton does nat consider race or color when ma-

~pae*r

king inspections, nor does it matter ta her if the

neighborhood is predominetely (sic) black. The

Macons’ properties were checked in the same

manner as the ather praperties within her ares.

The enforcement procedures used were the same

as thase used throughout the City and the LCC is

not enforced differently against black citizens.

As evidence of discriminatory intent, the

Macans state that the $100 fine that Mr. Macan

appealed hed been reduced for white property

awners but wes not reduced in his case. However,

the pleintiffs foiled ta show thet their

circumstances were similar to the circumstances

of thase who received reductions in fines. INnfact,

very little evidence was produced concerning the

particular circumstances of the fine reductions.

The plaintiffs also argue that the cleanup of

the Henton Lone property provides evidence of

discriminatory intent because it occurred on Good

Friday. Once again, no proof wos offered as ta

whether or nat other properties were cleaned by

the City on Good Friday or other holidays.

The plaintiffs also point to the lack of sig-

nificant citetions in Commissioner Jeff Clark's

district as evidence of discriminatory intent, but

no evidence was produced as to whether the LCC

was enforced differently in Clark's district? The

court finds that the LCC is facially neutral with

regard ta race ond therefore nat unconstitutional

under section 1962. Based upon the abave, the

courty also finds that the pleintiffs failed to

prove by @ preponderance of the evidence that the

defendants enforced the Code against the Macons

9--No evidence was produced concerning the appli-

cation of the LCC in the other councilpersares” ~

districts. Thus, the court dos not kriow whether

the LCC had a disparate impact, and, therefore, the

plaintiffs are precluded from relying on disparate

impact to show discriminatory purpase.

- 34°

with the purpose af discriminating against them

due ta their race. Thus, the LCC was not applied in

Violation of section 1962.

Since the plaintiffs have failed ta shaw that

the defendants acted with 6 discriminatory pur-

pose, their fourteenth amendment claim must alsa

fail. Memphis v. Greene, 451 U.S. 100, 67 L. Ed. 2d

769 (1961) (absence of proof of discriminatory in-

tent foreclases anu claim that the officiel ection

challenged in the case vialotes the equal pratec-

tian clause af the fourteenth amendment); Wash-

ingtan vy. Devis, 426 US. 229, 4€ L. Ed. 2d 597

(1976) (proof of discriminatory racial purpose is

necessary ta show a violatian of the equal pratec-

tion clause); Arlington Heights v. Metro Housing

Dev. Corp., 429 US. 252, 50 L. Ed. 2d 450 (1977).

The plaintiffs also allege that the

defendants vialated their first amendment right of

free speech and/or press.

The Supreme Court has stated that:

- 35a -

lt is clear that the First Amendment does

not invalidate every incidental burdening of

the press that may result from the

enforcement of civil or criminal statutes of

general applicability. Under prior cases,

otherwise velid laws serving substantial

public interests may be enforced against the

press as against athers, despite the possible

burden that may be imposed. The Court has

emphasized that ‘“[tlhe publisher of a

newspaper has na special Immunity from the

application of general laws... .”

Brenzburg_v Hayes, 408 US. 665, 662-663, 33 L.

Ed. 2d 626, 640 (1972) (quoting fram Associsted

Press ¥. NLRB, 201 US. 103, 61 L. Ed. 953 (1937).

This court finds that the LCC is 9 law af

genera] applicability that serves the substantial

public interest of health, safety, and welfare.

Thus the first amendment does nat act to inysli-

date the LCC on its face due to sny incidental bur-

den that its enforcernent may place on plaintiffs’

first amendment rights.

- 360 -

The plaintiffs also allege that the defendants

used the LCC to herass them in arder to chill

nublication of the Florida Sun. In support of this

contention, Mr. Macon testifed that the City had

cited and towed 6 trailer from his Henton Lene

property in 1966. The trailer had contained equip-

ment used to publish the newspaper. However, it

is unclear whether the trailer was towed pursuant

to the LCC or ane of the other city cades.

Feoardless, Mr Macon did not ask if he could

remove items from the trailer before it was towed

nar did he tell the City that there were items in

the trailer that he needed for his newspaper. The

trailer itself had no identification anit signifying

its use for the Florida Sun.

Mr. Macon alse testified that stacks of

newspapers were sometimes kept at Henton Lane

for o few doaus, usually an the stoop an in a car,

and that ane of the reasons he was cited was

because af these stecks. Hawever, Inspector Ham-

= 3fe-

ton stated that no violation of the LCC occurred

fram newspapers stacked at Henton Lane.

As proof of o mative for the defendants, Mr.

Macon testified that the Flarids Sun had published

articles concerning racisrn snd litigation taking

Place against the City. He also testified thot he

snd Commissioner Butler had oppasing views

concerning @ zoning dispute and that the zoning

dispute was published in his newspaper.

The plaintiffs have failed to cerry their

burden of proof as to the first amendment issue.

There was little or no evidence that the LCC was

enforced ageinst the Macons in a menner

differently fram athers similarly situated. In

fact, the evidence submitted shows thet the

defendants did nat consider Mr. Macon’s accupetion

when applying the LCC to his properties. The court

finds that the defendants did nat use the LCC to

chill the publication af the Florida Sun

- 3068-

The caurt finds that there was little proof

offered concerning any fourth amendment privacy

interest at the Henton property and therefore no

search in violation of the fourth amendment

occurred. However, there was evidence presented

as ta this issue concerning the Bethune property,

specifically the backyard of the property.

In order to determine whether @ search in

Vialatian af the fourth amendment occurred, this

court 1s quided by Ket2 v. United States, S69 US

247, 19 L.Ed. 2d 576 (1967).

Katz... provides guidance in defining the

scope of the interest pratected by the

Fourth Amendment .... [T]he Court... held

that capacity to claim the protection of the

Fourth Amendment depends nat upon 6 prop-

erty right in the invaded place but upon

whether the person who claims the pratec-

tian of the Amendment has 6 legitimate exp-

ectation of privacy in the invaded place.

- 39a -

Rakes v. Illinais, 439 US. 126, 143, 56 L. Ed. 2d

587, 401 (1978); See also United States vy.

Jackson, 566 F.2d 1046 (Sth Cir. 1979).

The plain view doctrine defines certain sen-

sory observations as being outside the

scope of the Fourth Amendment's pratec-

tions. This dectrine is entirely consistent

with the Kat2 expectations standard since

an individual can have na justifiable expec-

tation of privacy as to activities he exposes

to the plain view of others.

Jackson, 566 F. 2d at 1052.

This court finds that the plaintiffs had no

reasanable expectation of privacy in the Bethune

property in question. Mrs. Mann was the next door

neighbor of Mr. Beachurn. She was able ta see into

the backyard at 626 Bethune from her property at

al] times of the year. Furthermore, she did nat

need ta go upto the property line in order ta see

- 400 -

Beachurn's yard and the items therein. She could

stand back in her yard and look at his yerd. Mrs.

Mann alsa invited members of the Greater Orlando

Neighborhood onto her property and showed therm

the canditians she was complaining about, !

Thus, the Bethune Drive property was in the

plain view of athers ond the plaintiffs could have

no reasonable expectation of privacy concerning it.

Therefore, Inspector Harniltan’s inspection did nat

violate the proscriptions of the Fourth

Amendment— =

10--Greater Orlanda Neighborhoods acted as a 1i6-

ison between the citizens of the City and the city

government and its members acted ta help city

citizens access the city system.

1i--Since the court has determined that the Beth-

une property was in the plein view af the public, it

is not necessary ta address defendants’ argument

that the Macans had no reasonable expectation of

privacy interest in the yards at Bethune.

-4ia-

The plaintiffs have also raised substantive and

procedural due process challenges. The court will

first address the substantive due process claim.

The substantive due process doctrine pro-

scribes “deprivation of 6 property inter-

est for an improper motive and by means

that were pretextual, arbitrary and ceapri-

cious, and... without any rational basis.”

spence vy. Zimmerman, 873 F.2d 256, 256 (11th Cir.

1989) (citations omitted).

The rational basis standard requires that

the challenged legislation must have 4

legitimate public purpose and that the

legislation must rationally relate ta the end

it seeks to achieve.

Grant _y. County of Seminole, 617 F. 2d 731, 735

(11th Cir. 1987).

In determining that 6 city’s decision with

regard to 4 building permit did nat violate sub-

stantive due process, the Eleventh Circuit stated:

-426 -

The City could rationally care that 6 struc-

ture that was only half-campleted after five

years presented 4 problem with rodents,

transients, sand erasion, or vandals, injur-

Ing the surrounding neighborhood ecanamic-

ally, environmentally, and aesthetically. Av-

aidance of such harms is 4 constitutionally

permissible abjective.

pence, G73 F. 2d at 260.

ian

The court finds that the City’s LCC has 4

legitimate public purpase in protecting the public

health, safety, and welfare, and preventing

ecanamic or eesthetic harm ta the surrounding

neighborhood. The court alsa finds that the

legislature by prohibiting the sccumulation of

trash and excessive growth af weeds oar untended

Plants rationally relates to the ends it seeks ta

achieve. The court does not find that the means

were pretextual, arbitrary, or capricious, nor does

- 430 -

the court find on improper motive oan the

defendants’ part. 12

AS previously stated, plaintiffs also raise a

procedural due process cleirn.

An essential principle af due process is thet

6 deprivation of life, liberty, oar property

“be preceded by notice and opportunity for

hearing appropriate to the nature of the

case... We have described “the ract

requirement” of the Due Process CLause as

being “that an individual be given an oppor-

tunity for 6 hearing before he is deprived

of any significant property interest.”

12--The plaintiffs also claim that the sutornatic

Imposition cf the administrative penalty, as

codified in the previous enactment nat in evidence

deprived thern af due process. The plaintiffs argue

that @ grace period was necessary as is currently

Included in section 26.20. This claim must fail.

First, the challenged enactment was not placed

into evidence. Secondly, although the penalty was

autamatically imposed upan 6 finding of @ second

Vialation within twelve manths, the penalty wauld

be withdrawn if the citation causing the penalty

Was appealed and overturned.

- 446 -

Cleveland Board of Education v. Loudermill, 470

US. 532, 542, 64L. Ed. 2d 494, 503-504 (1985)

fernphasis in ardinal & citations amitted): See also

Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987).

It appears that plaintiffs specifically chall-

enge the procedure involved in the cleanup at Hen-

tan Lane on March 24, 1989 and the appeal held an

March 27, 1989.

The court finds that the plaintiffs received

Sdequate notice and an apportunity for 6 hearing in

al] matters concerning the LCC. Although Mr.

Macon testified that he was not sure whether the

City had always placed 6 notice in his yard, he

does nat contest that he received timely notice of

the citations by mail. The court finds that the

plaintiffs failed ta show that notice was nat

placed in the yards of the property. Regardless,

the mailed natices provide the plaintiffs with

adequate natice and told thern of their right ta

appeal and the procedures invalved.

a |

- 450 -

Mr. Macon took advantage of the appeal

process ofter the second vialetion at Bethune

Drive within twelve months triggered the $100

fine provision of the LCC. He was given 6 hearing

before an enforcement board camposed of the city

counci) mernbers and the mayor. He was allowed

to present evidence and was represented by

council (sic). The members of the enforcement

board vated unanimously to uphold the fine.

Plaintiffs contest the propriety of the Ma-

yor's and Commissioner Butler's participation in

the eppeal. They argue that the Mayor should not

have participated because of his support for the

LCC. They argue that Commissioner Butler should

nat have perticipated because she referred

complaints made to her concerning the Bethune

Drive property to the LCC department. [Aln

impartial decision maker is essential.

- 466 -

[P]rior involvement in some aspects of 4

case will not necessarily bar aln) .

official from acting as o decision maker. He

should not, however, have participated in

making the determination under review

Goldberg v Kelly, 397 US. 254, 271, 23 L. Ed. 2d

207, 301 (1970) (citations omitted).

The court finds that neither the Mayor's nor

Commissioner Butler's invalvernent was such that

it negated their partislity and finds that they did

not participste in the sctusl decision to cite the

properties.

The plaintiffs alsa claim thet their pro-

cedure] due process rights were violated by the

cleanup at Henton Lene. The court finds that the

plaintiffs received proper notice concerning the

vialations and citation that led to the cleanup of

- 470 -

Henton Lane on March 27, 1969. Furthermore, the

plaintiffs received notice of their right to appeal

the citation. They were told of the consequence of

foiling ta clean up the property oan their own and

received 6 “last reminder letter” concerning the

property.

The plaintiffs argue that their procedural

due process rights were violated becouse the

cleanup of Henton occurred before the appeal hear-

ing. However, the plaintiffs did not appeal the cit-

ation given at the Henton Lene sddress which

would have acted to stop the cleanup. The court

finds that no procedural due process viclations

occurred.

Plaintiffs alsa claim that the LCC is

unconstitutional, facially and os applied, because

of vagueness ond overbreadth. In determining

whether the LCC was applied so as to be

uncanstituitonal because of overbreadth cr yva-

gueness, the court will consider only the citation

- 484 -

given on April, 1990, as this was the anly citation

that occurred after the date af the enactment of

the LCC placed into evidence.

Ina facial challenge ta the averhreadth and

vagueness of 6 law, 4 caurt’s first task is to

determine whether the enactment reaches 6

substantial arnount of constitutionally pro-

tected conduct. If it does not, then the ay-

erbreadth challenge must fail. The court

should then examine the facial vaqueness

challenge. ...

Hoffman Estates v Flipside Haffman Estates, Inc,

455 US. 489, 494-495 71 L. Ed 20d 362, 769

(1982) (footnates amitted)

The Supreme Court in Broadrick v. Oklahornea,

413 US. 601, 37 L. Ed. 2d GF0 (1973), provides

quidance as ta when & law may be considered

averbrosed:

- 496 -

[T]he plain import of aur cases is, et the ve-

ry least, that facial overbreadth adjudica-

tion iS an exception to our traditional

rules of practice ond that its function, 6

limited ane at the outset (attenuates [the

court's) (sic)) as the otherwise unprotected

behavior that it forbids the State to sanc-

tian moves fram “pure speech” tuwards can-

duct and that conduct -- even if expressive

-- falls within the scope of otherwise valid

crimina] laws that reflect legitimate state

interests in maintaining comprehensive can-

trols over harmful, constitutionally unpro-

tected conduct. Although such laws, if tee

broadly worded, may deter protected speech

to same unknown extent, there comes 4

point where that effect -- at best @ predic-

tion -- cannot, with confidence, justify

invalidating a statute an its face and sa

prohibiting a Stete from enforcing the ste-

tute against conduct that is admittedly

within its power to proscribe....To put the

matter another wey, particularly where

conduct and not merely speech is involved,

we believe that the overbreadth of 6 statute

must not only be real, but substantial as

well, judged in relation to the statutes

Plainly legitimate sweep

Brosdrick, 413 US. et 615, 37 L. Ed 2d at 642 (Ci-

~ 506 -

(tations omitted); See also American Booksellers

¥. Webb, 919 F. 2d 1493, 1500 (11th Cir. 1990).

Although the overbreadth ond vagueness

doctrines are distinct fram each ather, the vaque-

ness of an enactment must be considered when de-

ciding the averbreadth issue. American Booksell-

ers, 919 F.2d at 1505-1506 (the ambiguous scope

as well as the unambiguaus scope af an enactment

must be cansidered since ambiquous meanings

cause the pubic ta steer far wider af the unlewful

zone than if the boundaries of the farbidden areas

were clearly delineated).

This court finds that the LCC primarily

requiates conduct. The proscribed canduct is 4

proper and legitimate exercise of the palice power

reserved to the states. The court finds that the

LCC is not substantially overbroad when judged In

relation ta its plainly legitimate sweep, and thot

any averbreadth problems that may arise should be

dealt with ano cose-by-cose bosis, ond further-

=310-

more, the court finds that in the case at hand the

LCC was not applied ine manner that could be can-

sidered overbroad. See Brosdrick, 413 US. at 615,

3? L. Ed. 2d at 642: Bruno «. Garsaud, 594 F.2d

1062 (Sth Cir. 1979) (In light of both the impor-

tance af state interests underlying the statute ond

numerous situations to which it might be validly

applied, this is nat on appropriate case to invali-

date 6 statute in its entirety due to overbreadth on

the behest af ane whose conduct the stetute

constitutionally proscribes because the statute

might unconstitutionally be applied to others).

Alaw that does not reach constitutionally

protected conduct and therefore satisfies

the averbreadth test may nevertheless be

challenged on its face as unduly vague, in

violation af due process. Toa succeed, haw-

ever, the campleinant must demonstrate

that the law is impermissibly vague in all of

its applications.

- 326 -

Haffman Estetes, 455 U.S. at 497, 71 L. Ed. 2d at

—=

¥a

A plaintiff who engages in sare canduct

that 1s clearly proscribed cannot complain

of the vaqueness of the law 6s applied ta the

conduct of athers.

ld. at 495, 71L. Ed. 2d at 369 (foatnates amitted):

Parker v. Levy, 417 U.S. 733, 756, 41 L.Ed. 2d 439,

458 (1974) (One to whose conduct 4 statute

clearly applies may nat successfully challenge it

for vagueness).

The standards for evaluating the vaqueness

of a statute or ordinance were enunciated in

Grayned v City of Rockford 406 US. 104,

108-109... 33 L.Ed. 2d 222 (1972). First,

6 person must be given 6 reasonable

opportunity ta know whet the law prohibits

so that he may act accordingly. Id. Secand,

in order toa prevent arbitrary and

discriminatory enforcement, laws must

provide explicit standards. Id.

DeSisto College, Inc. ¥ Howey-in-the-Hills, 706 F.

+ 3356 *

Supp. 1492, 1496-97 (M.D. Fle. 1989), aff'd 666

F.2d 766 (11th Cir. 1969).

These standards should not, of course, be

mechanicelly applied. The degree of

vagueness that the Constitution tolerates --

as well as the relative importance of fair

notice and fair enforcement -- depend in

nart on the nature of the enactment. Thus,

economic regulation is subject to o less

strict vagueness test... The Court has also

expressed greater tolerance of enactments

with civil rather than crimine) penalties

because the cansequencs of imprecision are

qualitatively less severe ....

Finally, perhaps the mast important factor

affecting the clarity that the Canstitution

demands of a law is whether it threatens ta

inhibit the exercise of canstitutionally

protected rights. If, for example, the law

interferes with the right of free speech or

af association, 6 more stringent vagueness

test should be used.

Hoffman Estetes, 455 US. at 496-499, 71 L.Ed. 2d

371-372 (foatnates amitted).

Arnang other things, the LCC prohibits:

- 34a -

the excessive accumulation or untended

growth of weeds, undergrowth or other dead

ar living plant life, ar rubbish, debris, trash,

including but not limited to household

furnishings ... upon any lat, tract, or parcel

of land within this City... to the extent and

in the manner thet such lot, tract or parcel

af land is or méy reasonably become

infested or inhabited by rodents, vermin or

wild animals, or mey furnish o breeding

place for masquitoes, or threatens or

endangers the public health, safety or

welfare, ar may reasonably cause disease. .

The plaintiffs did nat contest the existence

af the canditions that were cited as violations at

Henton Lane an April 27, 1969. The court finds

thet there were scattered limbs/lags, scattered

litter, end improperly stored appliances, suta

parts, tires/rims, furniture, and building

materials in the yard. Clearly the LCC prohibits a

person fram allawing the accumulation af such

iterns in his or her yard. The court finds that the

- 550 -

conditions cited for at Henten Lane were clearly

Prascnibed by the LCC and therefore, plaintiffs’

challenge for vaqueness must fail.

The plaintiffs alsa claim that section 26.17

the burden on any party cited ta show that the con-

dition cited does nat constitute 4 Public nuisance.

The court finds this charge to be without merit

since the LCC does nat unconstitutionally place the

burden of proof oan the cited party.

since the court has found for the defendants

and agsinst 4ll af the plaintiffs, it is unnecessary

to determine whether the Floride Sun is 6 proper

party to the lawsuit. An appropriate order shall he

entered (s) £. flwre Martan

L. CLURE MORTON

SENIOR U.S. DISTRICT JUDGE

FOR THE MIDDLE DISTRICT OF

TENNESSEE, SITTING BY AS-

SIGNMENT IN THE MIDDLE

DISTRICT OF FLORIDA

- 56a -

Supreme Court of the United States

No. A - 663

James Macon, Florida Sun, Gladys Macon,

Petitioners

City of Orlando, et al.

ORDER

UPON CONSIDERATION of the application of

counsel for the petitioner,

1T {S ORDERED that the time for filing a petition

for a writ of certiorari in the above-entitied case, be

and the same is hereby, extended to and including

April 16, 1993.

fs/ Anthony M. Kennedy

Associate Justice of the Supreme

Court of the United States

Dated this 8th

Day of March, 1993.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.