Federal judge dismisses panhandling portion of ACLU lawsuit against City of Sarasota, plus all claims against DiPino

City attorney hoping to avoid significant attorney’s fees that would be awarded along with ‘nominal damages’

The Sam Gibbons Federal Courthouse is in Tampa. Image from Wikipedia

A federal judge has dismissed the portion of an American Civil Liberties Union (ACLU) Foundation of Florida complaint filed against the City of Sarasota in late September 2015 regarding the city’s previous panhandling ordinance, because the City Commission approved an updated ordinance earlier this year.

However, U.S. District Judge Elizabeth A. Kovachevich, in the U.S. Court for the Middle District of Florida, in Tampa, has ruled that the primary plaintiff in the case — David Cross — should receive compensatory damages, City Attorney Robert Fournier has reported to the City Commission.

While the damages may not be large, Fournier said, attorney’s fees could prove otherwise. Nonetheless, he and an ACLU of Florida officer who works as a paralegal with the plaintiffs’ lead attorney both indicated to The Sarasota News Leader this week that they hope to avoid what they characterized as a fight over the fees.

In her Nov. 2 order, Kovachevich also dismissed all claims against Sarasota Police Chief Bernadette DiPino. On Nov. 29, the judge signed another order, setting the trial for November 2017 in Tampa.

A mediation conference on the case was held on Aug. 26, court records show. A report filed with the court later that day by Peter J. Grilli, the mediator, says, “The parties have reached an impasse [his emphasis].”

Regarding the panhandling issue, Kovachevich wrote, “The City does not dispute, as a general matter, that a damages claim remains viable under these circumstances. The City instead argues that Plaintiff [David] Cross failed to sufficiently allege monetary damages. As a result,” she continued, “the City contends that recovery should be limited to nominal damages.”

The original complaint — filed on behalf of six homeless individuals — alleged that the city persistently sought “to criminalize the status of those who are homeless despite the lack of an available shelter and a deepening housing crisis.” The suit later was amended to add two more plaintiffs.

The third count of the complaint argued that the city was violating the First and 14th Amendments of the U.S. Constitution, pointing out that a city ordinance defined panhandling as “any solicitation made in person upon any street, public place, park or beach in the city, in which a person requests an immediate donation or money or other gratuity from another person.”

Although it first was filed in the 12th Judicial Circuit Court in Sarasota, Fournier asked that it be removed from that jurisdiction and re-filed with the U.S. District Court in Tampa; he said that was a more appropriate venue because the city was accused of violating a federal law.

City Attorney Robert Fournier. File photo

On March 7, after Fournier made some changes following some consultation with Michael Barfield — vice president of the ACLU of Florida and a paralegal in the office of plaintiffs’ attorney Andrea Mogensen of Sarasota — the City Commission approved an updated panhandling ordinance.

Damages and fees

On Nov. 21, Fournier commented on the judge’s Nov. 2 ruling when he offered his report to the City Commission. “We’re not going to have to spend the time and effort to defend the old ordinance,” he pointed out.

The judge did find that Cross should have been able “to exercise his constitutional right to panhandle,” Fournier said, even though the previous city ordinance was unconstitutional.

However, Fournier continued, referring to settling on the amount of damages, “I think it’s going to be very difficult to do because, first of all, it’s all speculative.” Second, Fournier noted that, as he recalled, Cross testified in his deposition that he did not panhandle.

“I think we’re talking about nominal damages,” Fournier added. Nonetheless, when a plaintiff receives nominal damages, he explained, “there can be a right to attorney’s fees.”

He felt it might be a good idea for him to talk with Mogensen about those fees, he told the board, hoping they would be “within reasonable bounds.”

It took him two tries subsequent to that discussion to reach someone in Mogensen’s office, Fournier told the News Leader in a Dec. 19 telephone interview, and it was Barfield with whom he spoke; that conversation took place earlier on Dec. 19, Fournier added.

Michael Barfield. File photo

Mogensen was out of town for the holidays, Fournier said, so Barfield told Fournier that she would consult with co-counsel from the ACLU after the first of the year. “They may be coming back with a number around what those fees would be,” Fournier added in the News Leader interview. Then the City Commission would have the opportunity to decide whether it wished to go ahead and settle that part of the matter.

“We’re early in that process,” Barfield told the News Leader in a separate telephone interview, also on Dec. 19.

Similar to what Fournier explained to the City Commission last month, Barfield pointed out to the News Leader that plaintiff David Cross is due “nominal damages.” Barfield added, “The bigger number is attorney’s fees.” For example, Barfield continued, parties in a legal case can fight over a $500 claim “and run up a bill of half a million dollars in attorney’s fees.”

Barfield said he believes Fournier and the city’s insurance adjustor “want to avoid that situation.”

Therefore, he continued, he and Mogensen would “review their time sheets and give the city a number.”

He concurred with Fournier that it “doesn’t make sense” to fight over the fees.

Claims against DiPino

In regard to the claims against Bernadette DiPino, the ACLU argued that, as the city’s chief of police, “[she] has the responsibility for enforcement of municipal ordinances.”

The suit contends, “The City, through its exercise of police power, routinely engages in conduct that harasses homeless individuals and prevents them from sleeping.” Yet, even though no shelter exists within Sarasota County except at the Salvation Army, “the City regularly gives homeless individuals sleeping in public spaces a warning that if they are discovered or seen sleeping in public places again they will be cited for trespass, lodging out of doors, being in a public park after hours, or other criminal offenses.”

The complaint also argues that the Salvation Army has insufficient space for homeless individuals seeking shelter there.

Since 2014, the Police Department organized a Homeless Outreach Team (HOT) to encourage homeless people to seek shelter and assistance with services offered by about 20 nonprofit organizations in the community. The department later added a second team. Each comprises an officer and a case management worker.

A City of Sarasota email exchange in May included this photo of an apparently homeless man in Bayfront Park. Image courtesy City of Sarasota

In February, Capt. Kevin Stiff, who oversees the HOT program, told members of the Continuum of Care for Sarasota and Manatee counties that in 2015, the Police Department arrested only three people for sleeping out of doors. During the Nov. 21 City Commission meeting, he explained that the HOT teams’ goal remains helping homeless people get the aid available to them. However, police officers enforce the city’s laws if an individual is offered help, refuses it and continues to violate the law.

Kovachevich noted in her Nov. 2 order that the court already had dismissed the complaint’s claims against Sarasota Police Chief DiPino in her official capacity “because they were redundant to the claims asserted against the City.” Furthermore, the court “directed that Chief DiPino be terminated as a defendant.” However, Kovachevich continued, the complaint “continues to assert a claim for injunctive relief against Chief DiPino,” and DiPino has moved to dismiss that claim, arguing that it is in violation of the court’s earlier order.

“Because the City is named as a defendant in this action, the official-capacity claims against Chief DiPino are redundant,” Kovachevich wrote, citing a 1991 11th Circuit Court of Appeals ruling. “Accordingly,” she added, “all claims against Chief DiPino in her official capacity are properly dismissed as redundant.”

Latest filings in the case

Andrea Flynn Mogensen. Image from her law firm website

On Nov. 8, plaintiffs’ attorney Mogensen filed a motion seeking an extension of the cut-off for discovery in the case from Dec. 12 to April 11, 2017. She noted the orders regarding the panhandling part of the complaint and DiPino, and she then pointed out that the city had not filed an answer or affirmative defenses, though she expected that to take place within 20 days.

Mogensen asked for “additional time to conduct discovery, including depositions,” adding, “Engaging in discovery without the benefit of an answer or affirmative defenses is unadvisable and would cause an undue burden for Plaintiffs. Without knowing what facts are disputed and what defenses the City intends to assert, the Plaintiffs will be unable to test the defenses the City may advance …”

On Nov. 30, Judge Kovachevich postponed the due date for discovery to April 11, 2017, and she ordered that a final pretrial conference be held before Magistrate Julie S. Sneed on Oct. 2, 2017.