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Opinion of The Court Re. Appeal - James Ficken
Opinion of The Court Re. Appeal - James Ficken
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No. 21-11773
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JAMES FICKEN,
Trustee, Suncoast First Trust,
SUNCOAST FIRST TRUST,
Plaintiffs-Appellants,
versus
CITY OF DUNEDIN, FLORIDA,
DUNEDIN CODE ENFORCEMENT BOARD,
MICHAEL BOWMAN,
in his official capacity as Code Enforcement Board Chairman,
LOWELL SUPLICKI,
in his official capacity as Code Enforcement Board Vice-Chair,
ARLENE GRAHAM,
in her official capacity as a member of the Code Enforcement
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Board, et al.,
Defendants-Appellees.
____________________
Palm Bay, 59 So. 3d 295, 298 n.5 (Fla. 5th Dist. Ct. App. 2011) (ex-
plaining that “[i]t is necessary to fill the procedural gaps in [Chapter
162] by the common-sense application of basic principles of due
process” (internal quotation marks omitted)).
Ficken’s argument that review by a state court would have
been inadequate because it would have been confined to the record
before the Board does not cut it. Although Florida law confines re-
view to the record before the Board, see FLA. STAT. § 162.11, Ficken
could have developed the record by appearing at his hearings. He
also could have raised the issue of whether the notice he received
was insufficient. See Cent. Fla. Invs., 295 So. 3d at 295 (explaining
that “section 162.11 provides for an actual appeal” through which
“all errors below may be corrected: jurisdictional, procedural, and
substantive” (internal quotation marks omitted)). Ficken’s argu-
ment that the record did not contain the facts that he wanted at-
tempts to transform his failure “to take advantage” of adequate
state procedures to support his claim, which our precedent fore-
closes. See Cotton, 216 F.3d at 1331.
B. The Fine Was Not Excessive.
Assuming, as the parties do, that the Eighth Amendment
governs this fine, we apply a well-established framework to deter-
mine whether it is unconstitutionally excessive. That framework
generally applies in the forfeiture context. See United States v. Ba-
jakajian, 524 U.S. 321, 334 (1998) (“We now hold that a punitive
forfeiture violates the Excessive Fines Clause if it is grossly dispro-
portional to the gravity of a defendant’s offense.”). A fine may be
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under the final factor repeatedly having overgrown grass is not par-
ticularly harmful, the fine is not excessive in the light of the other
two factors.
C. Ficken Forfeited his State Claims.
Ficken forfeited his due-process and excessive-fines claims
under the Florida Constitution. Ficken’s initial brief contains no ar-
gument addressing either claim under state law. It mentions them
only in passing references, noting that the district court applied the
same analysis to his state and federal claims. We have explained
many times that “passing references” to claims “buried within” the
“main arguments” in a brief are not enough to properly present
issues on appeal. Sapuppo v. Allstate Fla. Ins. Co., 739 F.3d 678, 682
(11th Cir. 2014) (internal quotation marks omitted).
IV. CONCLUSION
We AFFIRM the summary judgment in favor of the City.
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Electronic Filing
All counsel must file documents electronically using the Electronic Case Files ("ECF") system,
unless exempted for good cause. Although not required, non-incarcerated pro se parties are
permitted to use the ECF system by registering for an account at www.pacer.gov. Information
and training materials related to electronic filing are available on the Court's website. Enclosed
is a copy of the court's decision filed today in this appeal. Judgment has this day been entered
pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP
41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for
filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise
provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is
timely only if received in the clerk's office within the time specified in the rules. Costs are
governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for
attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested
Persons a complete list of all persons and entities listed on all certificates previously filed by
any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be
reheard must be included in any petition for rehearing or petition for rehearing en banc. See
11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming
compensation for time spent on the appeal no later than 60 days after either issuance of mandate
or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via
the eVoucher system. Please contact the CJA Team at (404) 335-6167 or
cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher
system.
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Please use the most recent version of the Bill of Costs form available on the court's website at
www.ca11.uscourts.gov.
For questions concerning the issuance of the decision of this court, please call the number
referenced in the signature block below. For all other questions, please call Tonya L.
Richardson, BB at (404) 335-6174.
Sincerely,