IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL

CIRCUIT, IN AND FOR SEMINOLE COUNTY, FLORIDA

 CASE NO.    05-CA-367-16-G    

THOMAS A. BINFORD,

         Plaintiff,

            vs

 CITY OF WINTER SPRINGS,

a Florida Municipality, and STATE OF FLORIDA,

CHARLIE CRIST, Florida Attorney General,

 

Defendants.

                                                                                              /

AMENDED COMPLAINT

COMES NOW, THOMAS A. BINFORD, pro se litigant, and files this Complaint for declaratory relief against the City of Winter Springs and the State of Florida, and for cause would state:

ALLEGATIONS COMMON TO ALL COUNTS

1.  Thomas A. Binford (Binford), owns property within the City limits of the City of Winter Springs (“City”), located at 426 E. Hwy 434, Winter Springs, Florida 32708.

2.  The City of Winter Springs is a duly authorized municipality, operating and existing under the laws of the State of  Florida, with its principal place of business at 1126 E. Hwy 434, Winter Springs, Florida 32708.          

3.  Binford purchased the subject property in 1978, and thereafter, in 1987, Binford sought and received permission to place an advertising business sign on his property immediately adjacent to the State Road (“Hwy”) 434 right-of-way.

4.  On November 10, 1997, the City adopted Ordinance Number 683 creating the State Road 434 Redevelopment Overlay Zoning District, which included new standards for the size, type, content and location of signs along Hwy 434 in Winter Springs.  Ordinance 683 was amended June 12, 2000 by Ordinance 2001-17 and now codified as §20-486 and §20-454 of the Winter Springs City Code (“Code”) attached hereto as Composite Exhibit “A” (Sign Ordinance).

5.  On or about September 6, 2002, Binford applied to the City Board of Adjustment (BOA) for a variance from compliance from the Sign Ordinance.  The Board denied the variance and Binford moved to the City Commission for relief.  On November 25, 2002, the Commission denied Binford’s request and gave Binford 90 days to bring the sign into compliance. 

6.  Binford filed a Petition for Writ of Prohibition with the Circuit Court, the same of which was denied and Binford took an appeal to the State of Florida Fifth District Court of Appeal.  At oral argument the appellate panel noted to Binford that declaratory action would have been the appropriate remedy here, not a Petition for Writ of Prohibition and affirmed the lower court’s decision by the Fifth DCA Opinion dated May 25, 2204, Exhibit “B”.

7.  The City took no further action against Binford until a Notice of Violation was left at Binford’s door on November 1, 2004, a copy of said violation is attached hereto as Exhibit “C”.

8.  In December 16, 2004, Binford was served by hand delivery a Notice of Code Violation which demands that Binford comply with §20-454 and §20-486(1) of the Winter Springs Ordinance (Exhibit “D”); to do so would violate Binford’s constitutional rights.  Subsequently, Binford was served with a Notice of Hearing to appear before the City Code Enforcement Board (“Board”) on April 19, 2005 pursuant to a violation of the above City code (Exhibit “E”).  Binford requested a stay of this Code Board hearing as he had a hearing scheduled before the circuit court on a Motion for a Restraining Order against the City asking the Court to stay further City action until the constitutionality of the City’s action was decided by the Court (Exhibits “F” and “G”).  The City denied Binford’s request for continuance of the Board hearing (Exhibit “H”).  At the April 19, 2005 hearing, the Board acting pursuant to Chapter 162, Florida Statutes COUNTY OR MUNICIPAL CODE ENFORCEMENT found Binford’s sign in violation of City Code and gave Binford 10 days to take subject sign down or a daily fine of $100 would be imposed on Binford beginning the 11th day (April 30, 2005) in violation.  Binford was never given a written order to that effect.  Chapter 162, Florida Statutes gave Binford 30 days in which to appeal the Board’s ruling to the circuit court. The next day, April 20, 2005, the circuit court denied Binford his request for a restraining order until the constitutionality of the City’s action was decided by the court.

COUNT I

DECLARATORY ACTION

9.  The Plaintiff (Binford) readopts and realleges paragraphs 1 through 8 above and would state:

10.  Thomas A. Binford brings this action for declaratory relief pursuant to §86.011, Florida Statutes.

11.  The City of Winter Springs Sign Ordinance is unconstitutional on its face and as applied to Binford, specifically:

A.  The Sign Ordinance makes no provisions for grandfathering of existing signs nor any provisions to compensate a business person for the dismantling and removal of an existing sign;

B.  The Sign Ordinance is vague and ambiguous and results in arbitrary and capricious application.

C.  Specifically, Binford initially sought a variance to the location of his sign and at no time did the City require Binford’s sign to be replaced by a monument sign.

D.  Now the City is demanding not only relocation but also a completely new monument sign.

E.  The Notice of Code Violation served upon Binford (Exhibit “I”) demanded Binford correct the alleged violations with 15 days while the Notice of Code Violation served upon Binford’s neighbor, Arthur O. Duncan (Exhibit “J”) required Duncan to make correction within 30 days.

F.  The Sign Ordinance is discriminatory and is content based in violation of free speech pursuant to the First Amendment of the United States Constitution.

G.  The Ordinance discriminates in favor of a large lot size and against property owners of small lots.  The Sign Ordinance at §20-486 states that signs “shall be located no closer than ten feet from the front, side or rear property lines”.  Binford’s property as well as dozens of similarly situated properties are 60' x 100' or 6,000 square feet in area.  The setbacks, therefore, effectively reduce the available area to locate the building, the paved parking area and a sign...3,200 square feet on 47% of the property.  On the other hand, the property owner with a 200' x 200' or 40,000 square foot lot would lose only 19% of its area pursuant to the Sign Ordinance.

H.  On it’s face, and as applied, the Sign Ordinance results in a constitutional deprivation.  The Sign Ordinance unreasonably restricts the use and benefit of Binford’s property and results in a taking of property and the loss of one or more valuable parking spaces in violation of Article X, §6 of the Florida Constitution.  Additionally, ingress and egress to Binford’s property would be detrimentally affected and become hazardous.         

I.  The Sign Ordinance, and in particular the set back requirements, do not substantially advance any public purpose.  The setback requirements are nothing more than an out and out scheme of extortion.  This is evidenced by the City’s recent communication with the Hwy 434 property owners, requesting the donation of an easement for purposes of landscaping (Exhibit “K”).  The City explains that the Florida Department of Transportation (FDOT) acknowledges compensation would normally be required but the City and/or FDOT do not have money to compensate property owners on this project.

1.  The relocation of the signage on Hwy 434 through the City is an extortion scheme whereby the relocation of the sign, at the owner’s expense, relieves the City and/or FDOT from paying compensation for the removal of the sign when additional property is acquired for landscaping or road right-of-way.

J.  The Sign Ordinance does not substantially advance the purpose for which it was intended.  The relocation of a sign and the replacement of the same with a tree or other landscaping at the City’s request attempts to saddle the property owners along Hwy 434 with the cost of landscaping to benefit the general public and is repugnant and unconstitutional.

12.  Binford and the City have a controversy as to whether the Ordinance on it face, or as applied to Binford requires compensation for the loss of real property and the sign.

13.  Chapter 162, Florida Statutes is unconstitutional on its face and as applied to Binford in that it gives a violator of the statute 30 days to appeal the Code Board’s fine order while the fine goes into effect within 10 days of the order rendered.

14.  Chapter 162, Florida Statutes conflicts with Chapter 475, Florida Statutes pursuant to required sign elements.

15.  The criteria evinced in the variance process of the City’s code is arbitrary, subjective and capricious and violates Binford’s due process as evidenced by sign variances granted by the City under the same conditions as espoused by Binford (Exhibit “L”).  Therefore, the City’s Code Ordinance is unconstitutional.

16.  Binford believes the Sign Ordinance, City Code and Chapter 162, Florida Statutes are unconstitutional and in violation of Binford’s constitutional rights under Article X, § 6 of the Florida Constitution, First Amendment, Fifth Amendment and Fourteenth Amendments of the United States Constitution and 42 U.S.C.A. §1983. The City believes it may enforce the Sign Ordinance and City Code as stated therein.

17.  Plaintiff Binford is in doubt as to his rights pursuant to displaying his sign and the constitutionality of the City’s Sign Ordinance,  the City’s Code and Chapter 162, Florida Statutes.

 COUNT II

RESTRAINING ORDER

18.  The Plaintiff Binford readopts and realleges the paragraphs 1 through 8 and 11 through 17 above.

19.  The City is demanding compliance with its new Sign Ordinance and has issued a $100 a day fine order against Binford through the Code Enforcement Board proceedings.  Unless the City is restrained and enjoined from further proceedings and, in particular, the Code Enforcement Board proceedings, the City’s real property owners will be forced to go through proceedings that cannot adjudicate the constitutionality of the application of the Sign Ordinance, City Code  and Chapter 162, Florida Statute to them. 

20.  The City’s threat to pursue Code Enforcement Board proceedings and ultimate penalties is both a great and irreparable injury at this time and will be in the future.  To require any City property owner to go through proceedings that cannot result in a resolution of a constitutional issue while at the same time incurring an on-going penalty will result in irreparable damages to them.  And the loss of circuit court jurisdiction to the Code Enforcement Board jurisdiction denies them the right to an evidentiary hearing on the constitutionality of the Sign Ordinance, City Code and Chapter 162, Florida Statutes.

WHEREFORE, BINFORD prays this Court to declare Binford’s and the City’s real property owners’ constitutional rights under the City’s Sign Ordinance, City Code and Chapter 162, Florida Statutes and restrain the City from conducting any further proceedings and/or Code Enforcement Board proceedings and/or Board of Adjustment proceedings until this Court has ruled upon the constitutionality issue herein.  Binford requests this honorable Court order the City to reimburse Binford all fees and costs expended by him in his endeavor to litigate his rights pursuant to the City’s Sign Ordinance and City Code.

 PLAINTIFF’S ENGLAND (JENNINGS) RESERVATION

In the event this honorable Court denies relief under state law, Plaintiff hereby reserves any and all right to bring a federal cause of action arising out of the violation of the First, Fifth and/or Fourteenth Amendments of the United States Constitution and 42 U.S.C.A. §1983.

 PLAINTIFF’S BERT HARRIS ACT RESERVATION

In the event this honorable Court denies relief under state law, Plaintiff reserves any and all right to bring a cause of action against the City of Winter Springs under the auspices of the Bert Harris Act unless specifically denied by this Court.  The timeliness of such cause of action will begin with the final decision of the Court in the present matter herein.

Dated this            day of June, 2005.

 

                                                                    

THOMAS A. BINFORD, Plaintiff

426 E. Hwy 434

Winter Springs, Florida 32708

407-327-1315