Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>

COMPLAINT - INJUNCTIVE RELIEF SOUGHT by kpt12551

VIEWS: 29 PAGES: 20

									                          UNITED STATES DISTRICT COURT
                           MIDDLE DISTRICT OF FLORIDA
                               ORLANDO DIVISION


RAYMOND HOUSTON                        )
                                       )
       Plaintiff,                      )
                                       )
v.                                     )              Case No.
                                       )
GAY N. WILLIAMS, in her official       )
capacity as Executive Director of the  )
Brevard County Weatherization Program; )
and BREVARD COUNTY,                    )
                                       )
       Defendants.                     )
____________________________________)


                       COMPLAINT – INJUNCTIVE RELIEF SOUGHT

                                       INTRODUCTION

       1.      Plaintiff Raymond Houston is a low-income Brevard County resident who

qualifies for weatherization assistance made possible by federal monies granted to Brevard

County through the State of Florida, Department of Community Affairs. Plaintiff meets all

qualifications necessary to be considered for economic assistance to weatherize his home;

the qualifications are set by the U.S. Department of Energy and are based solely upon

income. This action arises because defendant Gay N. Williams, pursuant to Brevard County

policies, denied such assistance to Mr. Houston. Defendants’ actions, taken pursuant to color

of law, have deprived, and continue to deprive Mr. Houston of his federal rights. In addition,

defendants’ actions give rise to various state law claims.
                                          JURISDICTION

        2.        Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for violation of his

federal rights.

        3.        This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202, and injunctive relief

pursuant to Fed.R.Civ.P. 65. This Court has supplemental jurisdiction over plaintiff’s state

law claims. 28 U.S.C. §1367.


                                            PARTIES

        4.        Plaintiff Raymond Houston is a Brevard County resident who meets all

qualifications necessary to obtain weatherization assistance.

        5.        Defendant Gay N. Williams is the Executive Director of the Brevard County

Weatherization Program. She is sued in her official capacity.

        6.        Brevard County Board of County Commissioners has promulgated the official

policy complained of herein. Defendant Brevard County is subject to suit in its own name

pursuant to Fla. Stat. §125.15.


                                             FACTS

        7.        The Energy Conservation and Production Act, 42 U.S.C. §§6851-6873, is a

federal statute designed to provide financial assistance to low income persons to take energy

conservation measures.

        8.        The sole criteria for qualification for such assistance has been set by the

                                                2
United States Department of Energy in 10 C.F.R. §440.22 and is based solely upon income.

       9.      The State of Florida, through its Department of Community Affairs, receives

federal monies as a grantee pursuant to the Energy Conservation and Production Act. The

Department, in turn, awards monies to subgrantees throughout the State for weatherization

assistance.

       10.     The Brevard County Weatherization Program is a subgrantee that receives

such funding for weatherization assistance.

       11.     Plaintiff Houston meets the financial qualifications set forth in 10 C.F.R. §

440.22 and applied for weatherization assistance from Brevard County.

       12.     Brevard County adopted as official policy, a further requirement for

weatherization assistance. That policy defines “ineligible applicant” to be:

              Any person who must register with the Brevard County Sheriff’s
       Office or the Florida Department of Law Enforcement under Florida Statute
       773.13 as a person convicted of a felony in any court of this state or any
       person who has been convicted in a federal court or in any court of a state
       other than Florida or in any foreign state or country, which crime, if
       committed in Florida, would be a felony; or Any person listed by the Florida
       Department of Law Enforcement as a sexual predator or a sexual offender as
       provided for under Florida Statutes 775.21, 943.0435, 944.606, or 944.607.

       13.     In addition, Brevard County further requires that “if any household member

is a convicted felon, he or she must have his or her Civil Rights restored or must have been

pardoned in order to receive assistance.”

       14.     Despite meeting federal eligibility requirements, plaintiff’s application for

assistance was rejected under Brevard County’s additional requirements. A true and accurate


                                              3
copy of the initial rejection is attached hereto as Exhibit 1 (June 30, 2005, letter from Roy

Davis, Construction Project Supervisor to plaintiff).

        15.     Plaintiff appealed the June 30 denial. Brevard County again rejected his

request for assistance. A true and accurate copy of the denial of the first appeal is attached

hereto as Exhibit 2 (August 5, 2005, letter from Chenita Joiner, Assistant Director to

plaintiff).

        16.     When the Florida Department of Community Affairs learned of Brevard

County’s additional eligibility requirements, it notified the County that it was not permitted

to “add eligibility requirements which are more restrictive than the federal regulations.” A

true and accurate copy of that notification is attached hereto as Exhibit 3 (August 22, 2005,

letter from Karen Ventimiglia to defendant Gay N. Williams).

        17.     Plaintiff appealed the August 5 denial to defendant Williams. To date,

defendant has not responded.

        18.     Plaintiff’s counsel wrote to defendant Williams on plaintiff’s behalf inquiring

about the status of the appeal. A true and accurate copy of the letter is attached hereto as

Exhibit 4 (October 6, 2005, letter from Randall C. Marshall to defendant Williams).

        19.     Defendants’ County Attorney’s office responded, saying that it would take

action by the Board of County Commissioners because of the existence of County policy that

was disqualifying plaintiff. A true and accurate copy of the response is attached hereto as

Exhibit 5 (October 14, 2005, letter from Assistant County Attorney Richardson to Randall

C. Marshall).

                                               4
       20.     The Board of Brevard County Commissioners met and rejected altering their

policy which excluded plaintiff from consideration for weatherization assistance. Defendant

County intended to penalize individuals convicted of certain crimes in order to prevent them

from obtaining weatherization assistance.

       21.     Plaintiff’s counsel tried to obtain a formal response or resolution of plaintiff’s

appeal but no response has been forthcoming. A true and accurate copy of the request is

attached hereto as Exhibit 6 (December 14, 2005, letter from Randall C. Marshall to

Assistant County Attorney Richardson).

       22.     Any further acts by plaintiff to achieve a resolution through defendants’

appeal process would be futile.

       23.     Unless restrained by this Court, plaintiff will be denied the ability to obtain

weatherization assistance because of defendant County’s restrictions, which are not permitted

under federal law. Plaintiff will be irreparably harmed by such denial.

       24.     Plaintiff has no adequate remedy at law because the denial of plaintiff’s rights

cannot be remedied through legal relief.

       25.     The actions of defendants complained of are under color of state law and were

taken pursuant to municipal custom, practice and policy.

       26.     The Brevard County Board of County Commissioners entered into a written

contract with the Department of Community Affairs regarding the use of weatherization

assistance funding. Among the provisions of the contract were obligations for Brevard

County to comply with applicable Federal laws, rules and regulations. A copy of the relevant

                                               5
pages of the contract is attached as Exhibit 7.

        27.     The contract, inter alia, requires defendants to comply with the eligibility

requirements set forth in 10 C.F.R. Part 440.


                                   FIRST CAUSE OF ACTION

        28.     Defendants’ policy excluding certain individuals, including plaintiff, because

of their criminal record is in violation of plaintiff’s right to seek assistance under the Energy

Conservation and Production Act and the Department of Energy’s duly promulgated

eligibility requirements, and is actionable pursuant to 42 U.S.C. § 1983.


                                 SECOND CAUSE OF ACTION

        29.     Defendants’ policy excluding certain applicants from eligibility for

weatherization assistance, including plaintiff, lacks any rational basis and deprives plaintiff

from his right to equal protection under the Fourteenth Amendment to the U.S. Constitution,

and is actionable pursuant to 42 U.S.C. §1983.


                                  THIRD CAUSE OF ACTION

        30.     Defendants’ failure to act upon plaintiff’s timely appeal of defendants’

decision to exclude plaintiff from eligibility for weatherization assistance deprived plaintiff

of his right to due process under the Fourteenth Amendment to the U.S. Constitution, and

is actionable pursuant to 42 U.S.C. §1983.




                                               6
                                 FOURTH CAUSE OF ACTION

       31.     Defendants’ policy excluding certain applicants from eligibility for

weatherization assistance, including plaintiff, is an unlawful bill of attainder aimed at

individuals such as plaintiff and inflicts punishment upon them without a judicial trial, in

violation of U.S. Const. art. I, § 9 cl. 3, and is actionable pursuant to 42 U.S.C. § 1983.


                                  FIFTH CAUSE OF ACTION

       32.     Defendants’ policy excluding certain applicants from eligibility for

weatherization assistance, including plaintiff, violates the ex post facto clause of the U.S.

Const., art. I, §10 cl. 1, and is actionable pursuant to 42 U.S.C. § 1983.


                                  SIXTH CAUSE OF ACTION

       33.       Defendants’ policy excluding certain applicants from eligibility for

weatherization assistance, including plaintiff, is an unlawful bill of attainder aimed at

individuals such as plaintiff and inflicts punishment upon them without a judicial trial and

constitutes an ex post facto law, in violation of Fla. Const. Art. I, §10.


                                SEVENTH CAUSE OF ACTION

       34.     Defendants entered into a contract with the Florida Department of Community

Services in order to provide weatherization assistance to income eligible individuals in

Brevard County. Plaintiff is a third party beneficiary to that contract and therefore may

enforce the terms of the contract. Defendants’ policy excluding certain applicants from


                                               7
eligibility for weatherization assistance, including plaintiff, constitutes a breach of the

contract which, inter alia, specifically requires defendants to comply with federal eligibility

requirements, including those found in 10 C.F.R. Part 440.


       WHEREFORE, plaintiff respectfully requests this Court:

       A.      enter a declaratory judgment that Defendants’ policy excluding certain

applicants from eligibility for weatherization assistance, including plaintiff, violates:

               1.      plaintiff’s rights under the Energy Conservation and Production Act,

                       together with its duly promulgated federal eligibility regulations;

               2.      plaintiff’s right to due process and equal protection as guaranteed by

                       the Fourteenth Amendment to the U.S. Constitution;

               3.      the bill of attainder prohibition under the U.S. Constitution;

               4.      the ex post facto prohibition under the U.S. Constitution;

               5.      the bill of attainder and ex post facto prohibitions under the Florida

                       Constitution; and

               6.      the contract between Brevard County and the Florida Department of

                       Community affairs.

       B.      enter a preliminary and permanent injunction enjoining defendants from

rejecting plaintiff’s application because of Brevard County’s challenged policy;

       C.      order defendants to add plaintiff to any list of approved applications in the

order in which he would have appeared but for the rejection based upon the challenged


                                              8
policy;

          D.   award plaintiff actual and/or nominal damages against defendants;

          E.   award plaintiff the costs and expenses of this action together with reasonable

attorneys’ fees; and

          F.   retain jurisdiction of this case and grant plaintiff such other and further relief

as may, in the discretion of this Court, be just and proper.



                                       Respectfully submitted,


                                       ______________________________
                                       Randall C. Marshall, Esq.
                                       Florida Bar No: 181765
                                       ACLU FOUND ATION OF FLORIDA , INC.
                                       4500 Biscayne Boulevard, Suite 340
                                       Miami, FL 33137-3227
                                       (305) 576-2337
                                       786-363-1108 (facsimile)
                                       rmarshall@aclufl.org
                                       Trial Counsel

                                       Howard S. Marks, Esq.
                                       Florida Bar No: 750085
                                       Graham, Clark, Jones, Builder, Pratt & Marks, P.A
                                       369 N New York Ave – 3rd Floor
                                       P.O. Box 1690
                                       Winter Park, FL 32790-1690
                                       407-647-4455
                                       hmarks@grahambuilder.com
                                       Trial Counsel

                                       Attorneys for Plaintiff




                                               9

								
To top