UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RAYMOND HOUSTON )
v. ) Case No.
GAY N. WILLIAMS, in her official )
capacity as Executive Director of the )
Brevard County Weatherization Program; )
and BREVARD COUNTY, )
COMPLAINT – INJUNCTIVE RELIEF SOUGHT
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.
2. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for violation of his
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.
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.
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
8. The sole criteria for qualification for such assistance has been set by the
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
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
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
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
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
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.
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
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
6. the contract between Brevard County and the Florida Department of
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
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.
Randall C. Marshall, Esq.
Florida Bar No: 181765
ACLU FOUND ATION OF FLORIDA , INC.
4500 Biscayne Boulevard, Suite 340
Miami, FL 33137-3227
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
Attorneys for Plaintiff