It’s not sunshine and rainbows at city hall.
The ACLU of Florida on Sept. 9 filed a second lawsuit against the city of Key West, alleging that city officials retaliated against two local residents who filed the first lawsuit pertaining to rainbow-painted fence pickets in Old Town.
Old Town residents Nicole Sohn and Linda Bagley-Sohn sued the city in May with the help of the ACLU of Florida. That lawsuit accuses the city of First Amendment violations by selectively enforcing its historic guidelines that regulate fence colors in Old Town. The suit claims that the couple’s rainbow-painted fence posts were targeted by code enforcement, while other fences in Old Town that are painted non-regulation colors were not subject to any enforcement measures.
The first lawsuit contains photos showing examples of other fences painted in non-compliant colors at properties that did not receive notices of code violations.
The city then turned those examples into code complaints and claimed the complaints had been filed by Sohn and Bagley-Sohn, whose attorneys sent a cease-and-desist letter to the city, demanding that officials stop claiming the residents had filed 19 code complaints about painted fences in Old Town.
“The plaintiffs demanded the city stop misrepresenting them as having submitted code violation complaints. Rather than accede to the truth, the city scoffed at plaintiffs’ demand and responded that it would continue falsely identifying plaintiffs as the complainants unless and until they withdraw the factual allegations” contained in the first lawsuit, the new suit states.
“The plaintiffs exercised their First Amendment right to sue the City of Key West for selectively enforcing its municipal code against them in a discriminatory manner,” the new lawsuit states. “In response, the city took the … evidence plaintiffs presented in that lawsuit, opened code enforcement cases against those properties, and falsely informed plaintiffs’ neighbors that the cases were opened because plaintiffs submitted code violation complaints to the city.
“In doing so, the city exposed plaintiffs to reputational harm, instigated friction with their neighbors, and sent a chilling message to all who might challenge the city’s selective enforcement, announcing: if you sue us, we will punish your community and falsely identify you as a code-complaining snitch. The First Amendment forbids the city from exacting such a price for seeking redress in court.”
Key West “attempted to force plaintiffs to choose between presenting evidence needed to support their pending lawsuit and protecting their relationships and reputation in their community,” the suit says.
“Plaintiffs reject the city’s unlawful ultimatum. They once again bring suit to vindicate their rights under the First Amendment,” the new suit claims.
“The city’s conduct has already prompted at least one neighbor to confront plaintiffs and creates an ongoing risk of harm to plaintiffs’ relationships and reputation within their neighborhood. Many of the apparent violations plaintiffs presented as comparator evidence in the first suit have existed for years without issue. Key West residents value creative expression, including through painting their fences, gates and houses. By falsely identifying plaintiffs as code violation complainants, the city exposed them to anger, hostility and damaged relationships with members of their community,” the new lawsuit states.
“The city’s conduct also burdens plaintiffs’ ability to identify and present additional comparator evidence as the first suit proceeds.
The new lawsuit demands a jury trial and “compensatory damages in an amount to be determined at trial.”
City officials do not comment on pending litigation, but assistant city attorney Kendal Harden announced at the Sept. 3 city commission meeting that she would hold a closed session with the commission later this month to discuss the ACLU lawsuit. That was announced before the second lawsuit was filed on Sept. 9.
Mayor Sam Kaufman also declined to comment on pending litigation, but said at his first press conference, held on Sept. 9, that the city’s Historic Architectural Review Committee is pursuing changes to its guidelines that would allow for limited painting of fenceposts in the historic district.
