An ongoing legal case over painted rainbow fence posts in Key West’s historic district took an odd turn this week, when city officials sent notices of code violations to several Old Town property owners regarding painted fence posts in the historic district that don’t comply with the historic guidelines. The code violations were based on complaints the city claimed had been filed by residents Nicole Sohn and Linda Bagley-Sohn, who live on Fleming Street.
Here’s where things get weird.
Nicole and Linda have never filed any code complaints against anyone about fences or anything else. The couple was astonished to learn this week that complaints against multiple Old Town property owners had been filed in their names, using their address on Fleming Street, and making their neighbors think they had complained about them.
In May, the American Civil Liberties Union (ACLU) of Florida sued the city on behalf of the Bagley-Sohns, who were threatened with fines if they didn’t remove the rainbow-colored fence pickets they had painted on 12 slats of wood at their home in Old Town, six on the side fence and six on the front.
The lawsuit alleges the city violated the First Amendment rights of the couple and selectively enforced its code against their rainbow-painted fence display by failing to enforce other violations of the city’s historic guidelines in Old Town.
The lawsuit includes small photos of other properties in Old Town with painted fence posts that had not been cited by code enforcement and threatened with fines over their fences. The legal complaint contained examples of what the ACLU says is selective prosecution by the city. It did not contain any complaints that the plaintiffs filed against those property owners.
“We were shocked and saddened to learn that the City of Key West has treated us as the complainants in numerous code enforcement matters involving properties we mention in our pending lawsuit,” the couple told the Keys Weekly. “We discussed examples of colorful fences and walls to illustrate our legal claim that the city selectively enforced the (historic) guidelines. We did not file complaints with code enforcement, authorize anyone to file complaints on our behalf or ask the city to take enforcement action against our neighbors. The city knows the difference.
“We believe deliberately treating evidence from our court filings as code enforcement complaints in our names is an attempt to pit our neighbors against us and divert attention from the issues at the heart of our case: equal treatment under the law and celebrating our vibrant community. We love the roosters, the pineapples and the hearts that adorn our neighbors’ fences. We love the color, character and individuality that make Key West what it is. We simply want our colors alongside them.”
The ACLU on Aug. 18 sent a cease-and desist letter to the city, stating in part, “…nothing in statutory provisions authorizes the city to convert evidence presented by … litigants into complaints purportedly made by those litigants, and then identify those litigants as the persons who reported the violations. The conduct described above therefore raises serious concerns under (state law).”
The letter demands that the city identify all complaints attributed to the couple, notify property owners and correct the record; identify city personnel who authorized the fabricated complaints and cease further use of the couple’s federal lawsuit as purported complaints submitted by the plaintiffs.
The Keys Weekly contacted the city for comment about the code complaints and received the following statement from chief assistant city attorney Kendal Harden: “It is this office’s policy not to comment on matters that are the subject of ongoing litigation. We’re unable to provide further detail at this time but appreciate the opportunity to respond.”
