FLORIDA COUNTY COURT JUDGE FINDS EVICTION | Key Points
In September 2020 the CDC and HHS issued an agency order (“Agency Order”) temporarily banning residential evictions in the United States to slow the spread of COVID-19. Under the Order Courts are required to stay a residential eviction if the tenant files an affidavit attesting to certain facts. The CDC provided a form affidavit (“CDC Affidavit”) to facilitate tenant compliance with this requirement which only requires a signature and notarization. This agency-imposed moratorium on evictions took effect on September 4, 2020 and remains in effect at least through December 31, 2020.
Pursuant to the moratorium, Spicliff, Inc. (“Spicliff”), a landlord in Pensacola, Florida, was prohibited from evicting its tenant, Steven Cowley, despite Cowley’s blatant disregard of the judicial eviction proceedings. Spicliff, Inc. v. Cowley, Escambia County, Florida Case No. 2020-CC-03778. Cowley failed to respond to an eviction complaint and was defaulted. The Court entered an eviction final judgment and the day before Cowley was to be forcibly removed from Spicliff’s property he emailed the CDC Affidavit to the Escambia County Clerk and upon receipt the Court stayed the eviction. Spicliff moved to lift the stay arguing the Agency imposed stay was an unconstitutional deprivation of “property without due process of law and just compensation.” The county court judge agreed.
Judge Patricia A. Kinsey issued a written order on November 24, 2020 wherein she lifted the CDC stay finding it constituted a government taking “without just compensation” and that such activity was prohibited by the Fifth Amendment of the U.S. Constitution. Judge Kinsey, comparing the moratorium on evictions to the forced housing of British soldiers under the Quartering Act of 1774, explained that “neither the federal nor state governments have the authority to force private citizens to ‘house’ persons in their private property without just compensation or due process of law.” Judge Kinsey’s order is well-written and well-reasoned; however, as it originated from an Escambia County court it carries no precedential value for other courts. Stay tuned for developments in the appeal. If it makes it beyond the First Circuit to the First District Court of Appeal, and possibly to the Florida Supreme Court, it could have enormous impact. This issue is sure to become a prominent and reoccurring one given the recent rise in COVID-19 cases and the likely extension of the eviction moratorium.