FLORIDA COUNTY COURT JUDGE FINDS EVICTION STAY CONSTITUTED AN UNCONSTITUTIONAL TAKING

In September 2020, the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) issued an agency order (“the Agency Order” or “Order”) temporarily banning residential evictionsi in the United States to slow the spread of COVID-19.ii Under the Order Courts are required to stay a residential eviction if the tenant files an affidavit attesting to the followingiii:

(I)    the tenant tried to obtain government assistance for rent or housing;

(II)  the tenant did not earn more than $99,000 annually ($198,000 jointly);

(III) the tenant is unable to pay his full rent or mortgage payment due to a “substantial loss of household income”;

(IV)  the tenant is using best efforts to make timely partial payments;

(V)   the tenant would likely become homeless if evicted;

(VI)  the tenant understands he is still obliged to pay back rent or mortgage payments;

(VII) the tenant understands the moratorium ends December 31, 2020.

The CDC provided a form affidavit (“CDC Affidavit”) to facilitate tenant compliance with this requirement.iv

This agency-imposed moratorium took effect on September 4, 2020 and remains in effect at least through December 31, 2020.v 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. In Cowley, Spicliff sent the required statutory notice advising Cowley he needed to pay his rent or move out of Spicliff’s rental property by September 21, 2020.vi Cowley did nothing so Spicliff filed an eviction case on October 8, 2020. Spicliff served Cowley with the eviction complaint which clearly advised Cowley he “may be evicted without…further notice” if he did not file a written answer by October 18th. Again, Cowley did nothing, and the clerk entered a default against Cowley. Thereafter, the Court entered a final judgment of eviction. Pursuant to the final judgment, a writ of possession later issued, and the Escambia County Sheriff’s Office advised Cowley on October 23rd that he had 24 hours to vacate the premises.

After receiving the 24-hour notice, Cowley signed the CDC Affidavit, had it notarized and then emailed it to the Court. Upon receipt of the affidavit, the Court stayed the eviction as required by the Agency Order. Thereafter, 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.” Spicliff elaborated that the Agency Order was “confusing, vague and unenforceable.” 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 Amendmentvii of the United States 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.

The Court found the “simple two-page form [affidavit]…already completed by the government” and unverified by the CDC to be insufficient “process” to protect Spicliff’s rights to its property. Without a hearing wherein the landlord is given an opportunity to contest the content of the affidavit and without just compensation for the taking, the Agency moratorium constitutes an unconstitutional taking even if it is only temporary in nature. Judge Kinsey went on to explain that due to state-imposed moratoriums which preceded the Agency Order “…many landlords have been forced to house tenants without due process or just compensation for over a year or more.” The Court elaborated that “with spikes in COVID-19 cases nationwide, it is not unreasonable to foresee an extension on the CDC Agency restriction on evictions beyond January 1, 2021.”

Focusing on the facts before her, Judge Kinsey explained that by December 31, 2020, when the moratorium is scheduled to end, Cowley “will be more than $7,000.00 in arrears…[on his rent payments].” The Court concluded it was “inconceivable” tenants like Cowley would be able to resume paying monthly rent while also repaying large amounts of past due rent. As a result, the Court explained that landlords were at risk of “losing their properties permanently through foreclosure unless they are able to continue paying their mortgages while they are forced to house tenants without due process or just compensation.”

The Court surmised that the effect of the Agency Order “rises to a level of a regulatory deprivation of substantial economic benefits deserving of protection under the Fifth Amendment of the United States Constitution and Article X of the Florida Constitution.” On this basis the Court granted Spicliff’s motion to lift the Agency imposed stay noting the government’s unconstitutional taking could be “easily avoided” by having the CDC verify the veracity of the form affidavit and once verified, “provide just compensation (the rent) directly to the landlord.” Cowley appealed the order lifting the stay to the First Circuit Court. That appeal and a timely rehearing motion currently remain pending before both courts.

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 given the current state of affairs.

i The Agency Order bans evictions based on non-payment of rent or mortgage payments but does not ban evictions based on other legal grounds, e.g., if the tenant engages in criminal activity on the leased/mortgaged premises, or threatens the health or safety of other residents, or damages the property, etc.  “FAQpgCDCmoratorium” at page 4.

iiCDC order

iii The Agency Order defines such a tenant as a “covered person” and includes additional details as to each of the enumerated requirements. See the Agency Order at page 55293 for a complete definition of “covered person.” “CDC order

v See page 1, ¶1 of HHS/CDC’s Frequently Asked Questions.  “FAQpgCDCmoratorium” at page 1.

vi All subsequent references or quotes to this case are to the same citation. Spicliff, Inc. v. Cowley, Escambia County, Florida Case No. 2020-CC-03778.

vii “The Fourteenth Amendment applies [the Fifth Amendment]…to the states.” Spicliff, Inc., at 2.

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