Filing # 100681363 E-Filed 12/20/2019 04:54:41 PM
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
CLIFFORD C. SMITH, JR. a/k/a CLIFFORD Case No.:
CHARLES SMITH, JR. and CLIFFORD SMITH
Plaintiff,
v.
THE CITY OF MADEIRA BEACH, a Municipal
Government of the State of Florida,
Defendant,
_____________________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
COMES NOW, Plaintiff, CLIFFORD C. SMITH, JR. a/k/a CLIFFORD CHARLES
SMITH, JR. by and through his undersigned counsel, and pursuant to Florida Rules of Civil
Procedure, files this Complaint against THE CITY OF MADEIRA BEACH, a Municipal
Government of the State of Florida, and in support thereof states as follows:
VENUE AND JURISDICTION
1. This is an action for declaratory relief pursuant to Chapter 86, Florida Statutes.
2. Plaintiff, CLIFFORD C. SMITH, JR. a/k/a CLIFFORD CHARLES SMITH, JR.,
(hereinafter “Plaintiff”) is a resident of Pinellas County.
3. Defendant, THE CITY OF MADEIRA BEACH, a Municipal Government of the State of
Florida, (hereinafter “Defendant” or “The City of Madeira Beach” ) is a political
subdivision of the State of Florida organized under the laws of Florida and located in
Pinellas County, Florida.
4. Venue is proper in this Court, as all acts giving rise to this claim occurred in Pinellas
County, Florida.
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5. Plaintiff has satisfied all conditions precedent to bringing this action.
6. The cumulative amount in controversy exceeds $15,000, exclusive of fees and costs.
COMMON ALLEGATIONS
7. Plaintiff is a resident, citizen, and taxpayer within Madeira Beach, Florida.
8. Plaintiff owns real property located at 914 Bay Point Drive, Madeira Beach, Florida
(hereinafter “Subject Property”).
9. On or about July 6, 2018, Plaintiff applied for a building permit to construct a single
family residence located on the Subject Property.
10. The dwelling was constructed pursuant to the Florida Building Code and otherwise met
all requirements relative to the specifications for the structure.
11. Shortly before final completion of the home, Plaintiff was advised by his home builder
that Defendant required him to sign a Non-Conversion Agreement as a condition of
obtaining a Certificate of Occupancy.
12. Without a certificate of occupancy, an owner may not move in, occupy, and use the
improved real property as a dwelling for its intended purpose.
13. Plaintiff, through counsel, negotiated with Defendant for over five months on less
intrusive means to accomplish Defendant’s goal of confirming compliance with
prevailing building codes.
14. The parties were unable to work out any mutually agreeable solution and Defendant
demanded that Plaintiff sign a “right to inspect” Non-Conversion Agreement.
15. Plaintiff initially signed a Non-Conversion Agreement, which included a written notation
“Executed Under Duress” by his signature, but Defendant rejected that Non-
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Smith v. City of Maderia Beach
Complaint and Demand for Jury Trial
Conversion Agreement and required Plaintiff to sign the agreement without a reference to
duress.
16. On October 24, 2019, Plaintiff executed the second Non-Conversion Agreement
conforming to Defendant’s requirements and only then did the Defendant issue a
Certificate of Occupancy permitting Plaintiff use of his residence.
17. A Non-Conversion Agreement is a document signed under oath by the property owner,
and then recorded, permitting entry upon land and perpetual right of inspection to the
property verifying that enclosed areas below the lowest floor are only being used for
parking and storage and not used for human habitation without compliance with required
standards. A copy of the Non-Conversion Agreement (“Agreement”) that Plaintiff was
ultimately required to sign in order to obtain his Certificate of Occupancy is attached as
Exhibit “A.”
18. The terms of this Agreement state, “That this owner and subsequent owner understand
that the City of Madeira Beach has the right to inspect inside the premises at any time to
verify compliance with this agreement.”
19. There is no city, state, or federal requirement incumbent upon municipalities that they
obtain non-conversion agreement from their citizens in connection with the construction
of new dwellings.
20. A municipality’s demand for a non-conversion agreement from a landowner emanates
from the Community Rating System (hereinafter “CRS”), a voluntary incentive program
under the National Flood Insurance Program (herein under “NFIP”) administered by the
Federal Emergency Management Agency (hereinafter “FEMA”).
21. The NFIP is a mandated flood insurance program created in 1968.
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Smith v. City of Maderia Beach
Complaint and Demand for Jury Trial
22. The CRS program provides voluntary incentive savings to homeowners, business owners,
and renters in the purchase of flood insurance at discounted rates.
23. The CRS program also provides cities, towns and municipalities with direct economic
benefit by way of grant opportunities and funding for flood mitigation projects such as:
• Infrastructure protective measures;
• Floodwater storage and diversion;
• Utility protective measures;
• Stormwater management;
• Wetland restoration/creation;
• Aquifer storage and recovery;
• Localized flood control to protect critical facility;
• Floodplain and stream restoration; and
• Water and sanitary sewer system protective measures.
24. On multiple occasions, Defendant represented that the CRS program “means millions of
dollars to the City.”
25. Municipalities are scored on a number of FEMA created factors, one of which is new
construction landowner Non-Conversion Agreement compliance.
26. However, under CRS, a municipality is not required to obtain non-conversion agreements
from all new construction landowners; it is merely one option that provides points on the
scoresheet.
27. In fact, many participating municipalities in the CRS program do not require their
residents of new construction projects execute non-conversion agreements.
28. Such participating municipalities in the CRS program still reap the benefit of reduced
flood insurance premiums for their homeowners and business owners.
29. Such participating municipalities in the CRS program still reap the benefit of grand
opportunities and funding.
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Smith v. City of Maderia Beach
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30. Further still, under CRS, a municipality is not required to hold irrevocable perpetual
“right to inspect” rights relative to all new construction landowners.
31. In fact, Defendant’s neighbor to the south, the City of Treasure Island, does not require
such “right to inspect” language in its Non-Conversion Agreements.
32. Plaintiff offered to execute a Non-Conversion Agreement in a form consistent with the
City of Treasure Island’s Non-Conversion Agreement as it did not contain language
which requires a relinquishment of private property rights.
33. A municipality may participate in the CRS program without Non-Conversion
Agreements entirely.
34. Plaintiff constructed a new residence on this real property in compliance with all
prevailing building codes.
35. The City of Madeira Beach’s enabling ordinance under its Code of Ordinances is 82.1,
Purpose and Intent, and guides when it may undertake legislative action and the
ordinance states as follows:
Sec. 82-1. Purpose and intent.
The primary purpose of the land development regulations is to
implement the city comprehensive plan as adopted pursuant to
Florida Statutes ch. 16, pt. II, and in accordance with F.A.C. ch.
9J-5. The objectives of the land development regulations are to:
(1) Protect, promote and improve the public health, safety,
comfort, order, appearance, convenience, morals and general
welfare of the city.
(2) Protect the character and maintain the stability of residential,
business, recreation and public areas.
(3) Promote the orderly development of residential, business,
recreation and public areas.
(4) Conserve the value of land, buildings, resources and protect
land owners from adverse impacts of adjoining developments.
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Complaint and Demand for Jury Trial
(5) Provide for a more uniformly just land use pattern and tax
assessment base to aid in the development and redevelopment of
the city, to increase traffic safety and ease transportation problems,
and to provide more adequately for vehicular parking, parks,
parkways, recreation, schools, public buildings and facilities.
36. In short, Defendant cannot pass ordinances which are grounded purely in financial
advantage to the city alone.
37. While the CRS program is voluntary in nature, Defendant elected to codify its decision to
condition Non-Conversion Agreements from new construction landowners in its code, as
follows:
Sec. 94.50 Information for development in flood hazard areas.
The site plan or construction documents for any development
subject to the requirements of this chapter shall be drawn to scale
and shall include, as applicable to the proposed development:
(1) Boundary survey signed and sealed by a registered Florida
Professional Surveyor showing improvements and topography,
showing the delineation of flood hazard areas and flood zones
(including, where applicable, the identification of the property
within the Coastal A zone and mapped location of the Coastal A
Zone if it affects only a portion of the property), base flood
elevation(s), minimum lowest floor elevation or horizontal
member, as appropriate, (BFE plus two feet of freeboard), and
ground elevations if deemed by city official as necessary for
review of the proposed development.
(2) Location of the proposed activity and proposed structures, and
locations of existing buildings and structures; in coastal high
hazard areas, new buildings shall be located landward of the reach
of mean high tide.
(3) Location, extent, amount, and proposed final grades of any
filling, grading, or excavation.
(4) Where the placement of fill is proposed, the amount, type, and
source of fill material; compaction specifications; a description of
the intended purpose of the fill areas; and evidence that the
proposed fill areas are the minimum necessary to achieve the
intended purpose.
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(5) Delineation of the coastal construction control line or notation
that the site is seaward of the coastal construction control line, if
applicable.
(6) Extent of any proposed alteration of sand dunes or mangrove
stands provided such alteration is approved by Florida Department
of Environmental Protection.
(7) Signed and county filed non-conversion agreement with stated
right of inspection as a condition of final certificate of occupancy.
The floodplain administrator is authorized to waive the submission
of site plans, construction documents, and other data that are
required by this chapter but that are not required to be prepared by
a registered design professional if it is found that the nature of the
proposed development is such that the review of such submissions
is not necessary to ascertain compliance with this chapter.
38. There is no public health, safety, or welfare basis to support such ordinance (hereinafter
“the Non-Conversion Agreement ordinance”), as the CRS is a voluntary program with
the ends of direct financial remuneration to the Defendant.
39. Defendant’s demand to condition a Certificate of Occupancy, and ultimately use of a
dwelling, upon the execution of a Non-Conversion Agreement, amounts to forced
surrender of property rights, and a violation of due process and privacy rights.
40. The conditions within the Non-Conversion Agreement waive established property rights,
due process rights, and privacy rights for no other reason than economics.
41. There is no public health, safety, or welfare basis to support the loss of such
constitutional rights in order to use one’s real property. The City has conceded this
means millions of dollars to them, thus their hard line position.
42. The Fifth and Fourteenth Amendments to the United States Constitution provide both
substantive and procedural due process protections to all citizens.
43. Police, cities, towns, and local governments are not permitted to search private property
without good cause.
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44. These same due process protections are provided under Section 9 of the Florida
Constitution.
45. Citizens are protected from such searches under each constitution’s search and seizure
prohibitions; under Section 12 of the Florida Constitution and the Fourth Amendment of
the United States Constitution.
46. The Non-Conversion Agreement ordinance fails to afford property owners due process
rights with regard to arbitrary search and seizure style property inspections without good
cause.
47. The Non-Conversion Agreement ordinance is unconstitutional on its face, and as applied
to Plaintiff, because it violates the Fifth and Fourteenth Amendments to the United States
Constitution as it fails to provide both substantive and procedural due process
protections.
48. The Non-Conversion Agreement ordinance is unconstitutional on its face, and as applied
to Plaintiff, because it violates Section 9 of the Florida Constitution as it fails to provide
both substantive and procedural due process protections.
49. The Non-Conversion Agreement ordinance is unconstitutional on its face, and as applied
to Plaintiff, because it violates Section 12 of the Florida Constitution and the Fourth
Amendment of the United States Constitution relative to such unwarranted searches.
50. Defendant’s demand to condition a Certificate of Occupancy, and ultimately use of a
dwelling, upon the execution of a Non-Conversion Agreement, amounts to a taking
property rights.
51. Defendant is making landowners of newly constructed homes in flood zones give up
these rights in order to occupy their homes.
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Smith v. City of Maderia Beach
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COUNT I-DECLARATORY JUDGMENT
Non-Conversion Ordinance
52. Plaintiff adopts and reincorporates the allegations to paragraphs 1-51, as if fully set forth
herein.
53. This is an action for declaratory relief against Defendant.
54. There is a bonafide, actual, present, and practical need for this declaration.
55. This declaration deals with a present, ascertained or ascertainable state of facts, or present
controversy as to a state of facts.
56. There is a privilege or right of Plaintiff that is dependent upon the facts or law applicable
to the facts.
57. There is an actual, present, adverse, and antagonistic interest in the subject matter, either
in fact or law.
58. This antagonistic and adverse interest is before the Court by proper process.
59. The relief sought is not merely the giving of legal advice by the Court or the answer to
questions propounded from curiosity. See State Farm Mut. Auto. Ins. Co. v. Marshall,
618 So. 2d 1377, 1380 (Fla. 5th DCA 1993), disapproved on other grounds, 630 So. 2d
179, 182 (Fla. 1994).
60. Plaintiff is in doubt as to the constitutionality of the Non-Conversion Ordinance based
upon his rights under the Unites States Constitution and Florida Constitution.
61. Defendant has no right to enact the Non-Conversion ordinance because its sole basis is
financial advantage to the Defendant.
62. Plaintiff is being denied private property rights in the enforcement of the Non-Conversion
ordinance.
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Smith v. City of Maderia Beach
Complaint and Demand for Jury Trial
63. Plaintiff is in doubt as to his rights under the United States Constitution and the Florida
Constitution relative to the Non-Conversion ordinance.
64. The declaration sought by Plaintiff deals with a present, ascertained or ascertainable state
of facts, or present controversy as to a state of facts, to wit the Non-Conversion
ordinance.
65. The declaration involves the rights of Plaintiff and is dependent upon the facts herein as
applied to the above statutes.
66. Plaintiff has a present interest in the subject matter.
67. Defendant’s antagonistic and adverse interests are all before the Court.
68. The relief sought is not merely giving of legal advice by the Court or the answer to
questions propounded from curiosity.
69. There is a substantial likelihood that Plaintiff will prevail on the merits of this action.
70. As a proximate result of Defendant’s actions, Plaintiff continues to suffer irreparable
damages for which monetary damages are inadequate.
71. Plaintiff is wrongfully being denied private property rights which constitute irreparable
harm for the purpose of declaratory relief.
WHEREFORE, Plaintiff demands judgment in his favor, a judgment pursuant to Chapter
86, Florida Statutes, declaring the Non-Conversion ordinance unconstitutional and such other
and further relief as this Court deems equitable, proper, and just.
COUNT II-DECLARATORY JUDGMENT
Non-Conversion Agreement
72. Plaintiff adopts and reincorporates the allegations to paragraphs 1-51, as if fully set forth
herein.
73. This is an action for declaratory relief against Defendant.
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Smith v. City of Maderia Beach
Complaint and Demand for Jury Trial
74. There is a bonafide, actual, present, and practical need for this declaration.
75. This declaration deals with a present, ascertained or ascertainable state of facts, or present
controversy as to a state of facts.
76. There is a privilege or right of Plaintiff that is dependent upon the facts or law applicable
to the facts.
77. There is an actual, present, adverse, and antagonistic interest in the subject matter, either
in fact or law.
78. This antagonistic and adverse interest is before the Court by proper process.
79. The relief sought is not merely the giving of legal advice by the Court or the answer to
questions propounded from curiosity. See State Farm Mut. Auto. Ins. Co. v. Marshall,
618 So. 2d 1377, 1380 (Fla. 5th DCA 1993), disapproved on other grounds, 630 So. 2d
179, 182 (Fla. 1994).
80. Plaintiff is in doubt as to the constitutionality of the Non-Conversion Agreement based
upon his rights under the Unites States Constitution and Florida Constitution.
81. Defendant has no right to compel Plaintiff to sign and record a Non-Conversion
Agreement as a condition of issuance of a certificate of occupancy because its sole basis
for the requirement is financial advantage to the Defendant.
82. Plaintiff is being denied private property rights by the requirement of a signed and
recorded Non-Conversion Agreement as a condition of issuance of a certificate of
occupancy.
83. Plaintiff is in doubt as to his rights under the United States Constitution and the Florida
Constitution relative to the requirement of signing and recording a Non-Conversion
Agreement as a condition of issuance of a certificate of occupancy.
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Smith v. City of Maderia Beach
Complaint and Demand for Jury Trial
84. The declaration sought by Plaintiff deals with a present, ascertained or ascertainable state
of facts, or present controversy as to a state of facts, to wit the Non-Conversion
Agreement.
85. The declaration involves the rights of Plaintiff and is dependent upon the facts herein as
applied to the above statutes.
86. Plaintiff has a present interest in the subject matter.
87. Defendant’s antagonistic and adverse interests are all before the Court.
88. The relief sought is not merely giving of legal advice by the Court or the answer to
questions propounded from curiosity.
89. There is a substantial likelihood that Plaintiff will prevail on the merits of this action.
90. As a proximate result of Defendant’s actions, Plaintiff continues to suffer irreparable
damages for which monetary damages are inadequate.
91. Plaintiff is wrongfully being denied private property rights which constitute irreparable
harm for the purpose of declaratory relief.
WHEREFORE, Plaintiff demands judgment in his favor, a judgment pursuant to Chapter
86, Florida Statutes, declaring the Non-Conversion Agreement unconstitutional and such other
and further relief as this Court deems equitable, proper, and just.
COUNT III-DECLARATORY JUDGMENT
Section 70.001, Florida Statutes
92. Plaintiff adopts and reincorporates the allegations to paragraphs 1-51, as if fully set forth
herein.
93. This is an action for declaratory relief against Defendant.
94. There is a bonafide, actual, present, and practical need for this declaration.
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Complaint and Demand for Jury Trial
95. This declaration deals with a present, ascertained or ascertainable state of facts, or present
controversy as to a state of facts.
96. There is a privilege or right of Plaintiff that is dependent upon the facts or law applicable
to the facts.
97. There is an actual, present, adverse, and antagonistic interest in the subject matter, either
in fact or law.
98. This antagonistic and adverse interest is before the Court by proper process.
99. The relief sought is not merely the giving of legal advice by the Court or the answer to
questions propounded from curiosity. See State Farm Mut. Auto. Ins. Co. v. Marshall,
618 So. 2d 1377, 1380 (Fla. 5th DCA 1993), disapproved on other grounds, 630 So. 2d
179, 182 (Fla. 1994).
100. Plaintiff is in doubt if the acts of Defendant subject it to Section 70.001, Florida Statutes,
relative to the Non-Conversion Agreement.
101. Defendant has no right to compel a Non-Conversion Agreement because the sole basis
for the requirement is financial advantage to the Defendant.
102. Plaintiff is being denied private property rights by the requirement of signing and
recording the Non-Conversion Agreement as a condition of issuance of a certificate of
occupancy.
103. Plaintiff is in doubt as to his rights under Section 70.001, Florida Statutes.
104. The declaration sought by Plaintiff deals with a present, ascertained or ascertainable state
of facts, or present controversy as to a state of facts, to wit the Non-Conversion
Agreement as applied to Section 70.001, Florida Statutes.
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Smith v. City of Maderia Beach
Complaint and Demand for Jury Trial
105. The declaration involves the rights of Plaintiff and is dependent upon the facts herein as
applied to the above statutes.
106. Plaintiff has a present interest in the subject matter.
107. Defendant’s antagonistic and adverse interests are all before the Court.
108. The relief sought is not merely giving of legal advice by the Court or the answer to
questions propounded from curiosity.
109. There is a substantial likelihood that Plaintiff will prevail on the merits of this action.
110. As a proximate result of Defendant’s actions, Plaintiff continues to suffer irreparable
damages for which monetary damages are inadequate.
111. Plaintiff is wrongfully being denied private property rights which constitute irreparable
harm for the purpose of declaratory relief.
WHEREFORE, Plaintiff demands judgment in his favor, a judgment pursuant to Chapter
86, Florida Statutes, declaring the Non-Conversion Agreement unconstitutional and such other
and further relief as this Court deems equitable, proper, and just.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury on all counts so triable.
/s/ Charles R. Gallagher III
CHARLES R. GALLAGHER III, ESQ.
Florida Bar No. 0510041
E-Mail: crg@attorneyoffices.org
Gallagher & Associates Law Firm, P.A.
5720 Central Avenue
St. Petersburg, FL 33707
Telephone: (727) 344-5297
Primary E-Mail: service@attorneyoffices.org
Secondary E-Mail: fax@attorneyoffices.org
Counsel for Plaintiff Clifford Smith
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Smith v. City of Maderia Beach
Complaint and Demand for Jury Trial
