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UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

CASE NO.:

ANDREW BIVIANO,

Plaintiff,

vs.

CITY OF LIGHTHOUSE POINT, FLORIDA

Defendant.

_______________________________________/

COMES NOW, Plaintiff, ANDREW BIVIANO (“Biviano”), by and through undersigned 

counsel and pursuant to the Federal Rules of Civil Procedure, hereby files this Complaint against 

Defendant, CITY OF LIGHTHOUSE POINT, FLORIDA (“the City”), and states as follows:

JURISDICTION AND VENUE

1. This is an action for deprivation under color of law rights guaranteed by the United 

States Constitution pursuant to 42 U.S.C. § 1983. 

2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper under 28 

U.S.C. § 1391(b). The parties reside in this judicial district, and the events giving rise to the claims 

asserted herein occurred within this judicial district. 

THE PARTIES

3. Biviano is the owner of the property located at 2830 NE 22nd Ave, Lighthouse 

Point, Florida 33064 (the “Property”). 

4. Defendant, City of Lighthouse Pointe (the "City"), Florida is a political subdivision 

of the State of Florida. 

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INTRODUCTION

5. Plaintiff, after being denied a writ of certiorari in the 4th District court of Appeals, 

got into compliance and was able to close his permit by covering the swale area of this driveway 

in sod. 

6. Plaintiff got into compliance about twenty days after the writ was denied, by August 

20, 2021.

7. On December 1, 2021, an order from the Special Magistrate reduced the fine for 

the expired permit to $7,500. 

8. The Plaintiff then appealed to the City Commission pursuant to Sec. 2-260(f) of the 

Code of Ordinances of the City of Lighthouse Point for review of the Final Order of the City of 

Lighthouse Point Special Magistrate; Plaintiff sought to reduce the fine to $0 based on the 

representations of the Magistrate on the record at status hearings that diligent prosecution of the

appeal would be looked upon favorably. Lighthouse Point, Florida, Municipal Code § 2-260.

9. On December 14, 2021, the city commission affirmed the fine of $7,500. During 

the meeting, the mayor of the City at the time, Glenn Troast, stated that the fine of $7,500 is 

reasonable from an administrative perspective and said it is also fair in light of comments made by 

Plaintiff’s attorney in the appeals. 

GENERAL ALLEGATIONS

10. In September 2018, Plaintiff made the first application for a permit to install a new 

semi-circular concrete driveway. 

11. Plaintiff wanted to change the driveway from black asphalt to concrete.

12. The swale area of the property was covered in asphalt and had been this way since 

the Plaintiff’s grandfather purchased the home more than thirty years ago.

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13. The initial permit was rejected by the City. The City required any swale to be 

covered in sod if the driveway was being redone.

14. Plaintiff submitted a new application that removed the new driveway portion over 

the swale area. Plaintiff did not want to remove the asphalt and thought this new plan would allow 

it to stay as is.

15. The City approved the application and plans for the second permit application and 

issued the permit on October 3, 2018.

16. The driveway construction was promptly completed, and a final driveway 

inspection was approved by the building inspector on November 21, 2018.

17. However, on November 26, 2018, a Zoning inspector marked the driveway as out 

of compliance. The comments stated the driveway measurements were smaller than the 

measurements shown in the approved plans. There was no mention of grass in the right of way in 

the comments.

18. Plaintiff submitted a revised permit application to change the driveway 

measurements to match the as-built driveway.

19. On the revised plan, at some point someone penciled in “Grass” over the swale area 

on the plan. This change was not clouded, dated, or given a numbered “change symbol,” and it 

was not listed in the permit notes or on an “errata sheet.”

20. On December 12, 2018, the City approved the permit modification.

21. On February 19, 2019, the Zoning Division failed the final inspection again, and 

stated for the first time that there needed to be sod in the City right of way (“ROW”). City Planner 

Timothy Haynes informed Plaintiff by email that the City’s reason for requiring the sod in the 

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swale was Sec. 14-1 of the City’s Code of Ordinances (“Code”). This was the first time Plaintiff 

had heard of this requirement.

22. Section 14-1 stated the opposite, that the driveway could remain in the swale, so 

the Plaintiff hired counsel in early 2019 to try to resolve the situation.

23. The Building Official sent a notice to the Plaintiff advising that the permit would 

expire on November 20, 2019, unless Plaintiff complied and put in the sod in the swale area. On 

November 20, 2019, the Building Official deemed the permit expired.

24. On February 5, 2020, a hearing in front of the City’s Special Magistrate found 

Plaintiff was not in compliance with the Code and that Plaintiff must be in compliance by April 6, 

2020, or be subject to a $100 per day fine until the swale was in compliance.

25. Plaintiff then appealed the Special Magistrate’s order to the 17th Circuit Court on 

February 21, 2020.

26. On March 16, 2020, the Plaintiff filed a motion for extension and/or stay of the 

April 6th deadline to the Special Magistrate. Multiple meetings with the Special Magistrate were 

cancelled due to COVID-19. On September 2, 2020, the Magistrate hearing was held, and the 

Special Magistrate denied the motion for extension and/or stay.

27. On April 15, 2021, the 17th Circuit Court affirmed the Special Magistrate’s order.

28. On July 19, 2021, Plaintiff then appealed to the 4th District Court of Appeal. 

29. The 4th District Court of Appeal denied the writ of certiorari on July 27, 2021.

30. On August 19, 2021, the swale was replaced. A day later, on August 20, 2021, the 

permit was closed.

31. The Special Magistrate, on December 1, 2021, ordered the fine amount to be $7,500

without supporting findings.

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32. No explanation was given by the Special Magistrate other than listing the factors to 

be considered in § 162.09 Fla. Stat. (2004), which do not apply to reduction requests. 

33. Sec. 2-260(f) of the City’s Code of Ordinances applies to reduction requests and

gives the magistrate unbridled discretion to decide without any objective factors given.

34. Plaintiff had reason to believe based on statements of the magistrate that the fine 

would be zero. At previous hearings before and during the appeal, the magistrate stated that 

diligent prosecution of the appeal would be looked upon “favorably” when considering fines.

35. The ordinance, sec. 2-260(f), gives the magistrate unbridled discretion to arrive at 

any fine amount without guidance of objective criteria. The magistrate arrived at a decision of 

$7,500.

36. The Plaintiff then appealed to the City Commission pursuant to Sec. 2-260(f) of the 

Code of Ordinances of the City for review of the Special Magistrate’s order. Plaintiff sought to 

reduce the fine from the order to $0 instead of $7,500, since the only reasons fines were enforced 

was due to the pendency of the appeal and waiting for a ruling from the Circuit Court.

37. On December 14, 2021, the city commission affirmed the fine of $7,500. During 

the meeting, the mayor of the City at the time, Glenn Troast, stated that the fine of $7,500 is 

reasonable and said it is also fair in light of comments made by Plaintiff’s attorney in Initial 

Appellate Brief. 

38. Mayor Troast specifically pointed to a sentence from Plaintiff’s Initial Appellate 

Brief, which he interpreted as suggesting that someone from the city altered documents. Mayor 

Troast asserted the city did not alter documents but added no evidence to support this.

39. The Plaintiff did not make such a statement in the brief.

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COUNT I

FIRST AMENDMENT RETALIATION

40. The allegations in paragraphs 1 through 39 are incorporated herein by reference.

41. This is an as-applied claim for violation of 42 U.S.C. § 1983, resulting from the 

City’s violation of Plaintiff’s right to free speech protected by the First Amendment of the United 

States Constitution, applied to the states through the Fourteenth Amendment.

42. The City is a “person” under 42 U.S.C. § 1983.

43. Plaintiff, by filing an appeal and stating in his brief that someone else other than 

Plaintiff altered his permit application, was engaging in free speech. Filing and making claims in 

a lawsuit or appellate brief is free speech and thus protected. Spalding v. City of Chicago, 186 F. 

Supp. 3d 884, 906 (Ill. N. Dist. Ct. 2016).

44. § 2-260(f) of the City of Lighthouse Point Code allows the Special Magistrate to 

reduce fines upon considering “the written request, the statements of the applicant or an authorized 

agent for the applicant, the recommendation of city administration, and any other information 

deemed relevant, and render a decision on the application.” [emphasis added]. There are no 

objective criteria guiding the eventual decision on the fine amount imposed.

45. The above ordinance was passed by the City Commission, which is the final policy 

maker for the City.

46. The above ordinance was invoked by the magistrate in its decision to decide on the 

fine amount.

47. The only reason any fines accrued was due to seeking appellate remedies to 

challenge the City magistrate’s decision to find the violation. There was a good faith basis to 

challenge the decision based on the sec. 14-1 of the City Code, which specifically contradicted the 

magistrate’s decision. 

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48. After appealing in good faith, Plaintiff was penalized by the City only for seeking 

appellate relief in good faith. 

49. The magistrate decided to impose a fine of $7,500.00, although the violation was 

not a public safety concern and only existed during the pendency of a good faith appeal.

50. Plaintiff then appealed the fine amount to the City Commission.

51. During the City Commission meeting, Mayor Troast stated that Plaintiff’s attorney

acted in a way that was “less than even handed” in the appeal, referring to statements made in the 

appeal, and that a fine of $7,500 was “very generous.”

52. Plaintiff paid the $7,500 involuntarily “under protest”, which payment the City 

accepted.

53. A person of ordinary firmness would be deterred from filing an appeal in the courts 

if a city commission can deny relief for any reason including on the basis of retaliating for speech

exercised against the City in the appellate brief.

54. Plaintiff’s statements, through counsel, made in a publicly filed appellate brief is 

protected speech.

55. There is a casual connection between Plaintiff’s free speech and the City’s adverse 

action motivated at least in part by Plaintiff’s protected conduct, evidenced by the words of the 

mayor.

56. The City Commission and the Special Magistrate are each final policymakers in 

that they can reach a final decision on the matter of fines pursuant to the ordinance, sec. 2-260.

57. The adverse decisions of the Special Magistrate, which was affirmed by the City 

Commission, was made, at least in part, in retaliation forstatements Plaintiff made through counsel 

in his appeal.

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58. Plaintiff sustained damages caused by the City’s speech retaliation, including but 

not limited to, economic damages of $7,500 that was required to be paid by the City, and 

noneconomic damages including emotional distress, inconvenience, and embarrassment.

WHEREFORE, Plaintiff demands judgment for the following:

A. Declaratory judgment finding that the City violated Plaintiff’s First Amendment

right to free speech without fear of retaliation; and

B. Award of economic and noneconomic damages to Plaintiff; 

C. Award Attorney’s fees and costs pursuant to 42 U.S.C. § 1988 and related statutes; 

and 

D. Any other relief deemed just and proper by the Court.

COUNT II

DUE PROCESS VIOLATION

59. The allegations in paragraphs 1 through 39 are incorporated herein by reference.

60. This is an as-applied claim for violation of 42 U.S.C. § 1983 for violation of the 

Fourteenth Amendment’s due process clause.

61. § 2-260(f) of the City of Lighthouse Point Code allows the Special Magistrate to 

reduce fines upon application. The Special Magistrate “shall consider the written request, the 

statements of the applicant or an authorized agent for the applicant, the recommendation of city 

administration, and any other information deemed relevant, and render a decision on the 

application.” [emphasis added]

62. An ordinance may be unconstitutional “if it authorizes or even encourages arbitrary 

and discriminatory enforcement.” Set Enters. v. City of Hallandale Beach, No. 09-61405-CIVZLOCH/ROSENBAUM, 2010 U.S. Dist. LEXIS 154575, at *96 (S.D. Fla. June 22, 2010) (citing 

Hill v. Colorado, 530 U.S. 703, 732 (2000)).

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63. A legislative enactment “must give fair notice of conduct that is forbidden or 

required.... This requirement of clarity in regulation is essential to the protections provided by the 

Due Process Clause of the Fourteenth Amendment.” FCC v. Fox TV Stations, Inc., 567 U.S. 239 

(2012). This “requires the invalidation of laws that are impermissibly vague.” Id.

64. A person governed by the enactment “should know what is required of them so they 

may act accordingly.” Id.

65. The vagueness of the ordinance “delegates basic policy matters” to the Special 

Magistrate and allows for him to have unbridled discretion as to setting the fine amount. Id.; See 

Friends of the Great Southern, Inc. v. City of Hollywood, 964 So. 2d 827, 830 (Fla. 4th DCA 

2007).

66. The Special Magistrate does not provide an explanation in his decision other than 

referring to the factors in § 162.09(1) as his basis for reducing the fine. Those factors do not apply 

to fine reductions, and the City has adopted its own alternative code enforcement system as 

permitted by Ch. 162, Florida Statutes.

67. The failure to provide objective criteria to guide the magistrate in his decision to 

impose a reduced fine amount is fatal to the City’s fine imposition against Plaintiff.

68. The fines imposed against Plaintiff are constitutionally invalid because of the 

failure to provide objective criteria for fine reductions in § 2-260(f).

69. Upon making the decision to bring the appeal, Plaintiff did not have notice of what 

eventual fine amount he might be required to pay.

70. Based on the magistrate’s statements in status hearings during the appeal, it was 

conveyed that diligence prosecution of the appeal would be looked upon favorably in setting the 

fine upon conclusion of the appeal.

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71. When Plaintiff lost the appeal, he was shocked to find out that the magistrate would 

impose fines at all, which only accrued because Plaintiff sought appellate remedies of a suspect 

decision that arguably violated the City’s code.

72. After appealing in good faith, Plaintiff was penalized by the City only for seeking 

appellate relief in good faith.

73. Plaintiff’s constitutional right to due process of law was violated because the vague

ordinance § 2-260(f) gave unbridled discretion to the magistrate to set the fines based on anything 

deemed “relevant”.

74. The magistrate and the City Commission are both final policy makers for the City, 

pursuant to Sec. 2-260. 

75. The violation of Plaintiff’s constitutional right to due process of law was the 

proximate cause of the damages sustained by Plaintiff, including economic damages in the amount 

of $7,500.00, and noneconomic damages for emotional discretion, mental anguish, 

embarrassment, inconvenience, and the like.

WHEREFORE, Plaintiff demands judgment for the following:

A. Declaratory judgment finding that the City violated Plaintiff’s Fourteenth 

Amendment right to due process of law based on § 2-260(f), which is void for 

vagueness as applied to Plaintiff, and that the City may not enforce any fines against 

Plaintiff under a regulatory scheme that permits citizens to be ultimately subject to 

unbridled discretion of the appointed magistrate; and

B. Award of economic and noneconomic damages to Plaintiff;

C. Award Attorney’s fees and costs pursuant to 42 U.S.C. § 1988 and related statutes; 

and

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D. Any other relief deemed just and proper by the Court.

DEMAND FOR JURY TRIAL

Plaintiff hereby demands trial by jury of all issues so triable.

Dated: 9/13/22 Respectfully submitted,

/s/ Rainier Regueiro_________

Rainier Regueiro, Esq.

Fla. Bar No.: 115578

GALLARDO LAW OFFICE, P.A.

8492 SW 8th Street

Miami, Florida 33144

Telephone: (305) 261-7000

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