Storied activist and two-time Supreme Court winner moves on to new controversy

Fane Lozman insists he didn’t set out to become a constitutional gadfly or a perpetual pain in the backside of elected officials. He wasn’t looking to be a First Amendment hero. When he came back to his native South Florida, all he wanted, he says, was to live on the water.

But Lozman, who relishes a fight, no matter how long, complex and vituperative it may turn out to be, didn’t settle down for a quiet life in the sunshine. Officials in North Bay Village, the town in Dade County he’d moved to, had him arrested twice for calling them corrupt.

Some were, in fact, corrupt: the mayor and three county commissioners lost their seats thanks to Lozman’s dogged investigations. Further up the coast in Riviera Beach he tangled with that city’s council over plans for the town marina and his right to speak at public meetings.

Lozman’s been battling government ever since. He’s currently embroiled in a dispute over whether he can build houses on submerged lands he owns in the most ecologically sensitive area of Lake Worth Lagoon. Residents and environmentalists say the project could damage critical manatee and juvenile green sea turtle habitat. 

He’s best known, however, for more seemingly benevolent causes. Lozman has won two cases in the United States Supreme Court, one of them a landmark affirmation of a citizen’s right to free speech without fear of retaliation by the government. 

“Many people, mostly government officials, tried to dismiss him as just a gadfly, not understanding the important role gadflies play in a democratic society,” says Barbara Petersen, executive director of the Florida Center for Government Accountability (which publishes the Florida Trident).

Sunshine Gadfly

A University of Miami mathematics graduate, Lozman became what he calls a “zombie day-trader” in Chicago. In 1997 he patented a stock quote display system called Scanshift, based on the cockpit displays in the planes he flew as an aviator in the U.S. Marines.

He moved home  to Florida in 2003, parking his “floating home,” a 60 foot-long plywood two-story structure with French doors, a bedroom, living room, kitchen and office, at a marina in North Bay Village, planning, he said, “to enjoy a simple lifestyle.”

Nevertheless, things soon got complicated. He fought the municipality over (among other things) erecting a ramp from a disabled veteran’s boat to the marina parking lot.

In 2006, he had his floating home towed to Riviera Beach.  The very day he docked, he learned of the city’s $2.4 billion plan to “develop” the public marina, displacing a couple of thousand people, including him. “I went to buy some sea shells,” Lozman says, “and the lady who owned the store was crying. She said she’d have to sell it or the city would take her property through eminent domain.”

Lozman discovered that Riviera Beach officials had held a secret meeting to approve the $2.4 billion marina plan, one day before then-Gov. Jeb Bush signed a bill outlawing the use of eminent domain for private profit. Lozman cried foul: the city council had not given the public notice of the meeting as required by state open government laws.

He filed a lawsuit charging Riviera Beach with violating Florida’s Sunshine Law. Furious, the city council held another secret meeting about how to, as they said, “intimidate” Lozman. They began the process of evicting him, claiming he owed back rent; he says the city received his check on time, but held it on purpose. They cut off his electricity. The police harassed him, even demanding he muzzle Lady, his rather petite Dachshund.

Acting as his own lawyer, Lozman won his eviction trial, with the jury finding that Riviera Beach retaliated against him unlawfully. The city tried again, suing Lozman under admiralty law when he would not sign an agreement to move his floating home in an emergency as required by city ordinance.

This time Lozman lost in court, with the judge dismissing Lozman’s argument that though it floats, his home was not a boat. His home was impounded and sold at auction. The city of Riviera Beach bought it and destroyed it.

Lozman refused to let go, appealing the seizure of his floating home up the legal food chain and eventually reaching the US Supreme Court in 2012. The question the justices faced was how to define whatever it was that Fane Lozman lived on. Was it a craft intended to convey people or goods? Riviera Beach argued it was. The justices weren’t sure: Is everything that floats a boat?

In the end, Lozman prevailed 7-2, with Justice Stephen Breyer having a little fun in his majority opinion, writing: “To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not ‘vessels,’ even if they are ‘artificial contrivances’ capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so.”

Return to DC

Chief Justice John Roberts said later that Lozman v. City of Riviera Beach was his favorite case that term. Roberts would have another opportunity to hear from Lozman in 2018, a case that would win him the Friend of the First Amendment Award from Florida’s First Amendment Foundation, which at the time was headed by Petersen.

Back in 2006, Lozman had stood up during the public comment period at a Riviera Beach City Council meeting, determined to talk about corrupt officials. He’d barely got started before the council chair ordered the police to “carry him out.” He was hand-cuffed, taken to a jail cell, and charged with trespass and disorderly conduct.

The charges were later dialed down, and the state attorney declined to prosecute.  Lozman, however, launched a First Amendment lawsuit, claiming that Riviera Beach unconstitutionally tried to punish him for refusing to shut up.

Lozman sued the city again, lost again, and appealed to the 11^th circuit, which required him to show that the city was motivated by animus against him, that his speech was covered under the First Amendment, and that arresting a member of the public trying to speak at a public meeting might discourage a citizen from addressing their elected officials.

However, if the government could demonstrate a reasonable belief that a law was broken,  Lozman’s claim of retaliation couldn’t proceed. Seems the government could do just that. They dug up a Florida statute (870.01 should you care to look it up) which says if you “willfully interrupt or disturb any school or any assembly of people met for the worship of God or for any lawful purpose,” you’re guilty of a second degree misdemeanor. Lozman lost. He appealed and again his case made it to the Supreme Court.

As Lozman likes to point out, “the court takes only eight out of a thousand cases. I got two in six years. And I won both.”

You’d think two triumphs at the highest court in the land might inspire Lozman to give his litigation muscle a rest. On the contrary: he’s currently in the thick of several suits against Riviera Beach, one involving submerged land near MacArthur State Park.

It’s true that 100 years ago state law allowed and even encouraged submerged lands to be filled in, said Lisa Interlandi of the Everglades Law Center. But she says those laws have changed with the times and no longer permit such an intrusion on environmentally sensitive areas.

“We can no longer afford to allow our most important environmental resources to be filled in and paved over just to allow more development,” said Interlandi.

Lozman has predictably done his legal homework and he argues that if he can’t develop his property, it will constitute a taking under a 1992 case (Lucas v. South Carolina Coastal Council) and Riviera Beach will have to pay up.

Experts in environmental law dispute that Lozman is being deprived of profiting from his land as he has not presented any specific plans for building on it. In any case, his suit is going up to the 11^th Circuit Court of Appeals. Who knows? It, too, might end up at the Supreme Court.

About the author: Diane Roberts is an author, documentarian and journalist whose work has appeared in the New York Times, the Times of London, and the Washington Post.  She’s also a professor of literature and writing at Florida State University.