Complaint Review: Florida City of Lynn Haven Police Department AND Discount Towing and Recovery LLC

Florida, City of Lynn Haven Police Department AND Discount Towing and Recovery, LLC Christopher Meachum, Police Officer in charge Todd Neiheiser, Registered Agent, Discount Towing and Recovery, LLC, 2798 E 5th St., Panama City, Florida 32401 ; (850) 871-0680 FaceBook =

Jury Trial Denied, Car in Tow company lot since July 9, 2017

We had our car (which belongs to the church) wrongfully towed (stolen) July 9, 2017 by City of Lynn Haven, Florida police officer when it was properly parked on private property CVS Pharmacy and the police officer was informed and acknowledged that I was in route to pick it up.

It was not on a police hold, not impounded, not asked to be removed by CVS Pharmacy personal, not consented to be towed by the car’s owner or driver. It was plain money making for the tow company (and many other tows we are told). We went to redeem the car at Discount Towing and Recovery LLC within an hour of their hook up on a Sunday.

The driver and other employees mulling around the yard said they cannot help us because the office is closed. We called the dispatcher and she said the same thing. State statute says the tow company is open for business if they are towing automobiles and if closed, must open within one hour of the request to redeem the car.

Now we find we are in the wrong court (small claims court) and should be in a civil rights violation court (mentioned by Florida Bar phone call).  Current small claims court judge is just siding with the two attorneys for the defendants (both attorneys are brothers) and nothing for the unrepresented – me and Ponderosa Serenity Ministries.

I initiated a MOTION FOR CLARIFICATION but the judge has not responded (attached).

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Legal Documentation:

AT THE COUNTY COURT - BAY COUNTY FLORIDA

SMALL CLAIMS DIVISION

County Civil Room 105, 300 East 4th Street

Panama City, FL 32402

Ponderosa Serenity Ministries                              

by and through Karl Schönwälder, CEO Mgr                                                                                                

                    Plaintiff,                                                        

          vs,                                                                                                             

Discount Towing & Recovery, LLC, jointly and                         

severally liable, Serving Todd W. Neiheiser: Registered Agent                     

Todd W. Neiheiser, jointly and severally liable                CASE NUMBER 17001836 SC

Christopher Meachum, jointly and severally liable

City of Lynn Haven, jointly and severally liable                                  

Any Other Known/Unknown Actors, jointly and severally liable                                                             

                    Defendants.                             

MOTION FOR CLARIFICATION

Plaintiff brings this MOTION FOR CLARIFICATION  due to a verbal Order from the bench on February 21, 2019 from Judge Campbell  stating he is not going to tell plaintiff what, where, when or how Plaintiffs Subpoena’s and/or Subpoena’s Orders (EXHIBIT -1) for telephone records are deficient and how to correct them after Plaintiff requested the ORDER(s) to be signed in order for Plaintiff to transmit them to the two phone companies.

Clarification of said order is necessary so that I may know more precisely what was meant by Judge Campbell in his verbal order, and thereby determine which one of the three possible directions I should take: 1) file a Motion for Reconsideration, 2) make an appeal to the next higher court, or 3) just accept the order of Judge Campbell denying my Subpoenas and Subpoena’s Orders (EXHIBIT -1) for telephone records altogether and leave it for appeal later.

MEMORANDUM

1. PLAINTIFF, by and through Karl Schonwalder and pursuant to Florida Rule of Civil Procedure RULE 1.460, requested this Honorable Court for a signed ORDER to accompany SUBPOENAS for two telephone companies records.
2.  Subpoenas were narrowed down per instructions from Judge Campbell at the pre-trial hearing dated DECEMBER 12, 2018.
3. We brought subpoena duces tekum for phone records to the courthouse on October 30, 2018  in accordance with Judge Campbell’s order to proceed. We could not find the judges office nor what to do with the papers.
4. We went to the Civil Clerk’s office and they said they would deliver the papers to Judge Campbell or his assistant.
5. We inquired by phone call February 12, 2019 to Judges Assistant Kim Wood, and she acknowledged she could not find these documents and would check into the matter further.
6. Plaintiff needs these records from the phone company as evidence and proof of our phone call to Discount Towing on July 9, 2017.
7. Without these records from the phone companies, the defendant could say our phone call is hearsay.
8. If Plaintiff’s Pleadings/Motions/Subpoena’s were deficient or not properly before the court, the Court is obligated to tell unrepresented Plaintiff how they are deficient and how to correct them (Platsky v. CIA and Anastasoff v. US).

         THEREFORE, the plaintiff requires additional clarification from Judge Campbell’s verbal order of February 21, 2019 with a finding of facts and conclusions of law.

CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that a true and exact copy of the forgoing and following has been furnished to Bay county Florida Clerk of Courts and Defendants via. Florida Courts E-Filing Portal on this  12 day of March, 2019.

                                                            Ponderosa Serenity Ministries by and through

                                                            Karl Schönwälder

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AT THE COUNTY COURT - BAY COUNTY FLORIDA

SMALL CLAIMS DIVISION

County Civil Room 105, 300 East 4th Street

Panama City, FL 32402

Ponderosa Serenity Ministries                              

by and through Karl: Schönwälder, CEO Mgr                

                                                                                MEMORANDUM OF LAW

                    Plaintiff,                                    

                                                                                Case Number 17001836 SC

          vs,                                                       

City of Lynn Haven Florida, jointly and severally liable                               

Christopher Meachum, jointly and severally liable                  

Discount Towing & Recovery, LLC, jointly and                          JURY TRIAL DEMANDED

severally liable, Serving Todd W. Neiheiser: Registered            (FL Const. Art. 1, Sec. 22)

Agent                    

Todd W. Neiheiser, jointly and severally liable               

Richard Rhoades, jointly and severally liable                 

Lynie Weeks, jointly and severally liable                        

Nicole Puluer, jointly and severally liable

Any Other Unknown Actors, jointly and severally liable                    

                    Defendants.                             

This MEMORANDUM OF LAW is made part of the Complaint as if fully set out in the COMPLAINT.

Statute Support

Upon a search of the state statutes non attorneys will come to the “reasonable belief”[means the actual knowledge or belief a prudent person should have without making an investigation, including any investigation of public records] that Title XL Chapter 715 is for giving instructions for the conditions to tow ANY vehicle parked on PRIVATE PROPERTY by tow company or police.  

“715.07 Vehicles or vessels parked on private property; towing.—“

“(2) The owner or lessee of real property, or any person authorized by the owner or lessee, which person may be the designated representative of the condominium association if the real property is a condominium, may cause any vehicle or vessel parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles or vessels, without liability for the costs of removal, transportation, or storage or damages caused by such removal, transportation, or storage, under any of the following circumstances:” Title XL Ch.715.07 (2)

 This law does not give any exceptions for law enforcement nor the towing company without the designated permission to remove a vehicle from private property.

Further search of the state and U.S. Constitutions non attorneys will come to the “reasonable belief” the Defendants abrogated the rights to property under the Fourth Amendment to the Constitution for the United States of America and comparable Florida constitution without due process of law and created a breach of contract.

Had the Mercedes Benz been parked on public property, roadways, fire lanes or public alleyways the Lynn Haven policeman, Christopher Meachum would have the right to call for a tow whether an arrest be made or not.

City of Lynn Haven Florida, Policeman Christopher Meachum and DTR should have known the law as to whether they were acting within the law or not. It is clear from this statute and the constitutions that City of Lynn Haven, the Lynn Haven policeman, Christopher Meachum and DTR was not acting in accordance with the law.

An attorney may argue Title XL Chapter 713.78, but this would not give a reasonable man concise knowledge of the ability to tow without regulations as this section pertains to “Liens for recovering, towing, or storing vehicles and vessels” and not the removal from private property.

Plaintiff’s Administrator called the office of DTR the same day, July 9, 2017 at 1:50 PM and talked with Dispatcher for DTR, Nicole Puluer attempting to redeem the car.  Plaintiff’s Administrator asked who their driver was. Nicole Puluer replied that it was Richard but that he cannot release the car due to it being a weekend even though the state statute says,

“That site must be open for the purpose of redemption of vehicles on any day that the person or firm towing such vehicle or vessel is open for towing purposes, from 8:00 a.m. to 6:00 p.m. and, when closed, shall have prominently posted a sign indicating a telephone number where the operator of the site can be reached at all times. Upon receipt of a telephoned request to open the site to redeem a vehicle or vessel, the operator shall return to the site within 1 hour or she or he will be in violation of this section.” (2015 FL Statute Title XL Ch. 715.07 – (2)(a)1a) (emphasis added)

1. Nicole Puluer did not know Richard’s last name. Nicole would not discuss business to redeem the car and said that the office manager can only release the car Monday through Friday. Plaintiff’s Administrator did not offer to pay a fee since they refused to redeem it or talk business until Monday through Friday, and, it is implied that Plaintiff was willing to pay merely by seeking to redeem the car. We know there is a hook up fee and would have gladly paid that fee which is why Plaintiff’s Administrator was there within the hour so that no further fees would be added as stated in Title XL Ch. 713.78(2)(d) and (9) below:

“Any law enforcement agency, she or he shall have a lien on the vehicle or vessel for a reasonable towing fee and for a reasonable storage fee; except that no storage fee shall be charged if the vehicle is stored for less than 6 hours.” Ch. 713.78, (2)(d) and “Failure to make good faith best efforts to comply with the notice requirements of this section shall preclude the imposition of any storage charges against such vehicle or vessel.” Ch. 713.78 (9). (emphasis added)

1. Defendants City of Lynn Haven, Christopher Meachum and DTR knew, or should have known, the laws pertaining to private property removal from private property and how long DTR can hold a car and the City of Lynn Haven and DTR failed in their responsibility for training all its employees to conform to the laws of the state of Florida and the United States and thus have all committed a crime.

Constitutional Support

This court must look at the Supreme Law of The Land for its controlling law and Florida constitution in the following:  The   Florida   Constitution   grants   municipalities   broad   “governmental,   corporate  and  propriety  powers  to  enable  them  to  conduct  municipal  government,  perform municipal functions and render municipal services.”  Art. VIII, § 2(b), Fla. Const.  (1968).[1] It further  permits  municipalities  to  “exercise  any  powers  for  municipal purposes except as otherwise provided by law.”  Id. (emphasis added). 

In  furtherance  of  this  constitutional  guarantee  of  local  self-government,  the  state  legislature  adopted  the  Florida  Municipal  Home  Rule  Act  in  1973.    Section  166.021 of the Act provides:  (1)  As  provided  in  s.  2(b),  Art.  VIII  of  the  State  Constitution,  municipalities shall have the governmental, corporate, and proprietary powers  to  enable  them  to  conduct  municipal  government,  perform  municipal functions, and render municipal services, and may exercise any  power  for  municipal  purposes,  except  when  expressly  prohibited  by law [emphasis added].

In South Dakota v. Opperman, the U.S. Supreme Court upheld the impound and inventory of a car that remained illegally parked in a no-parking zone after multiple citations had been left on the windshield. The court said, “In the interests of public safety and as a part of what the Court has called ‘community caretaking functions,’ automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. Police will also frequently remove and impound automobiles which violate parking ordinances and thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” (emphasis added)

Plainly we see the cities have the right to impound cars used in the commission of crimes, vehicles damaged in traffic collisions to the extent that they cannot safely be driven away, abandoned vehicles and cars that present traffic hazards or obstruct the normal traffic flow. In other circumstances, however, the cities right to impound is not so clear as is the situation in this cause of action.

Statutes vs. the Fourth Amendment

Because the Constitution is the supreme law of the land (Article VI), states are not at liberty to empower their law enforcement officers to conduct seizures of property that may be unreasonable under the Fourth Amendment. In Sibron v. New York, the Supreme Court considered the conflict between a state statute that purported to authorize certain seizures and the overriding command of the Fourth Amendment that all seizures be reasonable. Finding the seizure in that case unreasonable, the court said, “[A state] may not authorize police conduct which trenches upon Fourth Amendment rights. The question is not whether the search or seizure was authorized by state law. The question is rather whether the search or seizure was reasonable under the Fourth Amendment.”

The U.S. appellate courts and many state courts have drawn the same distinction, finding that vehicles impounded under state or local laws or policies were nevertheless unreasonable under the Fourth Amendment. In U.S. v. Squires, for example, New York City police impounded a car from a parking lot “for safekeeping” after arresting its occupant on a warrant. The Second Circuit Court of Appeals held that this seizure was unreasonable under the Fourth Amendment because the car could have been left lawfully parked in the parking lot as is the situation in this cause of action, and “the officers did not have a reasonable basis for concluding that it was necessary to take the Cadillac to the police station in order to protect it.” The Mercedes Benz was safely and properly parked, inventoried by Defendant Meachum, at the CVS parking lot with People on the way to take possession of it.

In U.S. v. Duguay, a drug suspect was a passenger in a car that was driven into a parking lot and parked. After he was arrested, the car was impounded and inventoried and drugs were found. The Illinois officers testified that it was their standard policy to impound all vehicles “for safekeeping” when an occupant had been arrested. The court found the impound to be an unreasonable seizure and suppressed the resulting evidence: “The decision to impound an automobile is only valid if the arrestee is otherwise unable to provide for the speedy and efficient removal of the car from public thoroughfares or parking lots.” Finding that in that instance were two unarrested associates who were present and could have taken custody of the car, the court found the impound to be in violation of the Fourth Amendment.

In this instant case the Lynn Haven police officer Meachum was advised and informed by the arrestee that the Plaintiff’s Administrator was on his way to take possession of the car and testified to this fact in the criminal court trial of the arrestee [see BayCounty Circuit Case #1700-2495CT].

The Ninth Circuit Court of Appeals considered a civil suit arising from an Oregon officer’s impound of a car after citing the driver and passenger for traffic violations in Miranda v. City of Cornelius. Jorge Miranda, a licensed driver, was trying to teach his wife to drive. An officer saw errant driving and signaled the driver to stop. Mrs. Miranda pulled the car into the driveway of their home and stopped. Both occupants were cited and the officer impounded the car under local and state statutes authorizing an impound when a vehicle was driven by an unlicensed driver. The Mirandas brought a federal civil rights suit for violation of their Fourth Amendment rights, and the Ninth Circuit agreed that the impound was an unreasonable seizure. Although the city argued that the impound was lawful because it was authorized by local laws, the court said, “The decision to impound pursuant to the authority of a city ordinance or state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment.” Noting that the Mirandas’ car was lawfully parked in their own driveway the court ruled the seizure unreasonable. The court limited the circumstances under which a vehicle could lawfully be impounded: “The violation of a traffic regulation justifies impoundment of a vehicle if the driver is unable to remove the vehicle from a public location without continuing its illegal operation. But an officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers.” [emphasis added]

All of the aforementioned theft and holding of property is permanent and continuing in nature.

I certify the foregoing MEMORANDUM OF LAW is true and correct to the best of my knowledge and belief, and not brought to harass, delay, or for any other improper purpose and believe it is founded in law or a good faith need for modification of existing law.

SIGNED, this                  day of February, 2018

_________________________________________

Karl SchönwÓ“lder advocating for Plaintiff Ponderosa Serenity Ministries

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[1] Prior  to  the  adoption  of  section  2(b),  municipalities  had  only  those  powers  granted  by  law.    See  Art.  V,  §  8,  Fla.  Const.  (1885);  Asbell  v.  Green,  32  So.  2d  593,  598  (Fla.  1947)  (holding  that  ability  to  amend  charter  did  not  entitle  city  to  issue  ordinance  extending  its  power  to  include  activities  not  authorized  in  the  charter or by general law).