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An Infamous Florida Man Is in Biden DOJ’s Crosshairs

Fane Lozman's feuds with Florida officials are a Supreme Court legend, but he's facing his toughest battle yet

Fane Lozman / Image via YouTube
• August 14, 2021 5:00 am

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Fane Lozman is the archetypal Florida Man. Naturally, he’s feuding with the government.

Lozman owns a parcel of submerged land in the Lake Worth Lagoon near Riviera Beach, Fla., where he anchors a floating home. In June, the Department of Justice filed a lawsuit to force Lozman off the water, which it says is closed to unauthorized development.

Lozman doesn’t care. He isn’t moving. And if past performance is any indicator of future success, he will probably win.

"I am never moving my floating home off of my private property," Lozman wrote in a letter to the Justice Department. "Your request is Un-American. What country do you represent?"

Lozman is a stubborn man. It’s a disposition that’s been exacerbated over the years by his chosen occupations: inventor, Marine Corps officer, and repeat Supreme Court litigant. He’s unafraid of conflict and tends to handle victory conspicuously.

In 2013, he chartered a plane to tow an aerial banner reading "LOZMAN WINS! ADIOS CORRUPT RB COUNCIL!" over an outdoor confab of local dignitaries he defeated in the U.S. Supreme Court. The stunt marked the end of a years-long dispute involving a secret billion-dollar redevelopment plan and the finer points of federal admiralty law. The parties were back in the Supreme Court a few years later on related business, and Lozman won again.

These days the Justice Department says Lozman is violating the Rivers and Harbors Act, a 19th-century statute that outlaws the "creation of any obstruction … to the navigable capacity of any of the waters of the United States." The lagoon is sometimes used for commercial shipping, and Lozman’s floating home is a needless risk "to navigation, property, and public safety," according to the government’s June 25 complaint.

Lozman says the feds have it all wrong. Even accepting their premises, Lozman told the Washington Free Beacon that the department is being highly selective in its enforcement. In his judgment, the government’s suit is difficult to separate from his long-running beef with local grandees.

"This is a 900-square-foot floating home in a 6.6 million-square-foot area," Lozman said. "If you look to the south … there are all kinds of live-aboards and floating structures everywhere and there’s zero enforcement."

Every town has its crank, an agitator with a paranoid turn of mind and too much free time. There’s no doubt Lozman is a rabble-rouser. But he’s proven too formidable an adversary down the years to be written off as just another pest.

The Justice Department did not comment for this story.

A snowbird from the Chicago area, Lozman’s legal saga kicked off in 2006.

In the early aughts, developers in Riviera Beach and their allies on the city council quietly crafted a waterfront redevelopment plan running over $1 billion. Their plan included an eminent domain measure through which the government would seize several thousand homes for transfer to a private company. The municipal marina where Lozman docked his floating home would likewise be repurposed for large yachts. Lozman got wise to the plan and began fomenting public opposition.

"There are a lot of powerful developers around Palm Beach County that wanted that property," Lozman told the Free Beacon. "One came up with a plan to make it a multibillion-dollar mega-yacht project that was going to take thousands of poor people’s homes."

The state legislature took steps to head off the proposed seizures, and a conservative cause lawyering group specializing in property-rights issues showed up on the scene. With events threatening to undo their carefully laid plans, the city council hastily convened to approve the redevelopment proposal.

The motion carried. In turn, Lozman filed a lawsuit alleging that the council failed to give sufficient public notice for its meeting, a potential violation of Florida’s transparency-in-government regulation, the Sunshine Law. In his view, the council’s vote was void.

Members of the council gathered in private to review their options. Lozman obtained a transcript of their meeting through the state records law. In stretches the council members sound more like a cabal than a meeting of public functionaries discharging their duties under the law.

Councilwoman Elizabeth Wade said the city ought to find ways to intimidate Lozman and make him feel "the same kind of unwarranted heat that we are feeling." Another lawmaker suggested the city retain a private investigator to run down information about their determined foe.

Lozman’s floating home made a ready target for the council’s wrath, since he rented the slip where he maintained his residence from a municipal entity. Riviera Beach thus brought eviction proceedings against him in state court. Lozman demanded a jury trial and insisted on representing himself.

With Lozman, this is a theme. Winning is, too. The jury returned a verdict in his favor, finding that Lozman’s "protected speech was a substantial or motivating factor in the city’s decision to terminate his lease."

Undeterred, the city turned to a federal court in south Florida and obtained a lien on Lozman’s floating home. U.S. Marshals seized the craft for resale and put it up for auction. The city bought it and destroyed it, using taxpayer dollars to put a flourish on its grudge.

The legal analysis in Lozman’s case was pegged to the incorrect assumption that his floating home was a "vessel" sufficient to trigger federal admiralty jurisdiction. Still acting as his own attorney, Lozman argued his floating home was not a "vessel," meaning the city’s claim should be tossed because the federal courts had no jurisdiction to consider it. Vessels, he said, are mobile watercraft used for transportation. Lozman’s floating home was permanently moored to the shore, serviced by land-based utilities, and could move only when towed at slow speeds, and then at considerable risk.

Two federal courts said Lozman’s argument held no water, so he enlisted the help of Stanford Law School’s Supreme Court clinic and appealed to the High Court. The clinic is composed of Stanford students who perform legal work under the supervision of their professors.

As it happened, the lower federal courts were divided over the meaning of "vessel" for purposes of admiralty jurisdiction, so the justices had little choice but to take Lozman’s case to resolve the question.

A local maverick’s battle with the city council suddenly had nationwide implications for floating home owners, unionized marina workers, and even casinos. Riverboat gambling up and down the Mississippi operated on the assumption that floating casinos aren’t "vessels" subject to federal taxes and labor regulations. Disgruntled workers and injured patrons had for years tried to sue riverboat casinos by invoking admiralty jurisdiction, with practically no success. The American Gaming Association filed legal papers supporting Lozman and urged the justices to construe the statutory term narrowly.

Lozman prevailed 7-2 in an opinion delivered by Justice Stephen Breyer. The Court said a "vessel" is a craft a reasonable observer would consider "designed to a practical degree for carrying people or things over water." Lozman’s floating home, the Court noted, was not self-propelling and had no steering mechanism. With its large windows and French doors, it didn’t even look much like a boat. Breyer appended a picture of Lozman’s home to the opinion to underscore the point.

"But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water," the Court’s decision read.

"Those guys have never gotten over that," Lozman told the Free Beacon of his victory. "They still have other agendas to push."

Lozman returned in triumph to Riviera Beach in 2016. He strung a mammoth banner from an elevated platform on his new floating home, acquired from a neighbor who claims it appeared in the Frank Sinatra film Lady in Cement. "Fane Lozman Returns, THANK YOU U.S. Supreme Court!" the banner read, beside a bald eagle draped in the American flag.

That symbol has become something of a mascot for Lozman. His Lake Worth property is marked at the shoreline with a sign sporting the eagle below the word "renegade" in bolded capital letters.

At that point, Lozman and the city were still at odds in litigation. A few months after filing his Sunshine Law lawsuit, Lozman came to a public city council meeting to make remarks during the session’s open comment period. The council was not inclined to listen. Lozman had only just begun to speak when presiding officer Elizabeth Wade—the very same councilwoman who plotted with colleagues to make Lozman feel "unwarranted heat"—summoned the police. Lozman tried to continue speaking.

"Carry him out," Wade said.

The officer removed Lozman and detained him at a police station, but prosecutors ultimately declined to pursue charges. Lozman, acting once more as his own attorney, sued the city in federal court under a civil rights law for retaliatory arrest.

After a trial lasting nearly three weeks, a jury sided with the city and found there was probable cause to detain Lozman for disturbing a lawful assembly, which would defeat his claim for a retaliatory arrest. An appeals court affirmed that result. As long as there was some legitimate basis for detaining Lozman, the city’s vindictive motives were irrelevant.

The Stanford clinic took Lozman on for a second time and appealed to the Supreme Court. The question was a sticky one. Alleged retaliatory intent can be difficult to unravel from probable cause. States and law enforcement groups alike warned the justices that a broad ruling would inundate the courts with dubious retaliation claims.

Nonetheless, an 8-1 Court again ruled for Lozman and held that the existence of probable cause did not immunize the city from Lozman’s lawsuit. Writing for the majority, Justice Anthony Kennedy emphasized that Lozman’s case was unique as compared to other retaliatory arrest suits. Here, Lozman had plausibly alleged the adoption of an "official municipal policy of intimidation" against him.

"When retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress," Kennedy wrote.

Litigiousness has been good for Lozman’s mystique but bad for relations with his neighbors. Reinaldo Diaz, president of a Riviera Beach-area environmental group, worries Lozman’s floating home is damaging mangroves and seagrass in the Lake Worth Lagoon. According to an affidavit he submitted in support of the Justice Department’s complaint, Diaz has kept Lozman’s property under surveillance for the last year and a half, visiting some 20 times to make notes or take pictures from a public sidewalk, a kayak, and even an aerial drone.

Lozman is furious.

"Lozman was livid and disgusted by the drone operator’s behavior because the operator intentionally flew the drone directly over Lozman while Lozman was urinating against a mangrove tree on his private property," Lozman wrote in a motion to strike Diaz’s declaration from the trial record. He elsewhere called Diaz a "sick pervert." The court has yet to rule on the motion.

Attempts to reach Diaz through his group, Lake Worth Waterkeeper, were unsuccessful.

Conflicts big and small have been a feature of Lozman’s run in Riviera Beach. Still, the hassle is worth it for the lifestyle it affords him.

"It gives you instant access to the water," Lozman said of life on a floating home. "Unless you have a multimillion-dollar house, you’re not going to get that immediate access. You’re right there on the water 24 hours a day. If you want to go for a swim, you just jump off and go swimming right there. It’s just a wonderful lifestyle."

Published under: Florida, Stephen Breyer, Supreme Court