WELCOME TO HAVEN OF DIVINE LOVE -   A CHRISTIAN NON-PROFIT ORGANIZATION SERVING MANKIND
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA

THE CITY OF CAPE CORAL, FLORIDA PLAINTIFF/COUNTER-DEFENDANT Case No. 15-CA-001568 vs.
THE NELSEN RESIDENCE, INC., DEFENDANT/COUNTER-PLAINTIFF ________________________________________ /

COMES NOW, Defendant/Counter-Plaintiff, THE NELSEN RESIDENCE, INC, by and through undersigned counsel, respectfully files this Motion for Leave to File Amended Counterclaim and as grounds therefore states:
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1. On or around June 17, 2015 PLAINTIFF/COUNTER-DEFENDANT, THE CITY OF CAPE CORAL, FLORIDA, filed a Complaint against DEFENDANT/COUNTER-PLAINTIFF, THE NELSEN RESIDENCE, INC.
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2. On or around July 16, 2015 DEFENDANT/COUNTER-PLAINTIFF, THE NELSEN
RESIDENCE, INC filed an Answer, Affirmative Defenses and Counterclaim.

3.This is DEFENDANT/COUNTER-PLAINTIFF, THE NELSEN RESIDENCE, INC’s, first request to amend its Counterclaim.

4. Florida Rule of Civil Procedure 1.190(a) provides that
“leave to amend shall be liberally granted… As a general rule, ‘leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.’”
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5. DEFENDANT/COUNTER-PLAINTIFF, THE NELSEN RESIDENCE, INC, requests that this Honorable Court grant its leave to file the Amended Counterclaim attached to this Motion as
Exhibit A
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6. This Motion is not filed for dilatory purposes and is in the interests of justice.
PLAINTIFF/COUNTER-DEFENDANT, THE CITY OF CAPE CORAL, FLORIDA, will not be prejudiced by the amendment. Leave to amend therefore, should be freely granted under Rule 1.1190 of the Florida Rules of Civil Procedure.

7. Leave to amend should be liberally granted; it should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.
Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040 (2000),
quoting North Am. Specialty
Ins. Co. v. Bergeron Land Dev., Inc., 745 So. 2d 359, 362 (Fla. 4th DCA 1999)

WHEREFORE, DEFENDANT/COUNTER-PLAINTIFF, THE NELSEN RESIDENCE, INC, by and through undersigned counsel respectfully requests that this Court enter an Order in accordance with the above set forth Motion.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to the addressee(s) herein below set for by Electronic Noticing and/or Electronic Mail, pursuant to Florida Rule of Civil Procedure 1.080 and new Florida Rule of Judicial Administration 2.516 and/or by FIRST CLASS US Mail, this 24th day of December, 2015.
The Hamisch Law Firm, PLLC. Attorney for The Nelson Residence Inc.
By: /s/ Alan. F. Hamisch Alan Hamisch, Esquire Florida Bar No. 088647 5659 Strand Court, Suite 108 Naples, Florida 34110 Tel: (239) 216-4783 Fax: (239) 206-4155
Robert E. Burkett, Jr., Esquire                                                        Steven D. Griffin and Dolores D. Menendez
bobburkettlaw@gmail.com
Office of the City Attorney City of
Cape Coral, FL
sgriffin@capecoral.net
Robert C. Shearman:
bscheuer@capecoral.net
Co-Counsel for Plaintiff/Counter-Defendant dmenendez@capecoral.net
robert.shearman@henlaw.com
courtney.ward@henlaw.com

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA

THE CITY OF CAPE CORAL, FLORIDA PLAINTIFF/COUNTER-DEFENDANT Case No. 15-CA-001568 vs.
THE NELSEN RESIDENCE, INC., Defendant/COUNTER-PLAINTIFF ________________________________________ /


AMENDED COUNTERCLAIM FOR DAMAGES, DECLARATORY AND
INJUNCTIVE RELIEF

COMES NOW Defendant/Counter-Plaintiff, The Nelsen Residence, Inc. (“Nelsen”), and files this Amended Counterclaim for damages, declaratory judgment and for injunctive relief, and alleges as follows:

JURISDICTION AND VENUE
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1. This action arises out of the City of Cape Coral’s violation of the Federal and Florida Constitution.

2. Venue is proper in LEE County Court because the Counter Defendant is located in LEE County and the cause of action accrued here.

3. This court has concurrent jurisdiction with the Federal Court to hear causes of action arising out constitutional claims.

4. At all times material hereto, Nelsen was, and is, a Florida Not for Profit Corporation with its principal place of business in Lee County, and classified by the U.S. Internal Revenue Service as a Church. The Nelsen Residence Inc. Is a religious community of both male and female members similar to a convent or friary. Nelsen owns a single family 2 story personal residence
which includes 3 bedroom, 4 bathroom, a kitchen, dining room, living room, a private chapel, and an attached garage at 2307 SE 15th place, cape coral, Florida (herein referred to as "residence"). The building has always been from its inception, a private residence with a private chapel, and no changes have been made to the building since it was built in 1979. The private chapel is utilized by the occupants of the private residence for their religious practices by their religious community and persons invited into their private home.
Nelson also owns a building adjacent to the Chapel/Residence at 2315 SE 15th Place, Cape Coral, Florida which provides housing to approximately twenty poor and working poor people, some with disabilities, whose rent is subsidized in part by Nelsen (hereinafter referred to as "Haven".)

5. The City of Cape Coral is a Florida municipality located within LEE County, Florida.

6. All conditions precedent to the commencement of this action have occurred, been waived, satisfied, discharged, or excused.

7. Defendant has retained undersigned counsel as co-counsel and has obligated itself to pay both counsel and co-counsel a reasonable fee for services.


GENERAL ALLEGATIONS AND BACKGROUND
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8. In the spring of 2014 a volunteer at Nelsen, Mr. Michael Anagnos, began to make wild assertions and threats to take action that were harmful to the owners and residents of Nelsen.

9. On or about June 1, 2014 the Nelsen board took action and gave Anagnos notice of termination of his residency at Nelsen. He refused to leave and later was evicted from the premises.

10. He swore revenge against Nelsen principals, including Mr. Jerome Valenta and attempted to have him arrested. When that failed, Anagnos complained to Counter-Defendant about the alleged condition of a staircase outside of the Chapel/Residence telling residents he was "going
to fall down the stairs and sue Nelsen". The stairway referred to is a secondary stairway leading up to a second story balcony and not the primary interior stairway for ingress and egress to the second floor of the residence.

11. Counter-Defendant then sent an inexperienced agent, with no construction knowledge, out to view the stairs, and without any discussion with officers of Nelsen or any opportunity to repair the stairs given to Nelsen, issued citations.
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12. Mr. Valenta who has been a real estate broker, developer, and building contractor for more than half his life viewed the stairs and determined them to be structurally sound.

13. Additionally, Nelsen retained two separate building contractors to come in to assess the stairs. The assessment confirmed the soundness of the stair case.

14. Later, when Mr. Valenta attempted to repair the stairs he was ordered by Counter-Defendant not to do so.
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15. A hearing was held on the stairs issues in October of 2014 which Nelsen asked to have continued due to another court hearing that had been set in another county for the same day.
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16. The continuance was denied and orders were entered on the word of one witness-the disgruntled ex-volunteer, Anagnos.
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17. One of the issues involved alleged sign ordinance violations by Nelsen, signs which had been approved by Counter-Defendant in 1999.
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18. Also around this time, Nelsen found out for the first time that land in which the residence sits on had some time earlier been rezoned as a commercial building, despite no notice of any hearing or any due process provided to Nelsen.

19. Because the land was changed, Counter-Defendant insisted on commercial rules for construction being applied to the private residence repairs, when in fact it was not a commercial building, but a private residence.

20. Additionally, officials of Counter-Defendant made a warrantless entry, without any Court Order, into the residence in December, 2014 just days before Christmas, in order to obtain evidence for the complaint currently pending against Nelsen.

21. Mr. Valenta sent numerous letters to the Mayor, Chief of Police and other Cape Coral officials in order to find out why all these actions were being taken against Nelsen, all without response. These letters put Counter-Defendant on notice that it was seeking compensation for damages.

22. The retaliation for questioning the Counter-Defendant's overreaction to a simple stairwell incident, which was based on the false word of Anagnos, continued in January of 2015 when the Counter-Defendant caused the electricity in the Chapel/Residence to be shut off.

23. This caused the two residents of the Chapel/Residence (a Minister and Chaplain) to use candles and other means of light in order to conduct their religious ceremonies for themselves and the community.

24. When Counter Claim Defendant learned they were still using the Chapel/Residence it then caused the water to be shut off at the Chapel/Residence.

25. At no time was Nelsen in default of payment for any bills for electricity or water and again Mr. Valenta wrote to Cape Coral officials asking for answers to the questions of why Counter-Defendant was doing this; again with no response.

26. Now with the electricity and water shut off the, Minister and Chaplain have been forced to move out and services in the adjoined chapel are no longer possible. The building has been
labeled UNSAFE with orders not to enter or occupy it, based solely on the arbitrary, capricious
and retaliatory actions of the Counter-Defendant, all in violation of laws and Constitution of the
State of Florida, as well as in violation of the laws and Constitution of the United States, the
latter which apply to the Counterclaim Defendant through the 14th Amendment, and Nelsen has
been damaged thereby.




COUNT I VOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(Brought Pursuant to 42 U.SC. § 1983)

27. Counter-Plaintiff reallages and incorporates paragraphs 1-26 by reference.

28. Plaintiffs state this cause of action against Defendant in his official capacity for
purposes of seeking declaratory and injunctive relief. 34. The Fourteenth Amendment
to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides
that no state shall “deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. Amend. XIV, § 1. 35.
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29. Nelsen is class of one under the Equal Protection Clause of the United States Constitution.

30. The City of Cape Coral has intentionally treated Nelsen differently from others who are similarly situated.

31. The City of Cape Coral’s actions, policies, and zoning laws violate the Nelsen Residence’s rights under its right to use the building and chapel as a residence (for which it had been zoned prior) and exercise its freedom of religion.

32. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, are unconstitutional abridgementsof Nelsen’s right to equal protection of the law because the City treats Nelsen differently from other similarly situated individuals and religious organizations.

33. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, are not supported by a compelling governmental interest sufficient to justify the punishment against Nelsen and its interference with Nelsen’s religious activities.

34. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served.

35. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, do not serve a significant government interest.

36. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, do not leave open ample alternative channels of exercise of this freedom of religion.

37. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, are irrational and unreasonable, and impose irrational and unjustifiable restrictions on the Nelsen Residence’s free exercise of religion.

38. Nelsen has no adequate remedy at law to correct the continuing deprivation of his most cherished constitutional liberties.

39. There is no legitimate government interest in rezoning the residence as well as cutting off electricity and water to that edifice.

40. There is no rational basis in furthering the City’s policy zoning laws and actions in removing power and water to the building.

41. As a direct and proximate result of City’s continuing violations of Nelsen’s equal protection rights, the Nelsen Residence has suffered in the past and will continue to suffer in the future, direct and consequential damages, including but not limited to, the loss of his ability to exercise his constitutional rights.

WHEREFORE,
Plaintiff demands judgment for damages against Defendant, as well as a declaratory judgment that Defendant violated Nelsen’s constitutional rights and prays for such other relief in equity, which this Court deems just and proper. 





COUNT II FOR DAMAGES AND DECLARATORY JUDGMENT-PLAINTIFF’S EXERCISE OF RELIGION UNDER THE UNITED STATES CONSTITUTION WAS VIOLATED

42. Counter-Plaintiff reallages and incorporates paragraphs 1-26 by reference.

43. The Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

44. The Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution, in conjunction with the Fourteenth Amendment, prohibits the City of Cape Coral from abridging the Nelsen Residence’ free exercise of religion.

45. Nelsen is a religious community with a private chapel in the City of Cape Coral.

46. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, deny the Nelsen Residence the worship in its edifice and/or use the edifice for worship services.

47. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, constitute an unconstitutional restrainton the NelsenResidence’s right to the free exercise of religion.
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48. There is no compelling government interest sufficient to justify the City of Cape Coral’s actions in rezoning the property and shutting off access to water and electricity to the residence in an unconstitutional manner against The Nelsen Residence.
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49. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served.

50. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, are not narrowly tailored restrictions on Nelsen’s free exercise of religion.
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51. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, do not serve a significant government interest.

52. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, do not leave open ample alternative opportunities to worship according to the dictates of their conscience and beliefs.

53. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, are unreasonable, and impose unjustifiable restrictions on Nelsen’s constitutionally protected freedom exercise of religion.

54. The City of Cape Coral’s actions, policies, and zoning laws, on their face and as applied, unconstitutionally chill and abridge the right of The Nelsen Residence to engage in the exercise of religion in its edifice guaranteed by the First Amendment.

55. The Nelsen Residence has no adequate remedy at law.

56. As a direct and proximate result of the City’s continuing violations of The Nelsen Residence ’s First Amendment rights, The Nelsen Residence has suffered in the past and will continue to suffer in the future direct and consequential damages, including but not limited to, the loss of his ability to exercise his constitutional rights.

WHEREFORE,
Plaintiff demands judgment for damages against Defendant, as well as a declaratory judgment that Defendant violated Nelsen’s constitutional rights and prays for such other relief in equity, which this Court deems just and proper.





COUNT III CONVERSION

57. Counter-Plaintiff reallages and incorporates paragraphs 1-26 by reference.

58. The City of Cape Coral’s unconstitutional actions, policies, and zoning laws as set
forth above were unauthorized.

59. The City of Cape Coral’s actions, policies, and zoning laws deprived Counter-
Plaintiff of its use of the property (set forth above) for an indefinite time.

60. Nelsen has a right to possession of said property.

61. Nelsen demanded the City reverse the actions it took to deprive Counter-Plaintiff of the use of the property.
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62. Nelsen has been damaged by the actions of the City of Cape Coral.

WHEREFORE, Plaintiff demands judgment for damages against Defendant, and prays for such other relief in equity, which this Court deems just and proper. 





COUNT IV TRESPASS

63. Counter-Plaintiff reallages and incorporates paragraphs 1-26 by reference.

64. Nelsen is the owner of real property located at 2307 SE 15th Place, Cape Coral, Florida.

65. Counter-Defendant, by and through its agents/employees entered onto the premises identified in paragraph 25.
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66. Counter-Defendant was not authorized to do so and had no court-order or warrant permitting them to do so.

67. Counter-Defendant had no legitimate purpose of entering onto the land and it did so to obtain evidence to use in its actions taken in this underlying case.

68.Counter-Plaintiff has been damaged as a result of this unauthorized intrusion.

WHEREFORE,
Plaintiff demands judgment for damages against Defendant, and prays for such other relief in equity, which this Court deems just and proper. 





COUNT V INVERSE CONDEMNATION

69. Counter-Plaintiff reallages and incorporates paragraphs 1-26 by reference.

70. Nelsen is the owner of real property located at 2307 SE 15th Place, Cape Coral, Florida.

71. The City of Cape Coral has informally exercised its takings power by rezoning the property and discontinuing water and electrical services making it impossible for Nelsen to continue its services as it had provided prior to the taking.

72. Nelsen has been denied all economic and productive use of this land.

73. Nelsen has not been compensated for this taking and continues to suffer damages as a result of the City of Cape Coral not providing just compensation,

WHEREFORE,
Plaintiff demands judgment for damages against Defendant, and prays for such other relief in equity, which this Court deems just and proper. 





COUNT VI VIOLATION OF FLORIDA RELIGIOUS FREEDOM ACT (F.S. 761.01 et. seq.)

74 Counter-Plaintiff realleges and incorporates paragraphs 1-26 by reference.

75. The City of Cape Coral is the “government” or the “state” as defined in Florida Statute 761.02(1).

76. Nelsen is a“Person” as defined in the Florida Civil Rights Act, Florida Statute
760.02.

77. The Religious Freedom Act provides that the government shall not substantially burden a person’s exercise of religion.

78. Counter-Defendant has substantially burdened Nelsen’s exercise of religion by not allowing it to continue to use its house of worship.
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79. There is no compelling governmental interest for the actions taken by Counter-Defendant.

80. Counter-Defendant is not using the least restrictive in the actions enumerated above.

81. Nelsen has been damaged by the actions taken by the Counter-Defendant and will continue to suffer damages by these actions.

WHEREFORE,
Plaintiff demands judgment for damages against Defendant, and prays for such other relief in equity, which this Court deems just and proper. 




COUNT VII VIOLATION OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT (RLUIPA), 42 U.S.C. §§ 2000cc, et seq.,

82. Counter-Plaintiff realleges and incorporates paragraphs 1-26 by reference.

83. The City of Cape Coral is the “government” or the “state” as defined in 42 U.S.C §2000cc–5.

84. Nelsen is a“Person” pursuant to federal and state law.

85. Counter-Defendant has imposed a zoning/land use change on Counter-Plaintiff’s property which substantially burdens its religious exercise.

86. Without proper notice, Counter-Defendant zoned the property owned by Counter-Plaintiff from residential to commercial.

87. The building which was rezoned from residential to commercial contained a private residence and a church below it.

88. The City of Cape Coral’s restrictions and was done for harassment purposes.

89. Counter-Defendant’s actions were not in furtherance of a compelling governmental interest.

90. Counter-Defendant’s actions were not/are not the least restrictive means of furthering a compelling governmental interest.

91. Counter-Plaintiff has been damaged as a result of Counter-Defendant’s violation and continues to suffer damages as Counter-Defendant continues to take actions which violate this law.

92. The community and residents of Nelsen have suffered by the actions of the City of Cape Coral and have lost many important resources which have been in place to provide mental, emotional and financial stability to the community.

WHEREFORE,
Plaintiff demands judgment for damages against Defendant, and prays for such other relief in equity, which this Court deems just and proper.




COUNT IX ABUSE OF PROCESS

93. Counter-Plaintiff realleges and incorporates paragraphs 1-26 by reference.

94. The City of Cape Coral by and through its officers and agents has set forth a
campaign to willfully or intentionally harass the Nelsen Residence.

95. The City of Cape Coral made improper and perverted use of process by continuing to fine and penalize Nelsen during attempts to negotiate and settle with Nelsen.

96. The City of Cape Coral by and through its officers and agents, had ulterior motive or purpose in exercising the process.

97. Defendant’s actions caused injury to Nelsen.

WHEREFORE,
Plaintiff demands judgment for damages against Defendant, and prays
for such other relief in equity, which this Court deems just and proper.

DEMAND FOR JURY TRIAL
Defendant and Counterclaim Plaintiff hereby demand a trial by jury as to all issues triable as of right by jury.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to the addressee(s) herein below set for by Electronic Mail, pursuant to Florida Rule of Civil Procedure 1.080 and new Florida Rule of Judicial Administration 2.516 and/or by FIRST CLASS US Mail, this 24th day of December, 2015.
The Hamisch Law Firm, PLLC. Attorney for The Nelson Residence Inc.
By: /s/ Alan. F. Hamisch Alan Hamisch, Esquire Florida Bar No. 088647 5659 Strand Court, Suite 108 Naples, Florida 34110 Tel: (239) 216-4783 Fax: (239) 206-4155 alan@hamischlaw.com
Robert E. Burkett, Jr., Esquire                                                        Steven D. Griffin and Dolores D. Menendez
bobburkettlaw@gmail.com
Office of the City Attorney City of
Cape Coral, FL
sgriffin@capecoral.net
Robert C. Shearman:
bscheuer@capecoral.net
Co-Counsel for Plaintiff/Counter-Defendant dmenendez@capecoral.net
robert.shearman@henlaw.com
courtney.ward@henlaw.com

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