Lankheim v. Florida Atlantic University, Bd. of Trustees

992 So. 2d 828, 2008 Fla. App. LEXIS 14648, 2008 WL 4330230
CourtDistrict Court of Appeal of Florida
DecidedSeptember 24, 2008
Docket4D07-3276
StatusPublished
Cited by4 cases

This text of 992 So. 2d 828 (Lankheim v. Florida Atlantic University, Bd. of Trustees) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lankheim v. Florida Atlantic University, Bd. of Trustees, 992 So. 2d 828, 2008 Fla. App. LEXIS 14648, 2008 WL 4330230 (Fla. Ct. App. 2008).

Opinion

992 So.2d 828 (2008)

Penelope LANKHEIM, Appellant,
v.
FLORIDA ATLANTIC UNIVERSITY, BOARD OF TRUSTEES, Appellee.

No. 4D07-3276.

District Court of Appeal of Florida, Fourth District.

September 24, 2008.
Rehearing Denied November 14, 2008.

*830 Todd R. Schwartz of Ginsberg & Schwartz, Pembroke Pines, for appellant.

Derek R. Young and Joseph L. Ackerman of Buckingham, Doolittle & Burroughs, L.L.P., West Palm Beach, for appellee.

TAYLOR, J.

Penelope Lankheim appeals a final summary judgment entered in favor of Florida Atlantic University, Board of Trustees (FAU) on her claim for injunctive relief, contending that a trespass order issued against her while she was enrolled in courses on FAU's campus denied her access to the campus without procedural due process. We agree and reverse for further proceedings.

FAU is a member of the State University System of Florida. It is a public university with campuses in Palm Beach and Broward counties. Palm Beach Community College (PBCC) has its south campus on the north end of FAU's Boca Raton campus. FAU's four-story library is open to the public. PBCC has no library on this campus, but PBCC students are allowed to use the FAU library and campus through a cooperative relationship between the two schools.

Plaintiff, Penelope Lankheim, received her B.S. degree from FAU in 1980. In 1985, she received a medical degree from the University of Miami and was issued her medical license from the State of Massachusetts in August 1986. In June 1987, Lankheim was hospitalized for psychiatric treatment for three days at a mental health center in Massachusetts. In July 1987, the Massachusetts Board of Medicine entered an emergency summary suspension of Lankheim's license for a mental disorder. That suspension remains in effect. In August 1987, the Massachusetts Board of Nursing issued Lankheim a license to practice as a registered nurse.

Lankheim described the FAU library as her "stomping ground" for the last thirty years. From 1992 through 1995, Lankheim was enrolled in continuing education courses at FAU. From 1997 through 1999, Lankheim was enrolled in the graduate program for a master's degree in nursing at the FAU College of Nursing. She was six credits short of receiving her degree when she was dismissed from the program for receiving a failing grade. From 1999 through 2000, Lankheim was enrolled at FAU as a non-degree seeking student, taking continuing education courses. During this time, Lankheim was involved in an academic appeal with the FAU College of Nursing, which entailed a number of meetings with her Graduate Advisor, Ellis Youngkin, the Dean of the School of Nursing, Anne Boykin, and FAU's Associate Provost for Academic Affairs, James Fisher. Although Lankheim asserted that she conducted herself in a polite manner at all times during these proceedings and denied making any threats of physical violence, some members of the faculty of the College of Nursing were afraid of Lankheim. Lankheim had repeatedly stated, "I'm not a violent type of person, I'm more of a Ghandi type of person, that's my approach, I really would hate to hurt FAU." Some FAU faculty members and administrators perceived her statements as veiled threats. *831 They were also concerned about her attempts to enlist other students in an effort to "get Dean Boykin." In its answers to requests for admissions, FAU admitted that Lankheim did not physically threaten Dr. Youngkin or Dr. Boykin, but stated that Dr. Youngkin and Dr. Boykin were afraid that Lankheim might threaten them.

On July 7, 2000, FAU issued Lankheim a no trespass warning. The warning effectively banned Lankheim from the FAU campus and prevented her from attending any of her classes. Lankheim was arrested on three occasions for violating the no trespass warning. She was convicted of the three offenses in a single trial and was placed on probation. While the criminal charges were pending, Lankheim filed a civil suit against FAU, claiming that the trespass warning and her subsequent arrests violated her civil rights under 42 U.S.C. § 1983. Ultimately, the parties entered into a stipulation of dismissal with prejudice in January 2002.

From 2003 through 2004, Lankheim was enrolled at PBCC and attending classes on FAU's Boca Raton campus. During this time, Lankheim used the library on FAU's campus without incident. On April 29, 2004, while Lankheim was a registered student at PBCC, she attended an Alumni Reception at the President's Mansion on FAU campus by express invitation. FAU concedes that she was not trespassing at that time. FAU also concedes that she was not disruptive that evening and participated as any other invited guest. After leaving the reception, Lankheim was met by a campus police officer, Sergeant Derrick Paul, who verbally issued Lankheim a trespass warning. The officer explained that the new warning was based on the fact that she had previously been arrested for trespass and had frightened certain officials in the nursing school. Chief Danser had ordered that the new warning be given.

On May 23, 2004, as Lankheim was leaving FAU's library after checking out books, she was arrested by campus police and charged with trespassing. In October 2005, plaintiff was tried by a jury on the new trespassing charge, but the jury was unable to reach a verdict. The trial court declared a mistrial and the state dismissed the case.

On November 6, 2005, Lankheim visited the FAU Boca campus to return overdue library books and to view an exhibit at the FAU art gallery. The campus police issued Lankheim a written trespass warning, which banned Lankheim from any of the FAU campuses for an indefinite period of time. FAU had expressed concerns about Lankheim's being a danger to herself or others because of her "erratic" behavior before the Department of Health in 2003-2005 and certain "prior mental history." In answers to interrogatories, FAU stated, "FAU is in possession of documents reflecting psychiatric examination(s) of the Plaintiff which would show that the Plaintiff can be considered to be a danger to herself and to others." FAU has not made these documents part of the summary judgment record.

The subject trespass warnings have not only denied Lankheim access to the library, art galleries, university theaters, and other resources generally open to the public, but, according to Lankheim, have also amounted to an expulsion from her PBCC courses without any opportunity to challenge the validity of the trespass warnings.

On January 6, 2006, Lankheim filed a verified complaint for injunctive relief. In that complaint, she alleged that her due process rights were violated because:

b. The Florida Administrative Code, (6C5-7.008 Trespass and Loitering), *832 which allows the Office of Provost, through the University's police to issue Trespass warnings, does not contain any administrative provisions/procedure to contest or challenge such warnings.

Lankheim alleged that without such a procedure, not only are her due process rights facially denied, but that such a situation is an:

... open invitation for abuse since any individual, who may be deemed "unpopular" or hold views contrary to that of the University, could be banned from campus and constructively expelled at the whim or capriciousness of a University professor, official or police officer without any recourse....

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992 So. 2d 828, 2008 Fla. App. LEXIS 14648, 2008 WL 4330230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lankheim-v-florida-atlantic-university-bd-of-trustees-fladistctapp-2008.