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Home My WebLink About02-16-2001 Standard of Evidence for Issuance of Code EnforcementBROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW Usher L. Brown' John H. Ward' Gary S. Salzman' Jeffrey S. Weiss RpcF.I EP Suzanne D'Agresta Anthony A. Garganese° �� Z �� Scott D. Danahy James G. Vickaryous CITY Of Alfred Truesdell CITY HALL Arthur R. "Randy" Brown, Jr. Arthur Brett A. Marlowe Jeffrey P. Buak Kristine R. Kutz Board Certified Civil Trial Lawyer ° Board Certified Business Litigation Lawyer ° Board Certified City, County & Local Government Law February 16, 2001 111 North Orange Ave., Suite 875 Post Office Box 2873 Orlando, FL 32802-2873 (407)425-9566 (407) 425-9596 FAX Email: firm@orlandolaw.net Website: www.oriandolaw.net agarganese@orlandolaw.net Ms. Jimette Cook Captain Mike Noland Code Enforcement Manager City of Winter Springs City of Winter Springs - - _ - -- 300 N. Moss Road 1126 East State Road 434 Winter Springs, FL 32708 Winter Springs, FL 32708-2799 Re: Standard of Evidence for Issuance of Code Enforcement Citation Dear Jimette and Mike: This correspondence is a follow-up to our discussions at the City Commission meeting held on February 12, 2001 regarding the evidentiary standards to be applied by code enforcement officers and city police officers in issuing citations for code enforcement violations. Initially, I note the Winter Springs Code defines a "code enforcement officer" as: "...any employee or agent of the City of Winter Springs who has been designated by the city manager to enforce the city's codes and ordinances." See § 2-67, Winter Springs Code. Therefore, city police officers may be designated as code enforcement officers for the purpose of enforcement of city codes and ordinances. Code enforcement officers (whether employees of the building department or the police department) may issue citations for violations of municipal codes, where upon a personal Ms. Jimette Cook, Code Enforcement Manager and Captain Mike Noland, City of Cocoa February 16, 2001 Page 2 investigation by that officer, the officer has reasonable cause to believe that a person has committed or is committing a civil infraction of the city code. See § 2-69, Winter Springs Code; § 162.21(3)(a), Fla. Stat. However, as you are aware, there are additional procedural requirements which must be followed prior to the issuance of a citation which are not discussed in this letter. In addition, with respect to the power of arrest, a city police officer may affect the arrest of an individual if the individual violates a city ordinance in the presence of the police officer. Section 901.15(1), Fla. Stat. The decision to arrest, of course, lies entirely within the sound discretion of the police officer, and the police officer may choose to issue a citation as opposed to making the physical arrest of the violator. Furthermore, the Florida Attorney General has previously opined that city police officers may be designated as code enforcement officers within their jurisdictions. In that case, the police officer will wear two hats; one as a police officer and the other as a code enforcement officer. The important distinction to draw is that code enforcement officers do not possess the power of arrest. Therefore the standard to issue a citation is not as great as where a person is subject to arrest. On the other hand, if the city police officer observes the violation, the officer may issue a citation or make a physical arrest by deciding, depending upon the circumstances and the officer's discretion, which "hat" the police officer will wear. See Fl. AGO 97-12 (a copy is attached for your review and records) I hope the foregoing is helpful to each of you. If you have any questions please do not hesitate to call me. t,ity tiuorney AAG:kj Attachment cc: Ronald W. McLemore, City Manager Paul P. Partyka, Mayor and Members of the City Commission F:\DOCS\City of Winter Springs\General\Correspondence\cook - code enforcement citation.ki Page 1 Citation Search Result Rank 1 of 1 Database Fla. AGO 97-12 FL -AG (Cite as: 1997 WL 96659 (F1a.A.G.)) Office of the Attorney General State of Florida *1 AGO 97-12 February 21, 1997 RE: LAW ENFORCEMENT --CODE ENFORCEMENT -MUNICIPALITIES --law enforcement officer designated as code enforcement officer may exercise law enforcement powers as law enforcement officer only. s. 163.21, Fla. Stat. Mr. Donald J. Banks Springfield City Attorney Post Office Drawer 430 Panama City, Florida 32402 Dear Mr. Banks: You ask substantially the following question: Does the City of Springfield's designation of one of its police officers to also serve as a code enforcement officer authorize the officer to carry firearms and make arrests as a code enforcement officer? In sum: A municipal police officer who has also been designated as the city's. code enforcement officer is not prohibited from- carrying -firearrris or making arrests for offenses he observes while carrying out his duties as a code enforcement officer; however, he exercises such powers as a municipal police officer and not as a code enforcement officer. You state that the Springfield City Commission has designated a police officer from the Springfield Police Department to be the city's code enforcement officer. Part I, Chapter 162, Florida Statutes, authorizes municipalities and counties to create by ordinance code enforcement boards for the enforcement of their local codes. Part I of Chapter 162 is a supplemental means of obtaining compliance with local codes and "nothing contained in ss. 162.01- 162.12 shall prohibit a local governing body from enforcing its codes by any other means." [FN1] Under Part I, a "code inspector," as the agent or employee whose duty it is to assure code compliance, initiates enforcement proceedings before the code enforcement board. [FN2] The code inspector notifies a violator of a violation and gives him a reasonable time to correct it. If the violation continues, the inspector notifies the code enforcement board and requests a hearing. The remainder of the enforcement procedure is carried out by the code enforcement board. [FN3] Part II, Chapter 162, Florida Statutes, sets forth further procedures for the enforcement of county or municipal codes. Section 162.21(2), Florida Statutes (1996 Supp.), provides: A county or a municipality may designate certain of its employees or agents as code enforcement officers. The training and qualifications of the employees Copr. ® West 2001 No Claim to Orig. U.S. Govt. Works 19 Fla. AGO 97-12 (Cite as: 1997 WL 96659, *1 (F1a.A.G.)) Page 2 or agents for such designation shall be determined by the county or the municipality. Employees or agents who may be designated as code enforcement officers may include, but are not limited to, code inspectors, law enforcement officers, animal control officers, or firesafety inspectors. Designation as a code enforcement officer does not provide the code enforcement officer with the power of arrest or subject the code enforcement officer to the provisions of ss. 943.085-943.255. . . . (e.s.) The above statute recognizes that a law enforcement officer may be designated as a code enforcement officer; it also provides that the designation does not provide the code enforcement officer with the power of arrest. Municipalities do not have home rule powers to grant non -law enforcement personnel the power to make arrests, carry firearms, and conduct searches and seizures. [FN4] Thus, this office stated in Attorney General Opinion 94-40 that absent legislative authorization for code enforcement officers to possess law enforcement powers, a municipality may not grant such powers to its code enforcement officers. *2 The statute, however, does not prevent the municipal police officer who has been designated as the code enforcement officer from exercising his authority as a law enforcement officer. Thus, if the police officer, while carrying out duties of a code enforcement officer, observes an offense for which an arrest may be made, he may make such an arrest. However, since a code enforcement officer has no authority to carry firearms or to make arrests, the officer in making such an arrest (or in carrying firearms) exercises such authority as a municipal police officer and not as a code enforcement officer. [FN5] I am, therefore, of the opinion that a municipal police officer who has also been designated as the city's code enforcement officer may make arrests and carry firearms; however, he exercises such powers as a municipal police officer and not as a code enforcement officer. Sincerely, Zobert A. Butterworth %ttorney General [FN1]. Section 162.13, Fla. Stat. [FN2]. Section 162.06, Fla. Stat. (1996 Supp.). [FN3]. Sections 162.06-162.08, Fla. Stat. [FN4]. See, Op. Att'y Gen. Fla. 81-38 (1981). And see, Op. Att'y Gen. Fla. 82-12 (1982), stating that power to create appointive office did include power to vest )fficer with the powers of a law enforcement officer. [FN51. You also ask whether a certified law enforcement officer unaffiliated with :he police department may carry a firearm and make arrests. If the officer is iot employed as a law enforcement officer by an agency with jurisdiction within :he city, he is not authorized to carry firearms or make arrests within the city. Pla. AGO 97-12, 1997 WL 96659 (Fla.A.G.) Copr. o West 2001 No Claim to Orig. U.S. Govt. Works