HomeMy WebLinkAbout04-25-2001 Legal Opinion - Code Enforcement Issues File Matter:BROWN, WARD, SALZMAN & WEISS, P.A.
ATTORNEYS AT LAW
Usher L. Brown'
John H. Ward'
Gary S. Salzman°
Jeffrey S. Weiss
Suzanne D'Agresta
Anthony A. Garganese°
Scott D, Danahy
James G. Vickaryous
Alfred Truesdell
Arthur R. "Randy" Brown, Jr.
Brett A. Marlowe
Jeffrey P. Buak
Kristine R. Kutz
Joseph G. Colombo
Joanne Reed Day
' Board Certified Civil Trial Lawyer
° Board Certified Business Litigation Lawyer
° Board Certified City, County & Local Government Law
April 25, 2001
Jimmette Cook, Code Enforcement Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Re: Legal Opinion - Code Enforcement Issues
File Matter: City of Winter Springs - General
File Number: 1193
Dear Jimmette:
Two Landmark Center
225 East Robinson Street, Suite 660
Post Office Box 2873
Orlando, FL 32802-2873
(407)425-9566
(407) 425-9596 FAX
Website: www.orlandolaw.net
ibuak c ,orlandolaw net
Cocoa, FL: 866-425-9566
Please allow this correspondence to serve as a follow-up to the questions and issues raised
at the March 2001 meeting of the Code Enforcement Board. Specifically you requested legal
opinions of the following matters:
In cases where the owner of property is a landlord, the premise is rented, and a
violation of the City Code is occurring upon the property, is the violator the tenant, the owner,
or both?
The answer depends upon the specific City Code provisions. For instance;
Jimmette Cook, Code Enforcement Manager
City of Winter Springs
April 25, 2001
Page 2
(A) Where a vehicle has been determined to be derelict, disabled or abandoned (See § 12-
53, City Code) the Code provides that no person in charge or in control of any
property within the City, whether owner, tenant, occupant, etc... shall allow such
vehicles to be placed or remain upon such property. Therefore, the property owner
and tenant would be in violation.
(B) Where there is excessive accumulation or untended growth of weeds, undergrowth
or other dead, or living plant life; or stagnant water, rubbish, garbage, etc... it is the
duty of the owner of the property to reasonably regulate and :ffectivcly control such
growth or accumulation. (See § 13-2 (d), City Code).
(C) Where there is a violation of the Building Code, the Code provides that any person
who shall violate the same shall be guilty of a violation of this Code (See §6-4, City
Code). Therefore, if a lessee, who has the authority of the owner to perform work
upon the premises, does so in violation of the Code, that violation will be attributable
to the lessee. However, should the violation continue in existence, then the owner
of the property would be an appropriate violator as well.
Where staff chooses to bring a Code Enforcement action before the Board, it will be
appropriate in most cases to find both the tenant and property owner to be in violation of the Code.
This is due to the fact that the tenant has physical control of the property and is more than likely the
cause for the violation, however, the Code generally holds the property owner responsible as well
for the maintenance and conditions of the property.
May the Code Enforcement Board place liens upon personal property of the violators,
such as a lien upon a vehicle parked in violation of the Code?
Yes, but. Any fine which is imposed by the Code Enforcement Board may be recorded in
the public records and shall constitute a lien upon the land on which the violation exists and any
other real or personal property owned by the violator. If the violator does not own the land, then the
City could look to collect the fine by filing a law suit to enforce the fine as a money judgment, which
would entitle the City to obtain a levy upon personal property, such as unencumbered automobiles,
clothing, electronic equipment etc. The violator, however, will be entitled to claim statutory
exemptions from a levy therefore, it could be very difficult and costly for the City to proceed in this
manner.
May a Code Enforcement Officer for the City go upon property, with the direction of
the Code Enforcement Board, but without an inspection warrant issued by the Court?
Yes. Where a nuisance or hazardous condition exists upon property but is not of such a
nature that it needs immediate governmental action to abate a serious or continuing danger to the
Jimmette Cook, Code Enforcement Manager
City of Winter Springs
April 25, 2001
Page 3
public or occupants, including attractive nuisance cases, the City shall follow the following
procedures:
(A.) Give notice to the property owner, which may be combined with a notice of violation
and notice of hearing before the Code Enforcement Board, stating the specific
violations and that the City intends to seek an order from the Code Enforcement
Board for City work or contracted work to repair or secure the property. The notice
must also indicate that any costs associated with the work performed will be charged
as a lien against the property.
(B.) If the owner fails to perform the work necessary by the time set for hearing before the
Code Enforcement Board, the Code Officer shall submit proof that the condition
continues and the danger to the public. The Code Enforcement Board may render an
order requiring the City to perform such work as is necessary to secure the property
or to make necessary repairs.
Does an inspection warrant give Code Enforcement staff the authority to enter a
residence to check for Code violations?
A municipal code inspector is without authority to enter onto any private, commercial or
residential property to assure compliance with or to enforce the various technical codes of a
municipality or to conduct any administrative inspections or searches without the consent of the
owner or the operator or occupant of such premises or without a duly issued search or administrative
inspection warrant. Inspection warrants are provided for by Florida Statute. (See §933.20-933.30,
Florida Statutes).
An inspection warrant means an order in writing, in the name of the people, signed by a
person competent to issue search warrants pursuant to §933.01, and directed to a state or local
official, commanding him or her to conduct an inspection required or authorized by state or local law
or rule relating to municipal or county building, fire, safety, environmental, animal control, land use,
plumbing, electrical, health, minimum housing or zoning standards. (§93 3.20, F.S.) Owner -occupied
family residences are exempt from the provisions §933.20 et seq. (emphasis added)
Therefore, with the exception of owner - occupied residence, a municipal code inspector must
have the consent of the owner/operator/occupant or a duly issued inspection warrant to enter the
private, commercial or residential property of another to assure compliance with the city's codes.
In the case of owner - occupied residence the inspector must have the permission of the owner or a
search warrant issued by the court.
It is also important to note that any inspection warrant issued will speak very specifically to
the duration for which the warrant is valid and as to what may be inspected. The legislature was
apparently very concerned with the potential for misuse of this authority. If the person seeking the
Jimmette Cook, Code Enforcement Manager
City of Winter Springs
April 25, 2001
Page 4
warrant is found to have done so maliciously or for purposes not provided within the act they can
be found guilty of a misdemeanor. Likewise the inspector may not be used as a confidential informer
or testify as a witness as a predicate for the issuance of a criminal search warrant or for probable
cause to search any dwelling.
If you have any questions, please do not hesitate to ask.
Veit' truly yours,
PP.Buak
J
cc: Anthony Garganese, City Attorney
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