HomeMy WebLinkAbout01-14-2008 City Commission Regular Agenda Item 607 (Jan 14, 2008)REG iEdV '
JAB" 14 2008
CITY OF '::;:TER SPf INGs
BROWN, GARGANESE, WEISS & UAGRE�F' A I'HAcITM �` R"
Debra S. Babb-Nutcher°
Joseph E. Blitch
Usher L. Brown'
Suzanne D'Agresta°
Anthony A. Garganese°
J.W. Taylor
Jeffrey S. Weiss
Board Certified Civil Trial Lawyer
'Board Certified City, County & Local Government Law
Board Certified Appellate Practice
Attorneys at Law
Offices in Orlando, Kissimmee, Cocoa, Tara L. Barrett
Ft. Lauderdale & Tampa Vivian P. Cocotas
Scott J. Dornstein
Robin Gibson Drage
Mitchell B. Haller
Katherine W. Latorre
Terri E. Oster
Amy J. Pitsch
January 14, 2008
Via Hand Delivery
The Honorable Mayor John F. Bush and
Members of the City Commission
1126 East State Road 434
Winter Springs, Florida 32708-6912
Erin J. O'Leary'
Catherine D. Reischmann°
William E. Reischmann, Jr.
Of Counsel
RE: City Commission Regular Agenda Item 607 (January 14, 2008)
Dear Mayor and City Commission:
I had an opportunity to review the proposed policy and procedures manual adopted
by the Code Enforcement Board. For the most part, the policy and procedures manual is
generally acceptable as to legal form and sufficiency. However, I have a few
recommendations for the Code Enforcement Board:
(1) Article III Jurisdiction should be amended to reflect that the Board has "non-
exclusive" jurisdiction over "the enforcement of City Codes of the City of
Winter Springs, Florida.
(2) Regarding the attendance requirements set forth in Article VI, I recommend
adding a sentence that states "Members of the Board may also be removed
for cause as provided under the City Code."
(3) The Abstention and Conflict of Interest paragraph on page 4 should be
substantially revised because the proposed language does not comply with
the provisions of Florida Law. For example, the manual does not state that
a voting conflict of interest can occur if the special private gain or loss is to
the parent organization or subsidiary of a corporate principal by which the
Board Member is retained. In addition, appointed Board Members are not
225 East Robinson Street, Suite 660 • P.O. Box 2873 •Orlando, Florida 32802-2873
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Website: www.oriandolaw.net • Email: firm@orlandolaw.net
January 14, 2008
Page 2
allowed under Florida Law to participate in a matter on which they have a
conflict of interest.
(4) With respect to Article IX on Hearings, this article should be revised to
provide the respondent an opportunity to cross examine the Code
Enforcement Officer and his or her witnesses. In addition, the Code
Enforcement Officer shall be afforded the same opportunity to cross examine
the respondent and his or her witnesses.
(5) Relative to Deliberations:
(a) Respondent should not be found "guilty" or "not guilty". The
respondent should be found "in violation" or "not in violation."
(b) In some instances, it is appropriate to provide a time period for
violators to come into compliance before a fine is established. This
option is not listed.
(c) Although the strict rules of evidence do not apply during a Code
Enforcement proceeding, the proposed rules provide that the
Chairman is responsible for allowing/disallowing evidence into the
record. The proposed rules do not offer any standards by which that
determination is made. In addition, disallowing evidence into the
record could be very dangerous and result in a due process violation.
In many cases, it is advisable to simply allow the evidence to be
proffered and to weigh the evidence as to relevancy and materiality
accordingly. Therefore, I recommend that paragraph C, Introduction
of Evidence, be substantially revised to address my concerns.
I look forward to discussing this matter during the City Commission Meeting.
Ve u yours,
Anthony A. Garganese
City Attorney
AAG/jf