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HomeMy WebLinkAboutCode Enforcement Board Training 2025Code Enforcement Board Training City of Winter Springs Regular Meeting March 20, 2025 Amelia M. Ulmer, Code Enforcement Board Attorney Code Enforcement Where does the Code Enforcement Board’s Authority Come From? Chapter 162, Florida Statutes, the Local Government Code Enforcement Boards Act, which provides: It is the intent of this part to promote,protect,and improve the health, safety,and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable,expeditious,effective,and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist. The “codes and ordinances”mentioned above include:The City’s Code of Ordinances,the City’s Unified Land Development Regulations,the International Property Maintenance Code,and the Florida Building Code. Local Codes vs Florida Statutes •The Florida Statutes codify state laws created through the state-level legislative process. •Local Codes codify local laws codified through the city or county level legislative process. •Proposed amendment to local codes are brought before the local government’s governing body in the form of an ordinance, which is then voted upon and, if approved, will be incorporated into the local government’s code. •Local governments have authority to enact code provisions regarding any matter of subjects, unless the legislature has directly preempted regulatory authority to the State. E.g., regulation of drones preempted to the State, local governments cannot regulate use of drones. •Local laws cannot conflict with state or federal laws. •Code Boards enforce local codes, not the Florida Statutes. Local codes may incorporate statutory provisions, or provisions of regulations such as the International Property Maintenance Code or Florida Building Code. Enforcement Procedure •Step 1: investigation by code officer. •Step 2: attempt to gain compliance. •Step 3: Notice of Violation. •Step 4: Notice of Hearing. •Step 5: Initial hearing and order. •Step 6: Compliance hearing and final order. •Step 7: Fines, liens, and foreclosure. •Enforcement procedure detailed in s. 162.06. The Code Enforcement Process •Typically, an alleged violation is either found by a code enforcement officer or reported by a third party. •Complaints may not be anonymous. •A Code Board member cannot initiate the code enforcement process. •If a violation is found after the code officer’s inspection, a Notice of Violation (NOV) is issued. The NOV must give fair notice of the violation(s) and the provide a “reasonable time” to correct the violation. •If the violations are not corrected by the date provided in the NOV, the case can be put on the Code Enforcement Board’s agenda for hearing. Notices of Violation •Code enforcement case is initiated by code enforcement officer (remember, not members of the Board) by issuing a notice of violation (NOV). •“Code inspector shall notify the violator and give him or her a reasonable time to correct the violation.” Sec. 162.06(2), F.S. •Except: Reasonable time to correct not required for: •Repeat violations; •Violations that present a serious threat to the public health, safety, and welfare; •Violations that are irreparable or irreversible in nature. •NOV must explicitly notify the violator by citing the specific code section at issue and providing a description of how the violation can be corrected. There may be multiple code violations cited in the NOV. •Board can find a violation of all, some, or none of the cited violations. •Up to the Board’s discretion, and only the Board’s discretion. Notices of Violation –Multiple violations •Recent Caselaw Update: Violator/owner appealed from a final judgment of foreclosure of a municipal lien in favor of the City of Largo in the amount of $590,295.Code Enforcement Board imposed $250 per day fine after finding multiple violations including: •Business Tax Receipt •IPMC Roods and Drainage •IPMC Exterior Structure; Handrails & Guardrails •IPMC Exterior Structure; Stairways, Decks, Porches & Balconies •IPMC Plumbing Systems •IPMC Heat Supply Required •IPMC Exterior Structure; Windows, Skylights & Door Frames •IPMC Exterior Structure; Protective Treatment •Building without permits •Inoperable vehicles DJB Rentals, LLC v. City of Largo, 2023 WL 5184322 (Fla. 2d DCA 2023). Notices of Violation –Multiple violations •Argued at the time of foreclosure (6 years after the liens imposed) that it had remedied most of the violations and the City assessed the fines without breaking down what the specific violations were or dropping the fines as violations came into compliance. •Midway through the case, filed counterclaims against the City and the CEB, including claim that the imposition of a single fine for multiple violations and failure to have a mechanism to reduce the $250 daily fine as the property owner corrects individual code violations amounted to a violation of the Due Process Clause of the Florida Constitution. •Court of Appeals ultimately found the Owner/violator waived its arguments by failing to timely appeal the CEB’s order. •After this case, Board Attorney has recommended the Board impose a separate fine for each violation listed in the NOV for which sufficient evidence is presented by the code officer to demonstrate a violation. Board may also impose different dates for compliance for each violation listed in the NOV. Repeat Violations •A repeat violation is a violation of the same provision of a code by the same person within the last 5 years. •If a violation is a “repeat violation”: 1. The code officer does not have to provide a reasonable time to correct the violation and can bring the case straight to the code enforcement board; and 2. A higher fine can be imposed up to $500/day. 3. Daily fine runs from the date the officer first observed the repeat violation. Reoccurring Violations •If a notice of violation is issued and the violation was corrected but recurs before the time to correct in the NOV, the case can be presented to the code board. Best practice is to wait until recurrence occurs 3 or more times. Serious Threat Violation •Pursuant to 162.06(4), F.S., if a violation presents a “serious threat to the public health, safety, and welfare or if the violation is irreparable or irreversible in nature,” the officer need only make a reasonable effort to contact violator and can immediately request a code hearing. If the code board makes a finding of serious threat, the City Commission determines whether the City should take remedial measures. Code Enforcement Board Hearing •All Code Board meetings are public meetings. •All testimony must be given under oath. •Due process is required. •Respondents must be given proper notice of the hearing and a fair opportunity to be heard. (Meaning the respondent must be allowed to speak, present evidence, and present witnesses). •Public comment may be allowed (if the Board so chooses) but is not required. •The code board must make its decision based on the evidence on the record, meaning, the decision must be based solely on the evidence presented at the hearing and nothing else. •Avoid opining on what you’ve seen at this property, or what you think you’ve seen at this property in the past. •Evidence can be in the form of testimony, documents, photographs, or any other medium. Evidence must always be relevant. •Avoid cutting people off. •Better to receive more testimony than not enough. Code Enforcement Board Hearing •Board members may ask questions of the officer, the property owner, tenant, or any witnesses. •Make sure you carefully review the photos presented by the code officer. Make sure you see a picture for every violation and if you don’t see enough evidence of a violation, you should ask the officer to describe what they saw. •Next, make a motion and state your factual findings. •You can find a violation of some or all of the cited violations, or you can find that the code officer did not present sufficient evidence of a violation. That is YOUR decision. •Note that Staff only gives recommendations - you do not have to follow Staff’s recommendations. •Whether a violation exists upon the property, the amount of the fine to be imposed, and the compliance date are all determinations for the Board to make at its discretion. Code Enforcement Board Hearing •If you find a violation, in your Motion, provide a compliance date and set a daily fine amount for each violation. •Note that the fine only begins to accrue if violation is not cured by compliance date. •In determining the fine, Florida Statutes set forth 3 factors to consider: • 1. The gravity of the violation; • 2. Any actions taken by the violator to correct the violation; and • 3. Any previous violations committed by the violator. •Maximum Fines: •$250 per day per violation (standard violation); •$500 per day per violation (repeat violation); •$5,000 per violation flat rate (irreparable, irreversible violation). •The Board then issues an Order containing factual findings, a legal conclusion, the compliance date, and the fine for noncompliance. Noncompliance (Massey) Hearings Purpose of a noncompliance or “Massey” hearing is to provide the violator with an opportunity to contest the imposition of the fine by asserting that they did in fact timely come into compliance as Ordered by the Board. (Due Process). Case: Massey v. Charlotte County, 842 So.2d 142 (Fla. 2d DCA 2003). Board violated property owner’s procedural due process rights when it summarily approved imposition of fines and lien based solely on an affidavit from the code inspector that the owner had not corrected the violation, without notice to the owner or providing an opportunity for the owner to be heard. No avenue for owner to challenge statements of the code inspector. Lack of process created serious risk of deprivation of property. If the code inspector agrees that compliance is achieved in a timely manner, the case is not brought back to the Board because there is no need to give the property owner a chance to contest the officer’s testimony. If the code inspector believes the Owner/Violator has not brought the property into compliance (for some or all of the violations) by the date set forth in the order, the case comes back to the Board for a Massey hearing. The code enforcement officer presents evidence the property has not come into compliance. Massey Hearings – Multiple Violations May find that Owner failed to comply within the time specified by the Board in its Order for all, some, or none of the violations. That is the BOARD’s decision. Code inspector presents evidence that after the time provided for compliance in Board’s order, some or all of the violations remained in noncompliance. For cases in which daily fine imposed per violation, the CEB must determine whether or not compliance was achieved for each violation listed. Owner must be given opportunity to challenge officer’s testimony regarding noncompliance for each violation. For multiple violations, the Code officers can announce at the beginning of the Massey case whether any of the violations found came into compliance within the time ordered by the Board. Board does not need to make further findings on those. Final Order •Following the Massey hearing, the Code Enforcement Board will issue a final order imposing a fine. •The motion issued at a Massey hearing will say the following (or similar): •The violation came into compliance by the date ordered and no fine is imposed. •The violation has not come into compliance and a fine is imposed from ordered compliance date until the violation is corrected. •The violation did not comply by the ordered compliance date but did comply by the date of the hearing, a fine is imposed for the time between the ordered compliance date and the date the violation actually was corrected. •The Final Order will include: •A finding that the violation was or was not corrected by the compliance date set in the initial Order. •If the violation was not corrected, the Final Order will also impose a fine. •The fine, once imposed, will begin to accrue from the original compliance date set in the initial Order. •Note: fines continue to accrue until the violator comes into compliance or until judgment is rendered via a lawsuit filed pursuant to Fla. Stat. s. 162.09. Liens •Fines may become liens if violations are not corrected. •Section 162.09 provides that a certified copy of an order imposing a fine (or fine plus repair costs) may be recorded in the official records. •Once recorded, this order is a lien on the property and any other real or personal property owned by the violator. •Note that fines continue to accrue even after a lien has been recorded. •Code enforcement liens are valid for 20 years. •Note: Section 2-61.5 of the City Code provides that where a certified copy of an order imposing a penalty or fine, as described in this division, has been recorded in the public records of Seminole County, Florida, and has become a lien against the land and/or property of the violator, such violator, or the violator's successors or assigns, who has an ownership interest in the encumbered property may apply for a satisfaction, reduction, or release, of such lien. •Process for lien reduction, satisfaction, or release provided in the City Code. Foreclosure •Three months after filing a lien the Code Board may authorize the City Commission to foreclose on the lien or sue to recover a money judgment in the amount of the lien plus accrued interest. •Note that a code enforcement lien may not be foreclosed on homesteaded real property. Appeals •An aggrieved party, including the local governing body, may appeal a final order of the Code Board in the circuit court. •Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. •An appeal shall be filed within 30 days of the execution of the order to be appealed. Public Boards - Duties and Responsibilities Quasi-Judicial Procedures •Quasi-judicial decisions have an impact on a limited number of individuals and are “contingent on facts adduced at a hearing and where the decision can be functionally viewed as policy application rather than policy setting.” Board of County Com’rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993). •3 Requirements for a Quasi-Judicial Hearing – (1) Afford procedural due process; (2) observe essential requirements of law; (3) decision must be based on competent and substantial evidence. •1. Procedural Due Process: •Due Process requires reasonable notice of the hearing and an opportunity to be heard on the matters (should inquire about whether proper notice has been given). Florida statutes establishes required notice for code enforcement cases. •Parties must be able to present evidence, cross-examine witnesses (participants), and be informed of all facts presented to the quasi-judicial body (evidence presented in the record). •Impartial decision maker – approach in an unbiased and fair manner, without prejudgment of the issues (recusal). •Ex parte communications – contacts made by an interested party to a proceeding with a decision maker outside the presence of the other parties – must be disclosed on the record at the beginning of the hearing. Undermines the concept of an impartial, neutral decision maker. TIP: If approached by an interested party, ask them to come to the meeting and provide comments there. Let them know you should not be receiving information outside of the hearing. QUASI-JUDICIAL NOT QUASI-JUDICIAL Variances Waivers Special Exceptions Plat approval Site specific rezones Code enforcement Comprehensive Plan amendments Text amendments to LDRs Code lien reduction program Quasi-Judicial Procedures •2. Observe the essential requirements of law: •Apply the correct law applicable to the decision (strict compliance with the criteria/code section cited). •Burden of Proof: City has initial burden to prove violation exists or that Respondent has not come into compliance in a timely manner as ordered by the Board. •3. Decision must be based on competent and substantial evidence: •Relevant evidence that a reasonable mind would accept as adequate to support a conclusion. •Some quantity (more than a scintilla) of legally admissible evidence supporting each criteria. •Court will not re-weigh the evidence. •Must be contained in the record. •Testimony and documentary evidence presented at the hearing. Due Process - Ex-Parte Communications •The Board should avoid ex-parte communications concerning the cases. •The Board members may not knowingly initiate or consider ex-parte communications not disclosed on the record which concern the merits of quasi- judicial cases before the Board. •Direct non-city staff contacting Board members to discuss cases to the City Manager or Code Enforcement Department. •If the Board receives or sends any ex-parte communications, the communications must be publicly disclosed. •Written communications should be disclosed by forwarding the communication to the Board Clerk. Verbal communications shall be disclosed by announcing to the Board prior to the commencement of a case hearing the name of the contact person, date of the communication, and substance of the communication. •The substance of ex-parte communications will be placed on the record when the application is heard. Government in the Sunshine •Section 286.011, Florida Statutes, provides: “All meetings of any board or commission of … any agency or authority of any county, municipality, or political subdivision…at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.” •Could be rephrased as follows: “Any communication between two members of the same board on any matter which may reasonably or foreseeably come in front of the board must take place at a time and place of which the public has reasonable notice and location where the public has reasonable access.” •Minutes of the meeting must be taken and open to public inspection. •Boards may not take action on or engage in private discussion of board business via written correspondence, emails, text messages, or other electronic communications (Facebook). Government in the Sunshine •Email communication of information from one board member to another may not violate the Sunshine Law if there is no interaction related to the report but circulating “position statements” is highly discouraged and may pose other procedural due process concerns. •Sunshine Law does not prohibit board from taking action on an item not on the agenda, but other procedural due process concerns or code requirements regarding notice may be implicated. •Public Comment In General: •Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission. The opportunity to be heard need not occur at the same meeting at which the board or commission takes official action on the proposition if the opportunity occurs at a meeting that is during the decision-making process and is within reasonable proximity in time before the meeting at which the board or commission takes the official action. •Public Comment for Code Enforcement Board proceedings: • The opportunity to be heard does not apply to a meeting during which the board is acting in a quasi-judicial capacity (though would not affect right of person to be heard as otherwise provided by law). AGO 2017-01. •Abstention from Voting: • Sunshine Law requires voting, unless there is or appears to be a possible conflict of interest OR, in a quasi-judicial proceeding, a member may abstain if the abstention is to assure a fair proceeding free from potential bias or prejudice. Government in the Sunshine •Sunshine Law Don’ts: •Do not talk about matters during recesses. •Do not talk about matters to come before the Board before or after meetings. •Do not talk about such matters between meetings (even at City Hall). •Do not pass notes or whisper to other members during a meeting. •Do not talk about Board business in social settings. •Do not talk about votes, hearings, or actions after the public meeting as the matter may come back before the Board in a different context •Penalties for violation of Sunshine Law: •Criminal misdemeanor for knowing violation •Removal from office •Noncriminal infraction – fine not exceeding $500 •Reasonable attorney’s fees assessed •Final action taken is void Public Records •Municipal records are to be open for personal inspection and copying by any person. Providing access to public records is a duty of each agency. •Florida Statutes § 119.01(1). •“Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. Florida Statutes § 119.011(12). •Includes: written materials, tapes and recordings, photographs and film, electronic databases and files, emails, Facebook posts, texts, and tweets. •Records must be retained in accordance with records retention schedules. •There is no requirement that requests for records must be in writing or in a particular form; let the city clerk know immediately if you believe you have received a request for records. Records must be produced within a reasonable time. Code of Ethics Chapter 112 Florida Statutes •Board Members are considered “public officers” – includes elected and appointed officials. •Cannot solicit or accept anything of value, such as a gift, loan, favor, or service given for the purpose of influencing votes or actions. •Cannot do business with one’s own agency, i.e., sell, lease or rent property, goods or services to the City. •Cannot use position to secure a special privilege or benefit. •Cannot hold conflicting employment or contractual relationship, i.e, cannot have contractual relationship or be employed by an agency or business entity that does business with the City and cannot have contractual relationship or employment that will create a continuing or frequently occurring conflict of interest. •Cannot misuse privileged information. •Cannot appoint, employ, promote, or advance relatives. •Cannot vote on any measure which would inure to the special private gain or loss. •Must disclose personal interests, financial interests, clients represented, contributions and honoraria. •Penalties include removal from office, censure, restitution and civil penalty up to $10,000. Code of Ethics – Voting Conflicts Florida Statutes § 112.3143 •No municipal or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss OR to the special private gain or loss of: •A principal by whom the officer is retained (e.g., employer or clients). •To the parent organization or subsidiary of a corporate principal by which the officer is retained. •A relative or business associate of the officer (father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, daughter-in-law; but may extend broader to other relatives such as brother-in-law if the benefit would impact a relative such as sister). (Note that measure affecting relative’s employer may also create a conflict). •Special private gain or loss = economic benefit or harm. •Impact of nearby development? Too remote or speculative? •Before the vote is taken, officer shall publicly state to the Board the nature of the interest in the matter from which he or she is abstaining and within 15 days after the vote occurs, disclosure the nature of the interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum into the minutes. •No appointed officer shall PARTICIPATE in any manner that would insure to the special private gain or loss of any of the persons or entities listed above without first disclosing the nature of the interest. •If interest is not given to person responsible for recording minutes BEFORE the meeting, disclosure must be made orally at the meeting when it becomes known that a conflict exists. Memorandum must be filed 15 days after. •Voting conflict is analyzed separately from procedural due process and impartial decision maker standard. Questions? Thank you!