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HomeMy WebLinkAbout1987 01 20 Regular . e e '. . ( ) ~.. .) DEP ART~IENT OF LEGA T.. AI"'I~'AIRS OFFICE OF THE A TTORNEY GENERAL THE CAPITOL TALLAHASSEE. FLORIDA 32301 JIM SMITH Att:maev General :;~;'te of Florida February 27, 1985 Mr. Harold M. Knowles Board Counsel Municipal Code Enforcement Board 528 E. Park Avenue Tallahassee, Florida 32301 85-17 Re: LOCAL GOVE&~NT CODE ENFORCEMENT BOARDS ACT--~ruNICIPALITIES--refusal by board to extinguish lien when fine has been paid but property remains in noncompliance; levy of fine by board when property brought into compliance prior to hearing before board; imposition of fine by board based on finding of violation be- fore board has ordered compliance or before compliance period has expired; unauthorized. Ch. 162, F.S. Dear Mr. Knowles: This is in response to your request for an Attorney General's Opinion on substantially the following questions: 1. WHETHER A MUNICIPAL CODE ENFORCE- MENT BOARD MAY REFUSE TO EXTINGUISH A LIEN AGAINST PROPERTY CITED AND FINED FOR A VIOLATION OF A MUNICIPAL ORDINANCE WHERE THE FINE IHPOSED BY THE BOARD HAS BEEN PAID BUT THE PROPERTY REMAINS IN NONCOMPLIANCE? 2. WHETHER A HUNICIPAL CODE ENFORCEHENT BOARD MAY LEVY A FINE AGAINST A PERSON WHO IS CITED BY A MUNICIPALITY FOR A CODE VIOLATION BUT ~n10 BRINGS THE PROPERTY INTO COMPLIANCE BEFORE THE CASE IS PRE- SENTED TO THE BOARD? ..... .-, ,.'~~~ ~~ \."l ~;t f'i ~.', :~~., ~I''''''.r~,:"..,. '~" "._ ..\ !Vil:\: ,- -. .! ~f.;t ;:. ~~t.,;, i ..... 'J . U'j. tL~.r; 1 198: ~ ... ;'..~C;:'oj; -,.::;? /'. L C.()iJ r: ENFORCfUiENT BOARD __ 1'"'1 . . . -. .......!. - " ,. . . , ) \j ) . Mr. Harold M. Knowles Page Two 85-17 3. WHETHER A MUNICIPAL COD~ EHFORCEMENT BOARD IS AUTHORIZED TO IMPOSE AN INITIAL FINE ON A VIOLATOR BASED SOLELY ON ITS FINDING THAT A VIOLATION PAS OCCURRED AND BEFORE THE BOARD HAS ACTUALLY ORDERED COM- PLIANCE OR BEFORE THE COMPLIANCE PERIOD HAS EXPIRED? Your questions are answered in the negative for the following reasons. The expressed intent of the "Local Government Code Enforce- ment Boards Act," Ch. 162, F.S., is to promote, protect and improve the health, safety and welfare of the citizens of this state by authorizing the creation of administrative boards to provide an equitable, expeditious, effective, and inexpensive method of enforcing county and municipal technical codes. See, ~~162.01 and 162.02, F.S. Pursuant to ~162.03(1), F.S~each county or municipality may, at its option, create or abolish by ordinance such a code enforce- ment board as provided in Ch. 162, F.S. e The enactment of Ch. 162, F.S., creating adQinistrative enforcement procedures and authorizing the imposition of administrative fines by local governmental bodies was necessitated by the provisions of ~l, Art. V, and ~18, Art. I, State Const., which state that commissions established by law or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices, and that no administrative agency shall impose a sentence of imprisonment, nor shall it i~ose any other enalt exce t as rovided b law. See, AGO 84-55 an authorities cite therein. --- The powers of a local government code enforcement board are described by ,162.08, F.S., which states that such board shall have the power to: (1) Adopt rules for the conduct of its hearings. (2) Subpoena alleged violators and witnesses to its hearings. Subpoenas may be served by the sheriff of the county or. police department of the municipality. (3) Subpoena evidence. . . . () ) . " o. . Mr. Harold M. Knowles Page Three 85-17 (4) Take testimony under oath. (5) Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance. e And see, ~162.07(4), F.S., which provides that at the con- clusion of an enforcement board hearing the board shall issue findings of fact and shall "issue an order affording the proper relief consistent with ~o...,ers ~ranted herein." (e.s.) It is the general rule wit regar to aJministrative officers or agencies that they possess no inherent power and may exercise only such authority as is expressly or by necessary i~plication conferred by law. S~e generally, 67 C.J.S. Officers ~9l90, 192. ~ee,~., Lang v. Walker, 35 So. 78, 80 (Fla. 1903); Gessner v. Del-Air Corporation, 17 So.2d 522 (Fla. 1944). And see, Molwin Inv. Co. v. Turner, 167 So. 33 (Fla. 1936) (an express power duly conferred may include implied authority to use means necessary to make the express power effective, but such implied authority may not warrant the exercise of a substantive power not conferred). In addition. any reasonable doubt~5- tu the lawful existence of a particular power sought t;:o~_bJ~ ~x.ercised by an adminis- trative a enc or officer must be resolved a ainst the exercise thereof. , State ex reI. Greenberg v. Flori a State Board of Dentistry, 297 So~2a-02a (1 D.C.A. Fla., 1974), ceit. dismissed, 300 So.2d 900 (Fla. 1974); City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So.2d 493 (Fla. 1973). In AGO 84-55 this office was asked to consider whether a municipality that has established a local government code enforcement board could require by ordinance that the code enforcement board impose an administrative charge or fee on individuals, businesses or other entities which are found guilty of a violation of one or more of the municipality's technical codes. As I stated in that opinion, 9162.03, F.S., gives local governing bodies the option of creating or abolishing such code enforcement boards by ordinance as provided in Ch. 162, F.S., but does not authorize local governing bodies to regulate such boards or their nembers except as provided in 9~l62.03 and 162.05, F.S. Although 9162.13,F.S., permits a local governing body to enforce its codes by means other than those prescribed in ~~162.01 _ 162.12, F.S., no provision of Ch. 162, F.S., delegates any power to local governments or their governing bodies which. . , , '. . e . . . () .) t · Mr. Harold M. Knowles Page Four 85-17 have created a code enforcement board pursuant to.Ch: 162 to enact any legislation to modify or deviate from the pro- visions of Ch. l62,F_S., or to confer any power or impose any duty or requirement upon the code enforcement boards, their members, or the code inspectors. The duties, functions and powers of the code enforcement boards are set forth in and derived from ~~162.07 - 162.09, F.S., and the local governing body is granted no power to place any additional requirements or impose any additional duties on such boards. As I stated in AGO 84-55 and reiterate here, I cannot say th;tt municipalities cierive any rower under ~2 (b), Art. VIII, State Const., or ~166.02l, F.S., to regulate Qunicipal code enforcement boards or impose any duties or requirements on such boards or to otherwise regulate the statutorily pre- scribed procedures of such boards. Thus, Ch. 162, F.S., represents a delegation of the power of the Legislature to create a local government code enforce- ment board as an enforcement mechanism and gives the governing bodies of municipalities and counties the option of creating or abolishing by ordinance such boards which have the powers and duties s~t forth in that chapter. 'g~j;L._lQ_caL..gQYe:1:'Jling bo cho ses to utilize this enforceme me nism and the proce ures---s ~:..L-.!t is bourid~ ~~~ . 'ons of this chapter regarding efffOrcement~ procedures and en orcement oar s. ap er , F. ., does not constitute a deIegat10n to ~ocal governmental bodies of the Legislature's exclusive power to fix or provide for administrative penalties or the costs of prosecution of legislatively-prescribed enforcement procedures or the collection of such penalties or costs. Thus, a local govern-, mental entity or its governing body derives no delegated . authority from eh. 162, F. S., to enforce its technical I! codes, in any manner other than that provided in eh. 162. _' Section 162.09, F.S., makes provision for administrative fines and liens and states'as follows: The enforcement board, upon notification by the code inspector that a previous order of the enforcement board has not been complied with by the set time, may order the violator to pay a fine not to exceed $250 for each day the violation continues past the date set for compliance. A certified copy of an order imposing a fine may be recorded in the public records .t , . -,,' ... . e e LJ ) Mr. Harold M. Knowles Page Five 85-17 and thereafter shall constitute a lien against the land on which the violation exists or, if the violator does not own the land, upon any other real or personal property owned by the violator; and it may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the personal property, but shall not be deemed to be a court judg- ment except for enforcement purposes. After 1 year from the filing of any such lien which remains unpaid, the enforcement board may authorize the local governing body attorney to foreclose on the lien. And see, ~162.l0, F.S., regarding the duration of liens ImPosed by such boards. The lien provided for in this section secures and is the method of enforcing the fine imposed for noncompliance with a previous order of the en- forcement board. I am not aware of, nor have you brought to my attention, any provision of Ch. 162, F.S., authorizing a code enforcement board to refuse to extinguish a lien against property which has been cited and fined for a vio- lation of a municipal ordinance when the fine i~posed by the board has been paid but the property remains in noncom- pliance. Nor does Ch. 162, F.S., provide for or authorize a code enforcement board to levy a fine against a person who has been cited for a code violation but who brings the property into compliance before the case is presented to the board. Finally, no rovision of Ch. 162 empowers the board to levy an ~n~t~a ~ne e ore como ~ance ~s or ere or before the per~od set for compliance has expired. Therefore, unless and until judicially or legislatively determined otherwise, it is my opinion that a municipal code enforcement board is .not authorized to refuse to extinguish a lien against property cited and fined for a violation of a municipal ordinance where the fine imposed by the board has been paid but the property remains in noncompliance. Nor may a municipal code enforcement board levy a fine against a person who is cited by a municipality for a code violation but who brings the property into compliance before the case is presented to the board. Finall , a munici al code enforcement board ossesses no authority to ~mpose an ~n~t~a ~ne on a v~o ator ase . 1 it . ..;. . ' . e . \) Mr. HaroldM. Knowles Page Six soleI before the compliance Prepared by: I / bE.~~ #~ VU-trn6 Gerry Hammond. Assistant Attorney General JS/GH/nw ) 85-17 ~ occurred an iance or th~ GENERAL CASEN .,.. . .., VIOLATION FROM: Nov. 1.1986 TO: Dec. 31. 1986 SECTION 86-309-0022 8~0023 86~0026 86-309-0027 86-309-0028 86-309-0035 86-309-0036 86-309-0039 , I I 86-309-0062 86-313-0001 86-313-0062 86-316-0029 I 86-316-0030 86-316-0032 86-e-0032 86-317-0033 86-317-0037 86-322-0015 86-322-0032 86-324-0010 86-324-0011 86-324-0012 86-324-0013 86-327-0016 86-327-0024 86-327-0025 86-3'9-0013 86'9-0014 Di sabl e Vehi cle Disable Vehicle Disable Vehicle Disable Vehicle Disable Vehicle Disable Vehicle Disable Vehicle Disable Vehicle Unkept Property Stagnant Pool Como Veh. Prk. Res. Area Barking Dog Opo Business WIO license Ope Business WIO license Ope Business WIO license More Than 2 Adult Dogs Animals @ large Unkept Property No Bld'g. Permit (fence) Alarm Connect To P.O. Boat Improperly Parked Boat Improperly Parked Boat Improperly Parked Excess 23 Feet Improperly Parked Veh. Parked Res. Area Como Veh. Moved isabled Vehicle isabled Vehicle isabled Vehicle Vehicle removed Vehicle removed Vehicle removed Vehicle removed Vehicle removed Vehicle removed Vehicle removed Vehicle removed Property Cleaned Up Code Board Vehicle Moved No Further Complaints Obtained Business license Obtained Business license Obtained Business license Removed One Dog Animals Secured Property Cleaned Up Permit Obtained Alarm Disconnected Boat Moved Boat Moved Boat Moved Boat Moved Boat Moved Vehicle Removed Vehicle Removed Vehicle Removed 44.85 44.85 44.85 44.85 44.85 44.85 44.85 44.85 7.1(a) 5.149(c) 44.81(1a) 4.15 8.20 8.20 8.20 44.79 4.13(a) 7.l(a) 5.122 9.32 44.74 44.74 44.74 44.74 1l4.74 44.81 44 . 85 44.85 44085 CASEI, . FROM: VIOLATION Nov. 1. 1986 TO: Dec. 31. 1986 SECTION 86-329-0016 ~-0017 8~~-0020 86-330-0001 86-333-0011 86-338-0012 86-338-0026 86-339-0010 86-339-0038 86-340-0011 86-342-0021 86-342-0036 86-344-0062 86-347-0032 86.-0021 86-349-0022 86-349-0023 86-349-0028 86-349-0030 86-350-0037 86-350-0040 86-352-0052 86-352-0054 86-353-0020 86-351-0051 86-358-0014 86-363-0031 86..-0032 Disabled Vehicle Vehicle Removed Disabled Vehicle Vehicle Removed Disabled Vehicle Vehicle Removed Pool Gate Unlocked/Open Gate Closed/locked Dog @ large Dog Secured Com. Veh. Prk. Res. Area Com. Veh. Removed Disabled Vehicle Vehicle Removed Animal @ large Animal Secured No Bld'g. Permit Permit Issued Com. Veh. Prk. Res. Area Com. Veh. Removed . Disabled Vehicle Vehicle Removed Noise Nuisance Noise Ceased Unkept Property Property Cleaned Up Chickens Res. Area Chickens Removed Junk Vehicle Vehicle Removed Junk Vehicle Vehicle Removed Junk Vehicle Vehicle Removed RoVo Parked Reso Area R.V. Removed R.Vo Parked Res. Area R.V. Removed Junk Vehicle Vehicle Removed Unkept Property Property Cleaned Up Junk Vehicle Vehicle Removed Junk Vehicle Vehicle Removed More Than 2 Adult Dogs One Oog Removed Barking Dog No Further Complaints Barking Dog No Further Complaints Com. Veh. Prk. Res. Area Com. Veh. Removed Com. Veh. Prk. Res. Area Com. Veh. Removed 44.85 44.85 44.85 5.128 4.13(a) 44.81 44.85 4.13(a) 5.122 44.81 (la) 44.85 9.14 7.2(a) 44. 17 44.85 44.85 44.85 44.81 44.81 44.85 7.2(a) 44.85 44085 . 44 . 7 9 4.15 4.15 44.81 44.81 CASE-# . VIOLATION FROM: Nav. I, 1986 SECTION TO: De c . 31, 1986 lilt PENDING THIRTY DAYS NONE PENDING SIXTY DAYS NONE . ~ . . NOTICE TO APPEAR AT HEARING NAME Olive P. Wa~ner ADDRES~nR 55 Altamontp Spring~. Fl. YOU ARE HEREBY SUMMONED TO APPEAR AT A HEARING OF THE CODE ENFORCEMENT BOARD OF THE CITY OF WINTER SPRINGS, FLORIDA, LOCATED AT CITY HALL, 1126 EAST S. R. 434, WINTER SPRINGS 32708. # YOU ARE NOTIFIED TO APPEAR AT; TIME 7 : 15 PM DATE January 20, 1987 '. AT THE AFORESAID TIME AND PLACE THE BOARD WILL H~ EVIDENCE TO DETERMINE WHETHER YOU ARE IN VIOLATION OF SECTION 5-149{c) OF THE MUNICIPAL CODE. YOU WILL.~E AFFORDED THE OPPORTUNITY TO PRESENT EVIDENCE THAT YOU ARE NOT IN VIOLATION OF THE AFORESAID SECTION OF THE CODE, AND YOU MAY BE REPRESENTED BY COUNSEL OF YOUR CHOICE. I YOUR FAILURE TO APPEAR CAN RESULT IN JUDGEMENT RENDERED AGAINST YOU. This is in reference to the city of Winter Springs, Fl. I CERTIFY A COpy OF THIS DOCUMENT WAS SERVED BY )( CERTIFIED MAlL THIS /.1- DAY OF HAND DELIVERY '. , 7/1//tf ~ rJ / BY: ~~ %'1 ~~ ~ J /9F7. . e . . . ORDER OF THE CODE ENFORCMENT BOARD - CITY OF WINTER SPRINGS IN RE: OLIVE P. WAGNER The Code Enforcement Board of the City of Winter Springs, Florida sat in Hearing on January 20, 1987, in the matter of Olive P. Wagner to determine whether she is in violation of Sec. 5-149(c) of the Code of Winter Springs, Florida. Upon hearing all evidence on the matter, the Board arrived at the following: FINDINGS OF FACT AND LAW 1. OLIVE P. WAGNER is in violation of Sec. 5-149(c). After arr1v1ng at the foregoing Findings of Fact and Law, the Board enters an Order as follows: ORDER OF THE BOARD 1. OLIVE P. WAGNER comes into compliance with SEc.5-149(c). On service of the Order of the Board she will be fined $500.00. She will have a three day grace period to clean up the pool before there is an additional $100.00 per day fine assessed until she comes into compliance. Now then the Code Enforceent Board of the City of Winter Springs, Florida instructs all enforcement procedures to be instituted to accomplish this order. This day of January, 1987. JAME CODE CITY ~y " . -- . . "-<?\><';~~'~::' .' " ,^'~':'~.:t -.~ .-.;": . -e ~. ,- '. .....--...... NOTICE OF VIOLATION THE CITY OF WINTER SPRINGS CODE 86-287-0030-C6 NAME MIKE BARRETO ADDRESS 214 Wade St Winter Springs DATE January 5, 1987 CODE SECTION IN VIOLATION 44.85 CODE REQUIREMENTS Vehicles must be currently registered and capable of being driven . FACTS OF VIOLATION 1966 VW BeatIe, VINf! 116233708, has no tag CODE ENFORCEMENT BOARD INSPECTOR: Officer Sonafelt For further guidance to determine the procedure to comply with the code of the City of Winter Springs, please contact Code InRpec.tor at 1126 East S.R.434,Winter Springs, Fl. 327-1000 Monday - Friday 8:00 a.m. to 5:00 p. m. Response: (To be filled in by Code Enforcement Officer) TO BE CORRECTED BY 1/12/87 OR APPEARANCE BEFORE THE CODE BOARD WILL BE REQUIRED AND POSSIBLE FINES IMPOSED. I certify a copy of this document was served by Hand Delivery, k Certified Mail, this,j day of ~'~?<<4rv , 1987. "'2 "7 /- - A ,/ By:/" ~~~, d~~~~~ .... ~." . ."".' . SENDER: Complete iterm 1 and 2 when addltlonal_Meesere desired. and complete Item. 3 and 4. Put your add..... in the "REnJRN TO" aplICI on the nMIr11 .Ide. Failure to do thl. will prevent this an:! from being returned to you. The..llt!!m [J!;IiRt f.. will Qrovlde YOU the name of the e!!!2!! delivered to and the ~ of dllMAt\.'or addltlo..I fees th. a following services ere available. COnsult poitm-.ter tof fees a~) for additional MrVIce(.) requnted. 1. 0 Show to whom dII~. ~. and addreaee'. add...... 2. 0 Restricted DeIiV9l'V. 3. Article Addreaed to: 4. A Ie '. bar ?1cke ,(fa ,-,,-efo ef/~ ~p./e ~-I. j,e//~f?.r- ~rln9~ FL . / ~.:( 70/ 5. Signature - Addressee X Type of Service:' Registered B Insured ertified COD Exprlll Mall Alway. obtain .ignature of eddr..... or 8lIlInt and DATE DELIVERED. 8. Add......... Addrlll (ONL Y if requelted and fee paid)1 e DOMESTIC RETURN RECEIPT . Case H 8~-309-0062-C:r ~ ~.~ - . . NOTICE OF VIOLATION THE CITY OF WINTER SPRINGS CODE Property located at: NAME Olive P. Wagner ADDRESS P.O. Box 55 Altamonte Springs. Fl 55 S. Fairfax Ave Winter Springs, Fl ~ DATE 11-5-86 CODE SECTION IN VIOLATION r.hRprpr 7 And Chapter 5-149 (c) CODE REQUIREMENTS copy of ordinances attached FACTS OF VIOLATION Grass and weeds overgrown, traFlh in yard. Swimming pool black with a12ae growth. ~. iia .'.\:W' ~DE ENFORCEMENT BOARD INSPECTOR: >",,l;.,',r:: ; B. Sonafelt . For further guidance to determine the procedure to comply with the code of the City of Winter Springs, please contact r.ndp Tn~~{"t-nr at 1126 East S.R.434,Winter Springs, Fl. 327-1000 Monday - Friday 8:00 a.m. to 5:00 p. m. Response: (To be filled in by Code Enforcement Officer) 'T'n be corrected gy November 12. lqfHi or App~Rr.::ln{"p h~fnr~ t-h~ rn(Je ROi'rd uill be required. I certify a copy of this document was served by / Hand Delivery, By: ~~ day of pmJ. . ?h~~ ~~ , 198~. Certified Mail, this ~. ~- :!';."" . . . SENDER: Complete items 1 end 2 when IIddltlonalservlcesare dellred, and compleht Items 3 and 4. Put your address In the "RETURN TO" spece on the I1MII"Ie side. Failure to do this will prevent this card fr being returned to you. ~'return rt!:eiPt fee will provide you the name of ~n I t nd t of . For eddftfol'llll fHI the 10l10Wl'ng IiMCii are ~MUI~ or .) for -*fltlonall8l'VJc:ela) ~. ~MId..il"tl....h... 2. 0 4. Article Number P 336 556 615 Type of ServIce:. '~. R....:~8 ." , iMuNC(' Certified COD Express Mall DOMESTIC RETURN RECEIPT . ~ . e .