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HomeMy WebLinkAbout2010 03 16 Regular 600 Orientation PresentationDate: March 16, 2010 The following presentation was shown to the Code Enforcement Board during Regular Agenda Item "600" by Attorney Kate Latorre on March 16, 2010: Winter Springs Code Enforcement Board Orientation ro !R �1 LZ 7 zti0-- � ; I6 BROWN, GARGANESE, 'IF WEISS & D'AGRESTA, P.A. The History and Purpose of the Board • Quasi- Judicial body enabled by Chapter 162, Florida Statutes, enacted in 1980 • Prior to 1980, there was no general law authorizing code enforcement boards, although by the 1970's, both Palm Beach County and City of West Palm Beach had authorization by special acts of the Legislature creating such boards • Code Enforcement Boards meant to provide an equitable, expeditious, effective and inexpensive method of enforcing codes and ordinances. • The Board is authorized to: Impose administrative fines Impose noncriminal penalties Imo' BROWN, GARGANESE, '10F WEEIS S & U AGR ESTA, P.A. Board Organization • Chapter 162, Florida Statutes, requires that Code Enforcement Board consist of 7 members • City Commission may also appoint 2 alternate members to serve in the absence of regular Board members • A City Commission may, at its discretion, create or abolish one or more Code Enforcement Boards • City Commission is required to provide clerical /administrative personnel to the Enforcement Board as may be reasonably required for proper performance of its duties ,AL, BROWN, GARGANESE, P WEISS & UAGRESTA, P.A.; Requirements for Board Appointment • All Enforcement Board members must be residents ( not e tustproperty owners of the jurisdiction covered by the Enforcement Board • The above requirement is a continuing requirement, as a resident must be a resident at time of appointment and continuing throughout such service • The statute also encourages (not requires) that whenever possible, the Enforcement Board include an architect, business person, engineer, general contractor, subcontractor and realtor • When not in conflict with the provisions of Chapter 162, Florida Statutes, members also subject to Winter Springs requirements for appointed board members set forth in section 2 -42 of the City Code IIk BROWN, GARGANESE 1 4PF - W ISS & UAGRESTA, P.A. Rules Governing Conduct of Board Members • Conduct of Board members is regulated and governed by Chapter 162, Florida Statutes, applicable law and ordinances of the local governing body • Board members may be removed or suspended for cause as provided by state law or local ordinances • Florida law provides that If any Board member fails to attend two (2) of three (3) successive meetings without cause and without prior approval of the chairman, the Enforcement Board shall declare the member's office vacant and the local governing body shall promptly fill the vacancy ,A6, BROWN, GARGANESE 'IP' WEISS & UAGRESTA, P.A. Rules Governing Conduct of Board Members (continued) • Calling a Hearing: — The Board Chairman may call a hearing upon the request of a Code Inspector — Written Notice signed by 3 members of a 7 members • A quorum must be present in order to meet and conduct business • Four (4) members constitutes a quorum — If there is an unfilled vacancy on the Board, the statute does not provide for a reduction in the quorum requirement; however, recall that the local governing body has discretion to appoint 2 alternate members • All findings by the Board must be approved by a majority of those members present and voting • Except at least four (4) members must vote in order for the action to be official • Difficulties may arise if only four (4) members are present and one (1) member abstains from voting IL, BROWN, GARGANESE 1 4 OF WEISS & UAGRESTA, P.A. Legal Representation • § 162.05(5), Florida Statutes does not mandate that the governing body provide and fund legal counsel to the Code Enforcement Board, but states that the local governing body's attorney can either represent the Board, or the local government before the Board (staff), but not both • In no case shall the local government attorney serve in both capacities as legal counsel for the prosecutor (Code Inspector) and the judge (Board) ,A6, BROWN, GARGANESE, 1 4FF WEI S & UAGRESTA, P.A. Board Powers • General Powers § 162.08 specifies the Board's powers and includes: — The adoption of rules for the conduct of hearings; — Subpoena power to subpoena alleged violators and witnesses to the hearings; — Subpoena power to subpoena evidence to its hearings — Taking testimony under oath; and — Issuing orders having the force of law to command whatever steps are necessary to bring a violation into compliance — Powers not exclusive — other powers implied (e.g. demolition; extension of time to comply) • Lack of Prosecutorial Power The Board and it members are precluded from initiating prosecutorial actions. While a Board member may report an alleged violation to the Code Inspector, the notification must be made in the member's private capacity. k BROWN, !GARGANESE 'jPF'WT1SS & UAGRESTA, P.A. General Procedures of the Board • Courtesy notice of violation issued by Code Inspector; property owner given reasonable time to comply • If no compliance within set timeframe, Code Inspector issues a Statement of Violation/Notice of Hearing • At the hearing, Code Inspector presents evidence and testimony of violation; violator given opportunity to present evidence and testimony; Board may ask questions to gather additional information • Board serves as the judge of facts; determines sufficiency and competency of evidence • Board issues order including "Findings of Fact /Conclusions of Law" which give violator specified amount of time to bring property into compliance and establish the penalty imposed in the event compliance is not attained • If compliance is attained within the requisite timeframe, the Code Inspector will issue an Affidavit of Compliance and the case is closed. ,A6, BROWN, GARGANESE ' F WEISS & UAGRESTA, P.A. General Procedures of the Board (continued) • If compliance is not obtained in the requisite timeframe, the Code Inspector shall schedule a "Compliance Hearing" (aka "Massey hearing ") before the Board • Violator shall receive notice of compliance hearing • During compliance hearing, Code Inspector presents evidence of continued non - compliance • Violator given opportunity present evidence and testimony • Board renders order finding property in compliance or non - compliance • Upon a finding of non - compliance by the Board, the Board's order will be recorded in the public records of the county and shall constitute a lien against the real property. • Orders imposing daily fines shall continue to accrue until compliance is attained. Imo' BROWN, GARGANESE, 'I pr V TISS & UAGRESTA, P.A. Penalties • Fine not to exceed $250 per day /per violation for the first violation or not to exceed $500 per day /per violation for a repeat violation • "Repeat Violation" is defined as a violation by a person who has been previously found "guilty" or who has admitted "guilt" when the violation is of the same ordinance provision within a five -year period and even though the violations occur at different locations. (Same violation by same violator within 5 years) • If the Board finds the violation to be irreparable or irreversible, the Board may impose a fine not to exceed $5,000 per violation • The Board may impose all costs of reasonable repairs made by the City if the violation/condition presents a serious threat to the public health, safety and welfare or is irreversible /irreparable in nature. L, BROWN, GARGANESE, NqF WEISS & UAGRESTA, P.A. Satisfaction or Release of Lien • Recorded Code Enforcement Board Orders constitute liens against real property • § 162.09(3), Florida Statutes, provides that the lien runs in favor of the local governing body (City Commission) which can execute a satisfaction or release of lien. • Section 2 -61.5 of the City Code authorizes violators to seek satisfaction or release of a Code Enforcement Board lien. • Generally, liens can be satisfied and released 2 ways: — Full Payment of Lien — City Manager authorized to execute and record a satisfaction of lien Application for Satisfaction or Release of Lien — violator must submit application to community development director along with application fee hL BROWN, GARGANESE, _WTISS & UAGRESTA, P.A. Satisfaction or Release of Lien (continued) Applications for release or satisfaction required to contain certain information: — Case number; — Date property brought into compliance; — Facts upon which the violator relies to justify the reduction or forgiveness of the lien; — Terms upon which a satisfaction or release should be granted; — Reasons why compliance not obtained prior to penalty being imposed and lien being recorded; — Reduction in penalty or fine sought; — Any other information deemed pertinent to the request by violator Application executed under oath and sworn to in the presence of a notary With their application, violator required to submit reimbursement to the City for its costs associated with recording the lien. These costs are nonrefundable regardless of the outcome of violator's request for satisfaction or release of lien. I6 BROWN, GARGANESE, 'IPV WEISS & UAGRESTA, P.A. Satisfaction or Release of Lien (continued) Code Enforcement Board Review and Recommendation to Satisfy or Release Lien: — Community Development Director confirms that the violation is in compliance. — Application placed on the agenda for the next available regular Code Enforcement Board meeting. — The Code Enforcement Board reviews and considers application; — Considers testimony and evidence; — Makes recommendation to City Commission to approve, approve with conditions, or deny application for satisfaction or release of lien. — Code Enforcement liens run in favor of the City, not in favor of the Code Enforcement Board. — Only the local governing body of the City, i.e. the City Commission, has the authority to satisfy or release Code Enforcement liens. I6, BROWN, iGARGANESE ' jPF WEISS & UAGRESTA, P.A. Satisfaction or Release of Lien (continued) — In determining its recommendation to the City Commission, the Code Enforcement Board shall consider the following factors: • The gravity of the violation; • The time in which it took the violation to come into compliance; • The accrued amount of the code enforcement fine or lien; • Any previous or subsequent code violations; • Any financial hardship; • Any other mitigating circumstance which may warrant the reduction or satisfaction of the penalty or fine. ,A6 BROWN, GARGANESE IqFF WEISS & UAGRESTA, P.A. Satisfaction or Release of Lien (continued) City Commission Consideration and Decision to Satisfy or Release Lien — Following the Code Enforcement Board's recommendation, the application is scheduled for City Commission consideration during its next available regular meeting. — The City Commission may take action solely based upon the sworn application and the recommendation of the Code Enforcement board, as well as the information provided by the violator related to the application for release or satisfaction of the lien. — The City Commission may approve, approve with conditions, or deny the request for satisfaction or release of the lien. — City Commission not bound by recommendation of the Code Enforcement Board. — If approved, the satisfaction or release of lien is NOT prepared or executed until any remaining fine is paid and /or until conditions of approval are satisfied. BROWN, GARGANESE 'jPr'WT1SS & UAGRESTA, P.A. Satisfaction or Release of Lien (continued) — Violator then has 30 days to make payment and /or comply with the conditions. — Failure to comply with the conditions of approval results in the automatic denial of the application for satisfaction or release. — Denial of an application, or automatic denial due to failure to comply with conditions of approval, bars violator from applying for a subsequent reduction or forgiveness of the lien for a period of one (1) year from the date of denial. — During this one -year period, the lien may only be reduced or satisfied upon full payment of the fine or penalty imposed by the lien ,A6, BROWN, GARGANESE, ' P' WEISS & UAGRESTA, P.A. r A KN V. Quasi - Judicial Procedure Policies & Procedures Basic Due Process must be afforded. Due process requires that applicants /interested parties be provided: Notice of proceedings; Opportunity to be heard; Opportunity to present evidence; Opportunity to cross - examine witnesses; and Information of facts on which QJP Board acts. Evidence JP are not controlled by strict rules of evidence or procedure. J decisions must be supported by competent, substantial, evidence. ompetent, substantial evidence has been defined as: "evidence a reasonable ind would accept as adequate to support a conclusion ... [f]or the action to be ustained, it must be reasonably based in the evidence presented" Example of Competent, Substantial Evidence estimony of interested parties on relevant issues (must be more than bare r ti tions or objections); Expert testimony; Staff reports; Physical evidence, Muc a PA ' photographs, diagrams, drawings and plats. Record of Proceedings • The minutes of all QJP hearings must be recorded -can be a brief summary of the meeting. • Any person wishing a verbatim transcript or recording of a public meeting must ensure that such verbatim recording is made. ,Ak BROWN, GARGANESE 'JPF - W ISS & UAGRESTA, P.A. V. Quasi - Judicial Procedure Ex parte communications Ex parte communications are one - sided, off the record communications to a decision maker without notice to, or contestation by, an adverse party. Ex parte communications are discouraged; however, if such communication occurs, Board members should A � i� disclose such communication on the record. N VI. Voting Conflicts Elected & Appointed Officials Shall not vote upon any measure which would inure to: • his or her special private gain or loss; • special private gain or loss of any principal by whom he or she is retained; • special private gain or loss of a relative or business associate of the public officer. VI. Voting Conflicts Note the Distinction There is a kU distinction between elected and appointed officers when it comes to participation and disclosing the voting conflict issue. Elected Officers Appointed Officers Prior to vote officer should publicly state the nature of the interest. Within 15 days after the vote, disclose the nature the interest as a public record in a memo filed with the Clerk. Not prohibited from participating even if voting conflict exists. Prior to meeting officer should publicly state the nature of the interest through filing a written memorandum with the recording secretary. Prohibited from participating when voting conflict exists without first disclosing nature of interest in the matter. " "Participate" means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction. ,AL, BROWN, GARGANESE, 1 4FF WEI S & UAGRESTA, P.A. VI. Voting Conflicts Mandatory Abstention Requirements gettyima es ., For purposes of abstaining from voting, AA relative" and especial private gain" are defined as any: Father, mother, son, daughter, husband, wife, brother, sister, father -in -law, mother -in -law, son -in -law, or daughter -in -law Ex: No voting conflict for cousin " "SPECIAL PRIVATE GAIN" is almost always a financial interest that is directly enhanced by the vote in question; the financial gain must be direct and immediate and not remote or speculative. If there is a true conflict, a member must still abstain even if abstention results in preventing the local body from taking action on a measure k BROWN, GARGANESE, 'jPF'WT1SS & UAGRESTA, P.A. Government in the SUNSHINE LAW Section 286.011, Florida Statutes. • Florida's Government in the Sunshine Law provides a right of access to governmental proceedings at both the state and local levels. • All meetings of any board or committee where official acts are taken must be open to the public. 'A& FiRC7WN, GARCANESE 'IF WEISS & UAGRESTA, P.A. Government in the SUNSHINE LAw Scope The Sunshine Law requires : • Meetings of public committees be open to the public. • Reasonable notice be given. Minutes be taken. • The Sunshine Law is applicable to elected and appointed committees. • The Sunshine Law is applicable where two or more members of the same committee discuss a matter which will foreseeably come before the board for action. Purpose • Enacted to protect the public from "closed door" politics, construed for its purpose and effect. Interpreted in favor of the public. I6, BROWN,;GARGANEsE, 1 q "` '% 1 EE1SS & UAGRESTA, P.A. Government in the SUNSHINE LAW Agencies subject to the Sunshine Law • Any board or committee of any state agency, authority, county, municipal corporation, or political subdivision. • Advisory boards created pursuant to law, ordinance, established by public agencies, even though their recommendations are not binding upon the entities that create them. EXCEPT: Fact - finding committees, sole purpose info gathering. 6, BROWN, GARGAN'ESE F WEISS & D'AGRESTA, P.A. low Government in the SUNSHINE LAW Do's & Don'ts under the Sunshine Law Do's: • Gavel to Gavel: Discussion between Board members should only take place from the time the gavel begins the meeting until the time the gavel ends the meeting. • Registering the vote: Ensure that the vote is on the record and that there are no "secret" votes or ballot votes. Don'ts: • Don't discuss Committee business with other Committee members before the meeting; or after the meeting. • Don't discuss Committee business with other Committee members during recess. Generally: • Refrain from discussing any matter with any other member of the Committee outside of the meeting. Avoid "conduit" situations (communications through third parties). • One member the Committee may speak with a member of a different committee or board, so long as there is no "conduit." BROWN, GARGANESE, NIP VTJSS & UAGRESTA, P.A. Government in the SUNSHINE LAW Consequences for Failure to Comply Criminal- knowingly violating— suspension, removal, impeachment, & commits a misdemeanor in the first degree. Noncriminal: may be found guilty of a noncriminal infraction, < = $500. • Actions taken in violation are invalid, regardless of intent. • An initial violation may be cured — (full, open hearing reexamining and readdressing the issue with independent final action taken in the "Sunshine. ") ,Ak BROWN, GARGANESE, ' Mew WEISS & >UAGRESTA, PA. Public Records What is a Public Record? • 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 b a Ch. 119, F. S. Includes: voicemail, email, blog posts, etc. Kind of Records 9 LTMW • All municipal records - open to the public for inspection. (unless exemption exists). • Exemptions set forth in Chapter 119, Fla. Stat. • All materials made or received in connection with official business, used to perpetuate, communicate or formalize knowledge. • Includes: Computer records, election records, financial records, and personnel records are all subject to public inspection. ,A6, BROWN, GARGANESE, If exemption exists redact; remainder of document is open. V 1 4OF TISS & D'AGRESTA, P.A. Public Records Example of public records? • Letters /emails regarding City business. • Notes of Board member in connection with official City business used to perpetuate, communicate or formalize knowledge. Retention Period The State publishes various Retention Schedules that provide the time period that public records must be retained. These retention periods are not discretionary, and records may not be destroyed until the minimum retention period has been met. ,AL BROWN, GARGANESE 'IFF WEISS & UAGRESTA, P.A. IMh, BRQWN, GARCANE5E, ' P' WEISS & UAGRESTA, P.A. Questions /Answers