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HomeMy WebLinkAbout2007 08 21 Handout given by Assistant to the City Clerk August 21,2007 HAND OUT GIVEN BY MS. DANIELLE HARKER, ASSISTANT TO THE CITY CLERK, TO THE CODE ENFORCEMENT BOARD BEFORE THE REGULAR MEETING ON AUGUST 21, 2007. .. F.A. C.E. 18th ANNUAL CONFERENCE AND TRAINING SEMINAR "Keyholders to Improving Communities" . June 21-23, 2007 Code Board, Special Magistrate, & Attorney Training Robert L. Hamilton Presenter City Attorney Emeritus City of Orlando Presented in conjunction with The John Scott Dailey FLORIDA INSTITUTE OF GOVERNMENT at The University of Central Florida 36 West Pine Street, Suite 204 Orlando, Florida 32801 PHONE (407) 235-3960. FAX (407) 317-7750 - FLORIDA ASSOCIATION of CODE ENFORCEMENT, INC. LEVEL III LEGAL ISSUES IN CODE ENFORCEMENT - CODE ENFORCEMENT BOARD Prepared by Robert L. Hamilton, Esq. Adjunct Professor Florida Institute of Government University of Central Florida - - CODE ENFORCEMENT BOARD TABLE OF CONTENTS 1. The History and Purpose of the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 1 2. Board Organization ..................................................... 3. Multiple Boards ............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 4. Clerical and Administrative Personnel ...................................... 1 5. Requirements for Board Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 6. 7. 8. - 9. 10. 11. 12. 13. 14. a. b. c. d. e. f. - a. Residency Requirements ........................................... 2 b. Appointments bound by State and Local Laws .......................... 2 c. Diverse Occupation Request ........................................ 2 Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 Rules governing conduct of Board members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 Meeting Attendance Requirements ......................................... 2 Calling a Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 Quorum Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 V oting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 Legal Representation .............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 Travel, mileage and per diem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 The Board's Power General Powers .................................................. 3 Lack ofProsecutorial Power ........................................ 4 Power to Allow Additional Methods of Service ......................... 4 Power to Elect Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4 Power to Authorize Foreclosure of Lien ............................... 4 Must the Code Enforcement Board approve any Satisfaction or Release of Lien? .......................................................... 5 g. - h. 1. J. k. 15. 16. 17. 18. 19. 20. ...... 21. 22. 23. 24. 25. 26. Is the Board required to approve any waiver or reduction in the accrued fines? .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...5 Does the Board have the power to record the lien?. ......................5 Does the Board have the independent authority to investigate or determine whether a violator has complied with the order? . . .. .. ..5 Can the Code Enforcement Board order an abatement of a violation through some form of specific action, such as demolition of a building? . . . . . . 6 Does the Code Enforcement Board have to dismiss a case ifthe property is transferred between the time the initial notice was served and the time of the hearing? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Board's Role at the Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Necessity of a "Separate" Hearing Prior to Imposition of a Fine ad Lien. . . . . 7 Liens and Foreclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Liens on Homestead Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Service of Process (General) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Service of Process under Chapter 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Dual Office-Holding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Ex Parte Communications; Quasi-Judicial Proceedings. . . . . . . . . . . . . . . . . . . . . .18 Public Records Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Government in the Sunshine Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Conflicts of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Financial Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 APPENDIX: Chapter 162, Florida Statutes ---- Updated 6.06 CODE ENFORCEMENT BOARD ~ L Tbe History and Purpose of the Board. The Code Enforcement Board is a quasi-judicial body whose creation is enabled by Chapter 162, Florida Statutes, which was enacted into law by the Florida Legislature in 1980. Prior to 1980 there was no "general law" authorizing such Boards although in the late 1970's Palm Beach County and the City of West Palm Beach secured passage of "special acts" of the Florida Legislature whereby such Boards were created in those jurisdictions. The Board is authorized "... 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." Section 162.02. The Board functions as a panel to hear the facts and determine, under the law, whether or not the alleged violator committed the alleged violation. The role ofthe Board is to adjudicate cases that are presented by a Code Inspector. This limitation on the function ofthe Board is also reflected in Section 162.06(1) which states "... no member of a board shall have the power to initiate such enforcement proceedings." The 1999 legislative amendments provided that a special master has the same status (power and authority) as a Code Enforcement Board under Chapter 162. Section 162.03(2). - 2. Board Or~anization. The statute requires that any Enforcement Board consist of seven members. However, a jurisdiction with a population less than 5,000 persons has the option to appoint a five-member board. For a jurisdiction of 5,000 persons or more, the option is not allowed by statute and a seven-member board is required. The local governing body, however, has the option to appoint up to two alternate members for each Code Enforcement Board. Section 162.05(1). 3. Multiple Boards. A local governing body (City CounciVCounty Commission) may, at its discretion, create or abolish one or more Code Enforcement Boards. Sections 162.03(1) and 162.05(1). The local governing body may also appoint up to two alternate members for each board to serve in the absence of "regular" board members. Section 162.05(1). 4. Clerical and Administrative Personnel. Clerical and administrative personnel are required to be provided to the Board by the local governing body"... as may be reasonably required by each Enforcement Board for the proper performance of its duties." Section 162.07(1). ~ -1- 5. Requirements for Board Appointment. a. Residency Requirements. - All Enforcement Board members must be residents of the jurisdiction covered by the Code Enforcement Board. Section 162.05(2). This is a continuing requirement (i.e., a resident not only at time of appointment, but continuing throughout such service.) b. Appointments bound by State and Local Laws. Chapter 162 states that appointments to the Board shall be made in accordance with any applicable laws and ordinances "... on the basis of experience or interest in the subject matter jurisdiction ... II ofthe Board. Section 162.05(2). c. Diverse Occupation Request. The statute also contains an encouragement (not requirement) that the Code Enforcement Board "... shall whenever possible, include an architect, businessman, engineer, general contractor, subcontractor, and a realtor." Section 162.05(2). 6. Terms. The statute provides that the initial terms for either a five- or seven-member board be staggered, ranging from one- to three-year terms. Section 162.05(3)(a) and (b). After the initial appoint- ment, all terms are for three years. Section 162.05(3)(b). - 7. Rules eoverning conduct of Board members. The conduct of Board members is regulated and governed by Chapter 162, applicable state law and ordinances of the local governing body. Section 162.05(3)(f). Members may be removed or suspended for cause as provided by state law or local ordinances. If a local ordinance governing conduct is in conflict with a statute, the more restrictive will generally govern, unless the statute clearly preempts any and all local regulation. 8. Meeting Attendance Requirements. Section 162.05(3)(e) states that if any member "... fails to attend two of three 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 such vacancy. II 9. Calling a Hearing. The Chairman may call a hearing upon the request of a Code Inspector. A hearing also may be called by written notice signed by three members of a seven-member Board or two members of a five-member Board. Section 162.07(1). -- -2- N Quorum Requirement. - In order for the Board to meet and conduct business, a quorum must be present. Pursuant to Section 162.05(4), a quorum is at least four members of a seven-member board, or at least three members of a five-member board. Ifthere is an unfilled vacancy on either Board, the statute does not provide for a reduction in the quorum requirement. Remember, however, the local governing body has the discretion to appoint two alternate members. These alternate members can and should be used when necessary to meet the quorum requirement. l.L Voting Requirements. All findings by the Board must be "... approved by a majority of those members present and voting, except at least four members of a seven-member enforcement board, or three members of a five-member board, must vote in order for the action to be official." Section 162.07(4). The "except" portion of Section 162.07(4), above, can present difficulties where only the minimum number of a quorum is present and one of the quorum has to abstain due to a conflict of interest. In such an incident, no official action can occur until the necessary votes are cast, either four or three. For example: If only four members of a seven-member board are present at the meeting, one member abstains, and all three of the remaining present members vote in favor, 3-0, the action cannot pass because four votes were not cast, even though the fourth vote would not have altered the outcome. 12. Legal Representation. "-" Section 162.05(5) does not mandate that the governing body provide and fund legal counsel to the Code Enforcement Board. The section merely states that the local governing body's attorney can either represent the Board or represent the local government before the Board, but not both. In no case shall the local government attorney serve in both capacities (as attorney for the Board and as a prosecuting attorney). 13. Travel, Mileage and Per Diem. Section 162.05(4) states that board members may be reimbursed for travel, mileage, and per diem expenses as may be authorized by the local governing body. 14. The Board's Power a. General Powers. Section 162.08 specifies the Board's powers to include: 1. the adoption of rules for the conduct of the hearings; - 2. subpoena power to subpoena alleged violators and witnesses to the hearings (subpoena ad testificandum); -3- 3. subpoena power to subpoena evidence to its hearings (subpoena duces tecum); 4. taking testimony under oath; and, - 5. issuing orders having the force oflaw to command whatever steps are necessary to bring a violation into compliance. These powers are not exclusive. There are other powers which are either outlined or implied in Chapter 162 which govern and limit the actions of the Code Enforcement Board. For example, since the Board is quasi-judicial in nature and function, it has the implied power to entertain motions for extension of time or 'rehearing or reconsideration or reduction of penalty (and to grant such motions). Also, the Board would appear to have the power to order demolition (see Section j, infra). None of these powers are specifically mentioned in Section 162.08. b. Lack of Prosecutorial Power. The Code Enforcement Board and its members are precluded from initiating prosecutorial actions. Section 162.06(1). While a statutory requirement, it also is a prohibition which is grounded in fundamental due process. However, a Board member may report an alleged violation to the Code Inspector. The notification must be made in the member's private capacity. c. Power to Allow Additional Methods of Service. "-"" The Board has the option to allow notice by publication or posting in certain circum- stances in addition to service by mail or hand delivery. Section 162.06(2) and 162.12(2). d. Power to Elect Chairman. "The members of an enforcement board shall elect a chairman, who shall be a voting member from among the members of the board." Section 162.05(4). The chairman is only elected or designated by a vote of the Code Enforcement Board, not the City Council or the County Commission. e. Power to Authorize Foreclosure of Lien. An apparent power is contained in Section 162.09(3). "After 3 months from the filing of any... lien which remains unpaid, the enforcement board may authorize the local governing body attorney to foreclose on the lien." This language poses several questions which go to the heart of the powers of the Code Enforcement Board vis a vis the local governing body, namely: Q: Does "may authorize" confer discretionary powers on the Code Enforcement Board? --- -4- Q: Does this language allow the Code Enforcement Board, which earlier approved a lien, to withhold authorization to the local governing body attorney to foreclose on such lien? --- f. Must the Code Enforcement Board approve any Satisfaction or Release of Lien? Section 162.09(3) provides that the lien runs in favor of the local governing body (the City Councilor County Commission) which can execute a satisfaction or release of lien. See AGO 98-40 and AGO 98-50. g. Is the Board required to approve any waiver or reduction in the accrued fin es ? Section 162.09(2)(c) states that "An enforcement board may reduce a fine imposed pursuant to this section." Q. Does that language preclude a local governing body from administratively reducing the accrued fines in settlement of a Code Enforcement Board case? Q. Is the intent of Section 162.09(2)(c) to confer an exclusive province to reduce or waive fines in "any settlement" or "deal" to the Code Enforcement Board even though the settlement was negotiated between the violator and the local governing body? "-'" According to the Florida Attorney General (in AGO 98-40), since the lien runs in favor of the "local governing body" and this body has the power to satisfy or release a lien, it also has the power to reduce or satisfy the fine. h. Does the Board have the power to record the lien? The statute does not explicitly state that the Code Enforcement Board has the authority or duty to record the lien in the public records. The statute merely states that "A certified copy of an order imposing a fine may be recorded in the public records and thereafter shall constitute a lien." Section 162.09(3). Q. May either the local governing body or the Code Enforcement [Board (through the Secretary) record the lien? i. Does the Board have the independent authority to investigate or determine whether a violator has complied with the order? "-'" If the Code Inspector notifies the Board that an order has or has not been complied with, the Code Enforcement Board does not appear to have the authority to sua sponte (by itself) verify whether compliance has been reached or that non-compliance continues. The statute appears clear that in the determination of compliance or non- compliance, the Board is dependent on the Code Inspector's determination -5- The language in Secti~n 162.09(1) states that the Board "upon notification by the code inspector that an order of the enforcement board has not been complied with by the set time ... may order the violator to pay a fine." This language appears to suggest that the Board has no independent authority to determine compliance. '-' Notwithstanding the above, in all factual determinations or conclusions presented by the Code Inspector to the Code Enforcement Board, the Code Enforcement Board can accept or reject the Code Inspector's testimony. Likewise, when the statement is presented that the alleged violator has not complied with the code, the Code Enforcement Board may accept or reject the Code Inspector's determination. j. Can the Code Enforcement Board order an abatement of a violation through some form of specific action, such as demolition of a building? Section 162.09(1) only references the authority of the Code Enforcement Board to impose fines if the violation continues. However, Section 162.08(5) states that the Board has the authority to "issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance." This language would appear broad enough to authorize demolition ifthe circumstances warrant. k. Does the Code Enforcement Board have to dismiss a case if the property is transferred between the time the initial notice was served and the time of the hearing? '-' No. As part of the 1999 legislative amendments, a new subsection (5) was added to Section 162.06 which requires certain disclosures by the transferring owner to the transferee/new owner pertaining to the pending code enforcement proceeding. If the required disclosures are not made before the transfer, a rebuttable presumption of fraud is created! More importantly, the new subsection (5) provides that, if the property is transferred before the CEB hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable time to correct the violation before the hearing is held. 15. The Board's Role at the Hearing. At the hearing, the Board serves as the judge of the facts. The Board also determines the sufficiency and competency of evidence. The Board's role at the hearing is to insure that a fair and impartial hearing is granted to the alleged violator as well as to the Code Inspector. The Board's role is to make certain "Findings of Fact and Conclusions of Law" as to the alleged violation. ~ If the Board finds a respondent "guilty", the Board must set a time for compliance with the Board's Order and the amount of fine to be imposed, failing such compliance with the Board's order. The Board may impose a fine not to exceed $250 per day/per violation for a first violation or not to exceed $500 per day/per violation for a repeat violation. -6- ~ "Repeat Violation" is defined in Section 162.04(5) as a violation by a person who has been previously found" guilty" or who has admitted "guilt" in a Code Enforcement Board, special master, or county court proceeding (notwithstanding that adjudication may have been withheld) when the violation is of the same ordinance provision within a five-year period and even though the violations occur at different locations. In other words, SAME violation by SAME violator within five years! lfthe Board finds the violation to be irreparable or irreversible (i.e., cutting down a tree or discharging hazardous material into a storm drain), the Board may impose a fine not to exceed $5,000 per violation (not per day.) The 1999 legislative amendments provided for a "super fine" if the City Council/County Commission (in a City/County with a population of 50,000 or more) enacts an ordinance authorizing same. Such enactment must be by a "super majority" of the City Council/County Commission (majority plus one.) Such "super fines" cannot exceed $1,000 per day/per violation for a first violation; $5,000 per day/per violation for a repeat violation; and $15,000 per violation (not per day) for an irreparable/irreversible violation. Finally, the Board may impose additional fines to cover all costs incurred by the City/County in enforcing its codes against the particular violator ("costs of prosecution") and all costs of reasonable repairs made by the City/County if the violation/condition presents a serious threat to the public health, safety and welfare or is irreparable/irreversible in nature. Section 162.09(1). 16. The Necessity of a "Separate" Hearin~ Prior to Imposition of Fine and Lien. In Massey and Massev v. Charlotte County. Case No. 2D02-389, opinion filed Feb. 7, 2003, ~ 2003 WL 255453 (Fla. 2d DCA 2003), the Masseys received notice of, and attended, a Code Enforcement Board hearing where they were found in violation of the county building code because they failed to secure necessary permits before constructing improvements on their property. The Board's order provided for a $100.00 per day fine for each day of non-compliance with the Board's order and further advised that a fine may become a lien on the property pursuant to Section 162.09, Florida Statutes. Subsequently, an "affidavit of noncompliance" (with the Board's order) was submitted to the Board asking that the fine be imposed. There was no indication in the affidavit that it was served on the Masseys. By motion, seconded and passed unanimously, the fine was approved at a subsequent Board meeting, following which an "Order Imposing Penalty/Lien" was issued. As found by the Court, this Order" did not indicate any avenue by which the Masseys could challenge the validity of these fines or the imposition of the lien". The Court also noted that "it is undisputed that the Masseys did not receive notice or an opportunity to be heard before entry of this Order." ~ The Court noted that after the lien is imposed and recorded, the statute (Chap. 162) does not expressly provide for any further process before the Board. The Court found that "the Code Enforcement Board entered the lien order based solely upon the code inspector's affidavit" and that the "Masseys were not provided notice of the meeting at which the propriety of the fines and lien were addressed or any opportunity to be heard at the meeting or thereafter". -7- ~ The Court opined that no case law had been found which addressed whether the procedures required by Chapter 162 comport with the principle of due process. The Court concluded that, under the facts of the case, the Masseys had not been afforded constitutionally-guaranteed procedural due process (and quashed the order of the circuit court affirming the order of the Code Enforcement Board.) Although the Court did not mandate any specific procedure that the Code Enforcement Board must follow, it held that such procedure must "provide the property owner with notice and opportunity to be heard concerning any factual determination necessary to impose a fine or create a lien. " In this regard, in Footnote 3, the Court offered an example of such a procedure as follows: The Code Enforcement Board could mail the "order imposing penalty/lien" to the property owner with a notice that the owner could request a hearing to challenge the fine and the resulting lien within twenty days from the date of the order. The notice could explain that the lien order would be recorded after twenty days unless the property owner filed a timely request for hearing. Presumably, the hearing would be limited to a consideration of only those new findings necessary to impose an appropriate fine and create a lien. 17. Liens and Foreclosure. A. HOW DO CODE ENFORCEMENT BOARD LIENS COME INTO EXISTENCE? ~ 1. The Code Inspector generally sends the Violator a courtesy notice advising the Violator of Code violations and giving the Violator reasonable time to correct these violations. 2. lfthe Violator fails to correct the violations, the Code Inspector sends the Violator a "Statement ofViolationl Notice of Hearing" which sets forth the time and date the Violator must appear before the Code Enforcement Board. 3. At the hearing, the Code Enforcement Board issues "Findings of Fact, Conclusions of Law and Order". This document informs the Violator that he must bring the property into compliance by a specified date or a fine may be imposed. 4. When the time expires to correct the violation, the Code Inspector again visits the property to determine ifthe property is in compliance. 5. If the property is found to be in compliance, the Code Inspector signs an "Affidavit of Compliance" and the case is closed. If the property is not in compliance, the Code Inspector signs an "Affidavit of Non-Compliance. " The Code Enforcement Board Recording Secretary then prepares an Order imposing a lien on the property (the "Order") which is signed by the Code Enforcement ...... -8- - Board Chairman and sent to the County for recording in the Public Records. 6. If the Violator fails to come into compliance, a certified copy of the Order is recorded in the Public Records, which Order constitutes a lien on the land where the violation exists and upon any other real or personal property owned by the Violator. 7. The fine continues to accrue until the Violator comes into compliance or until judgment is rendered in a suit to foreclose the lien. 8. If the lien has been filed for three (3) months and remains unpaid, the City or County may foreclose the lien. 9. Many times a new buyer of the property will ask the City or County to waive these liens. B. FACTORS TO CONSIDER IN FORECLOSURES ~ ~ Once the lien remains unpaid for three (3) months, the City or County may foreclose the lien. There are both statutory and practical limitations on this foreclosure process which are discussed below. 1. Homestead. The Florida Constitution prohibits foreclosure on real property which is homestead, which in simple terms is an owner-occupied house. This prohibition is again reiterated in Chapter 162, Section 162.09(3). The few exceptions to this "non- foreclosure" rule include liens for taxes and assessments and "consensual liens" (such as mortgages). Additionally, Article X, Section 4 ofthe Florida Constitution provides an exemption from" . .. forced sale under process of any court. . . a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon. . . . " (Emphasis added.) 2. Superior Encumbrances. Although a junior lien holder has the right to foreclose, practical reasons may exist so that the junior lien holder may not want to exercise this right. Generally speaking, a foreclosing lien holder can foreclose only those interests junior or inferior to the foreclosing lien holder's interest and will take subject to those interests superior to his position. If the City or County forecloses and takes the property subject to these superior interests, then the City or County has to payoff these interests in full. Superior interests generally include those interests recorded prior in time to the City or County lien, but may also include interests recorded after the City or County lien if, by law, it is a "Super Priority" lien (such as taxes, purchase money mortgages, federal tax liens, etc.) Depending on the value of the property and the amount necessary to payoff these superior liens, this mayor may not make financial -9- ~ ~ sense. For example, if the total ofthe superior interests totaled $50,000.00 and the value of the property was $200,000.00, it may make sense to foreclose considering the equity in the property. (This is assuming the City or County actually wants to come out- of-pocket $50,000.00). If, however, the superior interests totaled $50,000.00 and the value of the property is only $45,000.00, it would not make sense to foreclose since the total payoff exceeds the fair market value of the property. 3. Taxes. Sometimes when property owners disregard the notices of Code violations and let the property exist in a state of disrepair, the property owner may also have neglected to pay property taxes. If the City or County decides to foreclose its lien on the property, the City or County [if the new property owner] will be responsible for paying any back property taxes. 4. Condition of the Property. The property may be in such bad condition, the City or County would not generally want the prop- erty or because of budget constraints it would not be feasible to fix the property or demolish it. 5. Commercial Property. In a few cases, the property owner owns a commercial building and has leases with several tenants. Ifthe City or County elects to foreclose and take title to the property. It may be necessary for the City or County to hire property managers to oversee these properties, manage the tenants, collect the rents, maintain the building, and generally act as a landlord. 18. Liens on Homestead Property. In Wendy Fong vs. Town of Bay Harbor Islands, Case no. 3D02-3097, Third District Court of Appeal, December 24,2003 (found at 29 Fla. L. Weekly D55), the town instituted code enforcement proceedings against Ms. Fong's homestead property in early 2000, and in September, 2000, a special master ruled that continuing violations existed. The town filed a foreclosure suit. The trial court held that, although the town could not then foreclose on the homestead property, the lien could remain on said property (and could be satisfied from the sale of the property or if the property ever lost its homestead status.) The Third District Court of Appeal reversed, saying: As Article X, Section 4, specifically provides, it applies alike to invalidate both a 'forced sale' or, as here, the simple imposition of a 'lien' on homestead property. ~ -10- 19. Service of Process (General). - 1. "Process" is a formal document, authorized by law, commanding a person to do something or refrain from doing something. 2. Types of Service of Process: a. Personal - physical delivery to the respondent. b. Substituted - delivery to a person other than the respondent, as agent for the respondent. c. Constructive - by publication in a newspaper or posting the property. 3. Personal Service: a. Delivery of a copy of the document (including "drop" service) to the person to be served, whether at his resident or place of business or any other place where you have a lawful right to be. b. Leaving a copy of the document at the person's usual place of abode (a place of resident -- not a business office) with any person residing there (not a visitor) who is over age 15. - c. If you know the respondent is present inside a dwelling but he won't answer the door, identify yourself and the nature of the process you have and then leave the copy at the door, telling the person where you left the paper. d. If you believe the respondent is present in a dwelling or in a condo unit where you must first telephone to gain admittance and you can get the respondent to identify himself on the phone, do as in c. above. 4. Service on Partnerships and Limited Partnerships a. Partnership - Serve any partner. Service on one partner is as valid as if served on each individual partner. b. Domestic Limited Partnership - Serve on any general partner or on the agent for service of process specified in its Certificate of Limited Partnership. If a general partner cannot be found in this State and service cannot be made on an agent because of failure to maintain an agent or because the agent cannot be found or served with the exercise of reason- able diligence, service may be effected by service on the Secretary of State as agent of the limited partnership. See Office of Legal Affairs for further guidance. ~ -11- c. Foreign Limited Partnership - Service on any general partner found in the State or on any agent for service of process specified in its Application for Registration. If a general partner cannot be found in this State and an agent for service of process has not been appointed or, if appointed, the agent's authority has been revoked or the agent cannot be found or served with the exercise of reasonable diligence, service of process may be effected by service upon the Secretary of State as agent of the limited partnership. See Office of Legal Affairs for further guidance. - 5. Service on Corporations Florida Statutes, 948.081 and 948.091, basically set forth two methods to serve a corporation. Florida Statute 948.091 requires corporations to designate a Registered Agent and Registered Office. Every corporation must keep the Registered Office open from 10:00 A.M. until 12:00 NOON, everyday but Saturdays, Sundays, and legal holidays, and must keep at least one (1) Registered Agent available during that time on whom process may be served. Florida Statute 948.081 provides that if service cannot be made on a Registered Agent because of failure to comply with 948.091, service of process shall be permitted on any employee at the corporation's place of business. "'--' Even though Florida law allows you to serve any employee if the Registered Agent is not available between 10:00 A.M. and 12:00 NOON, I would use this alternative in very few circumstances to avoid service problems. If the Inspector does serve an employee, the file should be well documented with an Affidavit that the Registered Agent was not available and why the employee was served. It would also be helpful to document the employee's position in the company to provide evidence that the person in that position would likely have passed the notice on to the appropriate person. Alternatively, 948.081 provides for service on the Officers of a corporation in the following manner: (a) On the President or Vice President, or other head of the corporation; (b) In the absence of any person described in paragraph (a), on the Cashier, Treasurer, Secretary, or General Manager; ( c) In the absence of any person described in paragraph (a) or (b), on any Director; or (d) In the absence of any person described in paragraphs (a), (b), or (c), on any Officer or Business Agent residing in the state. "'--' If you use this method, try to serve the President. If it is necessary to serve any other Officer, the file should be well documented (i.e. an Affidavit) that the Inspector asked for every person in the chain of command mentioned in the -12- ~ ~ Statute. For example, if the Inspector needed to serve a Director, that Inspector must specifically provide in an Affidavit of Service that the President, Cashier, Treasurer, Secretary, and General Manager were not available. If you fail to prove the exclusion of these people, the service on the Director would be invalid. 6. Service on Dissolved Corporations - Serve a director of the dissolved corpora- tion. Do not serve the registered agent. (Case law suggests that service on a registered agent of a dissolved corporation is invalid.) 7. Serving a Minor - by serving the parent or guardian or anyone else appointed by the court to represent the minor. If serving anyone other than the parent, include a copy of the court papers showing the person you served was duly appointed by the court. 8. Serving an Incompetent - by serving two (2) copies of the papers on the incompetent's guardian or any person who has care and custody of the incompetent. Include a copy of the court papers appointing the guardian. 9. Serving a Deceased Person - if the last owner of record is known to be deceased, all beneficiaries must be served. First, contact the Clerk of the Circuit Court, Probate and Guardianship Division, to see if a probate action has been filed; if yes, obtain a copy ofthe "Order of Distribution." If the file has been opened but no Order yet issued, obtain a copy of the "Determination of Beneficiaries" and "Appointment of Personal Representative." In either event, serve all ofthese people! 10. Certified Mail - Return Receipt Requested Florida law provides that certified mail, RETURN RECEIPT REQUESTED, is sufficient. Be sure to attach the "green card" with the original paperwork submitted to the Recording Secretary. lithe green car comes back signed by someone other than the respondent, you might take an extra step to determine who actually signed and their relationship to the respondent and/or property. Otherwise, the respondent may end up with a technical defense if the case goes to foreclosure. If the green card does not come back, then you may call the respondent and ask him ifhe got the paperwork. If the answer is yes, then fill out an Affidavit with details of the conversation and include the affidavit and the slip that shows you sent the certified letter to the post office with the original paperwork. 11. Multiple Owners of Property ~ Every owner of the property MUST have notice. Ifthe deed has wording such as "undivided interest" or "Yz interest," that is your clue there are multiple owners. Serve all of them. -13- 12. Business Owner vs. Property Owner ~ Both persons should be served as respondents, and the order will go to both persons. The City or County cannot and will not get involved in landlord/tenant disputes! 13. Property Owner with Guardian/Personal Rep./Power of Attorney to Another The property owner MUST be served. Send a copy ofthe paperwork to the attorney, personal representative, guardian or holder of the Power of Attorney. 14. DO NOT SERVE PROCESS ON SUNDAY -- SERVICE IS VOID. REMEMBER -- DOCUMENT EVERYTHING!! 20. Service of Process under Chapter 162. The 1999 legislative amendments (which were effective October 1, 1999) partially changed the requirements for provision of notices required by Part I of Chapter 162 (pertaining to Code Enforcement Boards - not citations or notices to appear.) A careful reading of the "new" Section 162.12 is strongly advised. ...... Section 162.12(1)(a) authorizes certified mail, return receipt requested, and further provides that if such notice is sent to the property owner at the address listed in the Tax Collector's office (and at any other address given to the City or County by the owner) and the notice is returned as unclaimed or refused, then notice may be provided by posting and by first class mail with proof of mailing or affidavit of first class mailing. Section 162.12(1 )(b) authorizes hand delivery. Section 162.12(1)( c) authorizes leaving the notice at the violator's usual place of residence with a person who resides there and who is at least 15 years old. Section 162.12(1)(d) provides that, in the case of commercial premises, the notice can be left with the manager or other person in charge. Section 162.12(2) provides additional means of service, at the option of the Code Enforcement Board, by way of publication and posting as follows: a. Section 162.l2(2)(a) provides for publishing once a week for four consecutive weeks in a newspaper of general circulation in the county where the Board is located (if the newspaper meets the requirements of Fla. Stat. Chapter 50 for legal and official advertisements) with proof of publication as provided in Chapter 50. --- -14- b. In lieu of publication as described above, Section 162.12(2)(b) provides for posting of the notice for at least ten days prior to the hearing, or prior to the expiration of any deadline contained in the notice, in at least two locations -- one notice on the property in violation and one notice at City Hall (for municipalities) or the front door of the County Courthouse (for counties.) Proof of such posting shall be by affidavit which shall include a copy of the notice posted and the date and places of posting. ~ Section 162.12(2)( c) provides that notice by publication or posting may run concurrently with, or may follow, attempts to provide notice by hand delivery or by mail. Finally, Section 162.12 provides, in its last sentence, that evidence of an attempt to hand deliver or mail notice as provided in Section 162.12(1), together with proof of publication or posting as provided in Section 162.12(2), is sufficient to comply with the notice requirements without regard to whether or not the alleged violator actually received such notice. .~ ~ -15- 21. Dual Office-holding ~ Generally speaking, there are two rules governing dual officeholding: the dual officeholding prohibition as contained in the Constitution; and the common law rule which prohibits an officer from holding two incompatible offices at the same time. Since these are two separate and distinct rules, even if an "officer" does not violate the constitutional provision, the "officer" may still violate the common law rule, or vice versa. Below is a brief summary of these rules and examples of each. Article II, Section 5(a), Florida Constitution, provides in part: No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers. .~ This constitutional provision prohibits a person from simultaneously holding more than one "office" under the government of the state, counties and municipalities. Bath Club, Inc. v. Dade County, 394 So. 2d 110,112 (Fla. 1981). This prohibition applies to both elected and appointed officials (See, AGO-80-97) and does not require that both offices be within the same governmental unit. See, AGO-84-90 (mayor of a municipality prohibited from serving as a member ofthe V olusia County Health Facilities Authority). Although the constitution does not define the term "office" for the purpose of the dual officeholding prohibition, the Florida Supreme Court has given the following guidance in differentiating between "office" and "employment": The term "office" implies a delegation of a portion of the sovereign power and the possession of it by, the person filling the office, while an "employment" does not comprehend a delegation of any part ofthe sovereign authority. The term "office" embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract. An employment does not authorize the exercise in one's own right of any sovereign power or any presclibed independent authority of a governmental nature; and this constitutes, perhaps, the most decisive difference between an employment and an office. . . Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919). The nature of the powers and duties of a particular position determine if it is an "office" or "employment." For example, when a board or authority has been created to exercise a portion of the sovereign power of a municipality or county, the officers of the board or authority are generally "officers" for purposes of Article II, Section 5. Examples of "officers" on various ....... boards include: (1) Member of Architectural Review Board (AGO-80-97); (2) Member of Code Enforcement Board (AGO-81-61); (3) Member of Municipal Board of Adjustment (AGO-84- -16- 25); and (4) Member of Municipal Building Board of Appeals (AGO-86-1 05). Other examples of "officers" include the Mayor/Chairman of the Board of County Commissioners and the city/county manager. See, AGO-84-90 and AGO-80-97, respectively. - The prohibition against dual officeholding does not apply to persons in positions who merely exercise certain powers as the agents of government officers rather than having official powers in their own right. See, AGO-88-56 (deputy clerk was found to perform mostly ministerial duties of an assistant to the clerk of the circuit court rather than the duties of a true deputy which led to a conclusion of employment). Examples of "employment" include an assistant state attorney and a deputy tax assessor. See, AGO-71-263 and AGO-74-75, respectively. The dual officeholding prohibition contained in Article II, Section 5(a) does not apply where additional or "ex officio" duties are imposed on or assigned to a particular office or officer by the legislative body of a county or municipality and there is no conflict between the new and pre-existing duties. These new duties are viewed as an addition to the existing duties of the officer. Bath Club, 394 So. 2d at 112; and State v. Florida State Turnpike Authoritv, 80 So. 2d 337 (Fla. 1955). Even if the constitutional dual officeholding prohibition is not applicable to a particular situation, there is a common law rule which prohibits an officer from holding two incompatible offices at the same time. The underlying rationale for this common law rule is to assure not only the actuality of undivided loyalty, but also the appearance of undivided loyalty. See AGO 88-56 and Gryzik v. State, 380 So. 2d 1102 (Fla. 1st DCA 1980.) Incompatibility is said to exist where ~ ... in the established governmental scheme one office is subordinate to another, or subj ect to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another. ... If the duties of the two offices are such that when placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible. rd. at 1104. In interpreting this rule, the Attorney General's Office has stated that a conflict exists where one office is subordinate to another and subj ect in some degree to the supervisory power of its incumbents or where the incumbent of one has the power to appoint or remove or set the salary of the other. See, AGO-70-46. ...... -17- 22. EX PARTE COMMUNICATIONS: QUASI-JUDICIAL PROCEEDINGS. .~ In 1991, the Florida Third District Court of Appeal ruled on a case involving ex parte (private; one-on-one) communication. In this case involving Dade County, the communication was between a county commissioner and one of the parties to a quasi-judicial proceeding pending before the county commission. The Court held that such ex parte communication gives rise to a presumption that such contact was prejudicial to the "other side" and could lead to an invalidation of the ultimate county commission action/decision. The Florida Supreme Court refused to review this decision; therefore, the Jennings decision is the law of the State of Florida. See Jennings v. Dade County, 589 So.2d 1337 (Fla. 3rd DCA 1991); rev. den., 598 So.2nd 75 (Fla. 1992.) Later in 1991, the Florida.Fifth District Court of Appeal held in a case involving Brevard County that rezonings, variances, conditional uses, special exceptions, and other such proceedings are quasi-judicial in nature since they involve the interpretation of ordinances of general application to specific parcels of land and thereby limiting, restricting or regulating the use of such land. This decision was upheld by the Florida Supreme Court in 1993. See Board of County Commissioners of Brevard County v. Snyder, 627 So.2d. 469 (Fla. 1993.) --- As the term is used these cases, "quasi-judicial" generally means proceedings in which a public body makes decisions applicable to an individual or entity after hearing testimony and/or receiving other evidence. A matter will be quasi-judicial when a City or County Board is involved in a proceeding, the end result of which is to grant or deny some requested action (or to recommend to City Councilor County Commission the granting or denial of some requested action). Accordingly, Board members should not allow themselves to be "lobbied" by either "side" of an issue coming before the Board; whether by face-to-face meeting, by telephone conversation or by written communication. All such information must be presented to the Board sitting as a collegial body in the "Sunshine" where all persons can hear and see the same things at the same time. In 1995, the Florida Legislature passed enabling legislation whereby cities and counties may adopt ordinances which establish a process to "allow" such ex parte communications. See Fla. Stat. 286.0115. --- -18- 23. PUBLIC RECORDS LAW Chapter 119, Florida Statutes - BACKGROUND POLICY: A public record is subject to the examination and copying provisions of the Public Records Act unless a specific statutory (or other) provision applies which exempts the record. Two Main Questions: 1) Is the document (or item) a "public record?" Ifit is not, the Public Records Act does not apply. 2) Ifit is a public record, is it exempt? Ifit is exempt, then the examination and copying provisions do not apply. I. What is a Public Record? A. The Public Records Law defines what a public record is and gives examples (documents, papers, letters, maps, books, tapes, photographs, films, sound recordings such as City Councilor County Commission tape recordings or other material made or received pursuant to law or ordinance or in connection with the transaction of official business). ~ NOTE: It does include computerized records and electronic "mail." B. It does not cover material prepared as temporary drafts or notes (e.g., dictation tapes to a secretary, rough drafts of documents, and handwritten notes taken during interview sessions). BUT: lithe document is meant to perpetuate, communicate or formalize knowledge, it is a public record regardless of the fact that it is not in final form. EXAMPLE: Inter-office memoranda would be public records even if they ultimately do not become part of the agency's final "product" such as an ordinance, report, etc. KEY: It is not necessarily the form of the document but what it was used for that determines public record status. IkW The Florida Attorney General takes the position that any document circulated for review, comment or information is a public record despite being marked "preliminary or working draft" or with some similar label. See AGO 91-26. ~ -19- DON'T: Promise confidentiality to someone who submits something to you unless you are absolutely positive it is exempt from disclosure. - C. Further examples of Public Records: . Resumes/job applications (but not employment examinations) . Records of a city/county-owned and operated utility authority . Building plans and drawings received by a city or county . Working papers used in preparing a budget . Sound tape recordings of a public meeting even if written minutes are also available NOTE: The Public Records Act does not require you to tape meetings (or make records), just make them available for examination and copying (unless otherwise exempt) if you do. BUT: Other laws may require you to keep records (e.g., Sunshine meeting minutes). II. If it is a Public Record, is it exempt? POLICY: If a doubt exists as to the applicability of an exemption, it should be resolved in favor of disclosure. ...... A. Types of Statutory Exemptions (not comprehensive): 1. Questions and answers for license, certification or employment examinations 2. Active criminal intelligence and investigation information a. Must be related to an "ongoing" investigation b. No time limits (other than applicable statute of limitations) BUT: Agency must have a good faith and reasonable anticipation of securing an arrest, prosecution or detection of criminal activities. 3. Other Law Enforcement Records: ...... . Information on identity of confidential informants . Surveillance techniques . Identity of undercover personnel . Identity of victim of sexual battery or child abuse . Home address, telephone numbers, photographs of law enforcement, firefighter, code inspectors and code enforcement personnel, their spouses and children -20- - NOTE: The statute specifically sets out certain types of criminal intelligence and criminal investigative information which are not exempted (e.g., time, date and nature of a reported crime or arrest, etc.) and which, therefore, must be made available. ALSO: Internal affairs investigation complaints are confidential until the investigation is concluded or when the investigation ceases to be active without a probable cause finding. 4. Medical Records and Tests: Some types of employee medical record information (e.g., drug test results, employee assistance program records, medical records of employees who are emolled in agency group insurance plan, etc.) 5. Collective Bargaining Records Work product developed in preparation for negotiations. 6. Ride sharing participants. 7. Sealed bids or proposals until resolution of bid/proposal protest or within IO days after opening, whichever is earlier. - 8. Data Processing Software Must be obtained under a licensing agreement which prohibits disclosure and must meet the definition of "trade secret. " 9. Trade Secret Information As defined in F.S. 812.081, trade secret information is exempted from disclosure and covers more than data processing software previously discussed. 10. Discrimination complaints made to local government until a finding of probable cause is made or the complaint becomes inactive or part of a judicial proceeding. 11. Public records prepared by a Government attorney (including an attorney retained by the government) which reflects the attorney's litigation preparation (litigation strategy, theory, etc.) ~ This exemption in effect only to the end of the proceeding. - -21- B. Record With Both Exempt And Non-Exempt Material - Custodian must delete exempt portion and produce rest. NOTE: Custodian must also state basis for the exempt part. C. Procedural Issues . Local government claiming an exemption from disclosure bears the burden of pro oft hat it has the right to the exemption . If the records custodian claims an exemption, the custodian must state the basis of the exemption (including statutory citation) and, if requested, must give a written basis (with particularity) ofthe reasons why the record(s) is/are contended to be exempt. NOTE: If you receive correspondence/documents at home dealing with City/County matters, these items are more likely than not public records and you, as custodian, may well be subject to the inspection requirement at your home. III. Problem Areas ~ A. Advisory Boards . Are subj ect to Public Records Act if they" act on behalf of the public agency" CD Public or private groups acting in an advisory capacity to a public board or commission may be covered EXAMPLES: volunteer fire department; personnel screening committee; private engineering firm performing services for a city/county as the city/coWlty engmeer; Hypothetical: Can you send your public records to a "private" group, consultant, etc., and thus shield them from the Public Records Act? Answer: Most likely not, especially if demand is made on the proper City/County custodian. BUT: Merely contracting with a local government does not automatically subject a corporation or group to the Act. (It must perform an essentially governmental function or participate in the decision-making process. ) .~ EXAMPLE: Private corporation raises/disburses only private funds with no delegation of governmental responsibilities or functions is probably not subject to Act. -22- HOWEVER: Opposite result may occur ifpublic funds are expended by "private" group. - SOLUTION: The Florida Supreme Court now uses a "totality of factors" approach which examines the creation, funding, regulation, decision-making process, governmental function and goals of the process to determine if a private organization is subject to the Act. B. P arty Requesting Records ........ The Custodian: . cannot demand that the party be a citizen I) cannot demand that party show a "special interest" in records (allows "fishing expedition") . cannot refuse records because the party may then sue the local government (using the records) . cannot impose an "automatic delay" (e.g., 24 hours) on a request (if records can then and there be made reasonably available) . cannot require the party to make a demand in person (versus over the telephone) . The demand need only be sufficient to identify records so they can be produced . The demand must be made on the custodian (person who maintains the office having the records) EXAMPLE: City/County Clerk, City/County Attorney, etc. C. Fees: 1. A fee cannot be charged for merely inspecting public records. BUT: When the nature or volume of records to be inspected will require extensive information technology resources or government supervisory assistance, then you can charge a "special service charge. " ~ The fee must be reasonable and based on actual cost incurred of servIce. ~ The Attorney General has said this function (access to public records) should not be a profit-making or revenue-generating operation. See AGO 85-03 2. A fee can be charged for duplicating records in an amount as required by law or ifnot prescribed, then as set out in the Public Records Act. ~ -23- a. Must be "actual cost of duplication". Defined as: 1) cost of materials; and 2) supplies used to duplicate the record, but not labor costs or overhead costs such as utilities). - BUT: As discussed above, if extensive technology must be used or extensive government supervisory assistance is required, then a "special service charge" can be imposed. b. Sales tax is not charged on fees for duplication of public records. c. Persons bringing their own copying machine should be allowed to plug into the local government's electrical supply. IV. PenaltiesIRemedies A. A public officer who lmowingly violates the inspection and examination parts of the law faces the following: 1. Possible suspension and removal or impeachment; and 2. Possible conviction of a first degree misdemeanor (up to one year in prison or $1000 fine or both). ...... B. A public officer who violates any part of Chapter 119 can be found guilty of a noncriminal infraction (fine not exceeding $500) C. The law allows civil suit to be filed to enforce its provisions . The suit is given priority over other pending cases on the docket. . If a court orders document(s) made available, it must be complied with within 48 hours (unless otherwise ordered by the Circuit Court or Appellate Court). . Reasonable attorneys' fees and costs may be assessed against the local government body if it is determined that it unlawfully withheld a document. NOTE: Cases have stated that attorneys' fees are recoverable even where the local government acted in good faith (but was mistaken) in denying access to a public record. See News and Sun-Sentinel Company v. Palm Beach County, 517 So.2d 743 (Fla. 4th DCA 1987) and WFTV, Inc. v. Robbins, 625 So.2d 941 (Fla. 4th DCA 1993.) ...... -24- _. Other cases established a more lenient standard for private entities that unsuccessfully defend a suit under the Act. See New York Times Company v. PHH Mental Health Services Inc., 616 So.2d 27 (Fla. 1993) and Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996.) I@" While the civil suit is pending, the custodian is not allowed to transfer, alter, destroy or dispose of the record(s) in question. V. Records Retention Local governments must establish a program for disposal of records in accordance with retention schedules set up by the Department of State (Division of Library and Information Services). REMEMBER This outline is not exhaustive in its coverage; and, further, the Florida Public Records Act is regularly amended by the Florida Legislature and interpreted by the courts. It is strongly suggested that the City/County Attorney's Office be consulted before Public Records Act issues are decided. "-" "-" -25- 24. GOVERNMENT IN THE SUNSHINE LAW Section 286.011, Florida Statutes 1. Basic Provisions - Section 286.011 (1) provides that: "All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, 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." II. What constitutes a "board or commission"? A. All governing bodies and decision making committees. B. Advisory boards that are more than mere fact-finders. A public body cannot escape the application of the Sunshine Law by delegating ajob to an "alter ego." Advisory boards with "decision-making" functions (i.e., screening applicants for an appointed position) are subject to the Sunshine Law. The courts focus on the nature ofthe act performed in determining whether a board is decision-making or merely fact-finding. - III. What constitutes a "meeting"? A. An occasion where two or more members of the same board are present (includes presence physically, by telephone, bye-mail, or even when conferring by written documents, including documents transmitted by FAX), and B. Discussion ensues on a matter on which "foreseeable action" will be taken (encompasses entire decision-making process, including briefings, workshops, seminars, etc.). IV. Requirements for a public meeting A. Location 1. Section 286.011 (6) prohibits holding public meetings at any facility that discriminates on the basis of sex, age, creed, color, origin, or economic status. - 2. Section 286.26 requires accommodations to be made, upon written request received at least 48 hours in advance, for physically handicapped individuals. Federal law requires that persons with disabilities be given full access to all governmental -26- meetings and programs. B. Notice - 1. The Statute does not contain any particular notice requirements. 2. The courts have interpreted the intent of the statutes to require "reasonable notice". 3. In an informal opinion (Inf. Op. To Evans, June 7, 1989), the Attorney General's office has suggested that reasonable notice should contain the time and place of the meeting and, if available, an agenda (otherwise a summary of subject matter) (note: the courts have held publication of an agenda is not required and it is not a Sunshine Law violation to discuss items not on the agenda). The Attorney General has further advised that these notices should be "prominently displayed" in a City Hall/County Courthouse or comparable area set aside for that purpose and that the notices should be posted sufficiently in advance to provide "appropriate and effective notice under the circumstances." Except in cases of emergency, special meetings should have at least 24 hours reasonable notice. See AGO 73- 170. - 4. Section 286.0105 requires that each notice include the advice that if a person(s) decides to appeal any decision, such person may need to ensure that a verbatim record of the proceedings is made. C. Minutes 1. Section 286.011 requires that written minutes be kept of each public meeting and that they be open to public inspection. 2. Meetings may be tape recorded or video taped, but minutes must still be kept in addition to the recordings. D. Voting 1. Section 286.012 requires that all members present at a meeting vote on official actions or decisions unless they comply with the conflict of interest provisions of Chapter 112, Florida Statutes. 2. Roll call votes on all matters are not necessary. ~ 3. Secret ballots are prohibited. -27- V. Effect of Sunshine Law Violations A. Sanctions - 1. Criminal - Knowing violation of the Sunshine Law is a second degree misdemeanor, with penalties of up to $500 in fines and up to 60 days in j ail or both. 2. Civil - Inadvertent violations are civil infractions with penalties not to exceed a $500 fine. B. Validity of actions taken in violation of the Sunshine Law. 1. Actions which have been taken are void ab initio. 2. Members of the general public have standing to sue. 3. Initial action taken in violation of the Sunshine Law can be cured by an independent final action taken in the Sunshine; in other words, start over but in the Sunshine. ---- "-" -28- 25. CONFLICTS OF INTEREST: ELECTED AND APPOINTED GOVERNMENT OFFICIALS - I. Voting conflicts A. Application - Section 112.3143, governing voting conflicts of interest applies to all "public officials" as defined in this Section to include any person elected or appointed to hold office in any agency, including any person serving on an advisory body. B. No county, municipal, or other local public officer can vote in an official capacity upon any measure which inures to the officer's "special private gain or loss" or to the special private gain or loss of any private entity by whom retained, relative or business associate. ..... 1. Existence of "special private gain" depends upon facts. Exists if officer has an ownership interest that is affected; has a relative with an ownership interest; or has a continuing or ongoing business relationship with someone whose interest are affected. If the matter simply affects friends, fellow church or club members, or persons with whom the officer has a past (not ongoing or continuing) business relationship, no voting conflict exists. 2. Where the action will affect the officer in the same way it will affect a group of similarly situated citizens, the determination of whether a special gain exists will depend on the size of the class. If the class of persons is large, a special gain will result only ifthere are circumstances unique to the officer or principal under which the office or principal stands to gain more than the other members of the class. Where the class of person benefitting from the measure is extremely small, the possibility of special gain is much more likely. .---- 3. Procedure to follow if special private gain problems exists: a. Prior to the vote, publicly explain the conflict; b. Abstain from voting; c. Within 15 days of the vote, document the disclosure in a written memorandum filed with the person responsible for documenting the minutes of the meeting. -29- - C. A public officer barred from voting may nevertheless participate in the discussion of the matter provided he/she first discloses the nature of his /her interest in the matter. The disclosure should be made in writing prior to the meeting. If the conflict was not anticipated prior to the meeting, however, the disclosure should be made verbally prior to any participation in the matter and must be followed up within 15 days with a written memorandum filed with the person responsible for documenting the minutes of the meeting. II. Standards of Conduct for Public Officers and Employees of Government Agencies 1. Section 112.313 (2), Florida Statutes, prohibits the solicitation or acceptance of anything of value based upon any understanding that the vote, official action or judgment of the public officer or employee would be influenced thereby. ...... 2. Section 112.313 (4), Florida Statutes, prohibits public officers, employees of agencies, their spouses or minor children from accepting any compensation, payment, or thing of value when such public officer or employee knows, or with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in hislher official capacity. This has been ruled by the Ethics Commission to include expense paid travel by a company seeking to do business with the agency or requiring the agency's approval. 3. Sections 112.313 (3) and (7) prohibit public officers or employees from doing business with their agency or holding certain types of employment or contractual relationships. The provisions have generally been broadly interpreted, and a number of specific exceptions apply. Public officers and employees who are engaged in businesses where this question might arise should seek independent legal advice on the ramifications of Section 112.313. ...... -30- 24. FORM 1, STATEMENT OF FINANCIAL INTERESTS Sec. 112.3145 (1), (2), and (3), Florida Statutes - WHO MUST FILE - All state officers, local officers, candidates for local elective office, and specified state employees as defined below (other than elected constitutional officers who file Form 6) must file a Fom1 1, Statement of Financial Interest. LOCAL OFFICERS include: any person elected to office in any political subdivision and any person appointed to fill a vacancy for an unexpired term in such elective office; an appointed member of a board of any political subdivision (except members of solely advisory bodies), and all members of bodies exercising land- planning, zoning, or natural resources responsibilities, whether advisory or not. Local officers also include mayors and the chief administrative employee of a county, municipality, or other political subdivision, and any person holding one or more of the following positions within a county or municipality: city or county attorney; chief building inspector; water resources coordinator; pollution control director; environmental control director; administrator with power to grant or deny a land development permit. Also included in this category are chief of police; fire chief; municipal clerk; district school superintendent; community college president; or a purchasing agent having the authority to make any purchase exceeding $15,000 for any political subdivision of the state or any entity thereof ~ WHAT l\1UST BE DISCLOSED - Form 1 requirements are set forth fully on the form. In general, this includes the reporting person's sources and types of financial interests, e.g., name of employer and address of real property holdings. No dollar values are required to be listed. WHEN TO FILE - Candidates for publicly-elected local office must file Form 1 together with and at the same time they file their qualifying papers. State and local officers and specified state employees are required to file disclosure by July 1 of each year. Each state or local officer who is appointed and each specified state employee who is employed must file within thirty days from the date of appointment or the beginning of employment. Those appointees requiring Senate confirmation must file prior to confirmation. WHERE TO FILE - Each local officer files this form with the supervisor of elections in the County of permanent residence. A State officer or specified state employee files with the Secretary of State, The Capitol, Tallahassee, Florida, 32399. ~ -31- '- 6i;,lJlliVerSilY 01 Central Florida The John Scott Dailey Florida Institute of Government Class: C.E. Board, Magistrates, H.O. and Attorneys Date: June 23,2007 - Course Evaluation Form - COURSE CONTENT EVALUATION STRONGLY AGREE NEUTRAL DISAGREE STRONGLY AGREE DISAGREE Course learning objectives were met Course content was easy to follow and understand Information presented will be useful in my job Overall, the content and quality of this course was valuable to me The best part of the course: ..... Trainer Name: TRAINER EVALUATION STRONGLY AGREE NEUTRAL DISAGREE STRONGLY AGREE DISAGREE The instructor was prepared for the course The instructor was knowledgeable about the topic The instructor was easy to understand The instructor encouraged questions and participation General Comments and/ or Suggestions for Course or Trainer Improvements: Thank you for your feedback! .....