HomeMy WebLinkAbout2001 06 11 Public Hearings B First Reading - Ordinance 2001-02 Procedures for Implementing the Issuance of Citation
COMMISSION AGENDA
ITEM B
Consent
Informational
Public Hearing X
Regular
June 1 L 2001
Meeting
~o/qf(
Mgr. / Aft. / Dept.
REQUEST:
The City Manager and City Attorney present to the City Commission for first reading Ordinance No.
2001-02 that would regulate and establish procedures for implementing the issuance of citations for
violations of codes, ordinances and applicable Florida Statutes relating to unlicenced contractors and
persons failing to obtain a building permit.
PURPOSE:
The purpose of this Agenda Item is to amend the Winter Springs Code of Ordinances, Chapter 6,
Article XII, Authorizing and Establishing Procedures for Implementing the Issuance of Citations
Pursuant to Section 489.127, Florida Statutes, for Unlicenced Contracting and Failure to Obtain a
building permit.
APPLICABLE LAW AND PUBLIC POLICY:
Section 489.127, Florida Statutes, authorizes and establishes procedures for implementing the
issuance of citations.
CONSIDERATIONS:
1. Establishment of an equitable, expeditious, and effective method of enforcing Codes,
Page 1 of 2
Ordinances, and applicable Florida Statutes.
2. Provide for issuances of civil citations by Code Enforcement Officers for persons violating
the construction contracting provisions of Section 489.127, Florida Statutes.
3. The Building Official has reviewed and recommends adoption.
STAFF RECOMMENDATION:
The City Manager and City Attorney recommend that the City Commission approve First Reading
and schedule a public hearing and second reading for Ordinance No. 2001-02.
ATTACHMENT: Ordinance No. 2001-02
Section 489.127, Florida Statutes
Section 489.132(1), Florida Statutes
COMMISSION ACTION:
F:\DOCS\City of Winter Springs\Agenda\UnIicenced Contractors Agenda ltem.kj
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The 2000 Florida Statutes
Title XXXII
REGULATION OF PROFESSIONS AND OCCUPATIONS
489.127 Prohibitions; penalties.--
ChaDter 489 View Entire ChaDter
Contracting
(1) No person shall:
(a) Falsely hold himself or herself or a business organization out as a licensee, certificateholder, or
registrant;
(b) Falsely impersonate a certificateholder or registrant;
(c) Present as his or her own the certificate, registration, or certificate of authority of another;
(d) Knowingly give false or forged evidence to the board or a member thereof;
(e) Use or attempt to use a certificate, registration, or certificate of authority which has been
suspended or revoked;
(f) Engage in the business or act in the capacity of a contractor or advertise himself or herself or a
business organization as available to engage in the business or act in the capacity of a contractor
without being duly registered or certified or having a certificate of authority;
(g) Operate a business organization engaged in contracting after 60 days following the termination
of its only qualifying agent without designating another primary qualifying agent, except as
provided in ss. 489.119 and 489.1195;
(h) Commence or perform work for which a building permit is required pursuant to part VII of
chapter 553 without such building permit being in effect; or
(i) Willfully or deliberately disregard or violate any municipal or county ordinance relating to
uncertified or unregistered contractors.
For purposes of this subsection, a person or business organization operating on an inactive or
suspended certificate, registration, or certificate of authority is not duly certified or registered and
is considered unlicensed. An occupational license certificate issued under the authority of chapter
205 is not a license for purposes of this part.
(2)(a) Any unlicensed person who violates any of the provisions of subsection (1) commits a
misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any unlicensed person who commits a violation of subsection (1) after having been previously
found guilty of such violation commits a felony of the third degree, punishable as provided in s.
775.082 or s. 775.083.
(c) Any unlicensed person who commits a violation of subsection (1) during the existence of a
state of emergency declared by executive order of the Governor commits a felony of the third
degree, punishable as provided in s. 775.082 or s. 775.083.
(d) Any person who operates as a pollutant storage systems contractor, precision tank tester, or
internal pollutant storage tank lining applicator in violation of subsection (1) commits a felony of
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the third degree, punishable as provided in s. 775.082 or s. 775.083.
The remedies set forth in this subsection are not exclusive and may be imposed in addition to the
remedies set forth in s. 489.129(2);
(3) The department may issue a stop-work order for all unlicensed work on a project upon finding
probable cause to believe that construction work which requires certification or registration is being
performed without a current, valid certificate or registration. Stop-work orders may be enforced
using any cease and desist or other related action by the department as set forth in s. 455.228.
(4 )(a) A certified or registered contractor, or contractor authorized by a local construction
regulation board to do contracting, may not enter into an agreement, oral or written, whereby his
or her certification number or registration number is used, or to be used, by a person who is not
certified or registered as provided for in this chapter, or used, or to be used, by a business
organization that is not duly qualified as provided for in this chapter to engage in the business, or
act in the capacity, of a contractor.
(b) A certified or registered contractor, or contractor authorized by a local construction regulation
board to do contracting, may not knowingly allow his or her certification number or registration
number to be used by a person who is not certified or registered as provided for in this chapter, or
used by a business organization that is not qualified as provided for in this chapter to engage in the
business, or act in the capacity of, a contractor.
(c) A certified or registered contractor, or contractor authorized by a local construction regulation
board to do contracting, may not apply for or obtain a building permit for construction work unless
the certified or registered contractor, or contractor authorized by a local construction regulation
board to do contracting, or business organization duly qualified by said contractor, has entered into
a contract to make improvements to, or perform the contracting at, the real property specified in
the application or permit. This paragraph does not prohibit a contractor from applying for or
obtaining a building permit to allow the contractor to perform work for another person without
compensation or to perform work on property that is owned by the contractor.
(d)1. A person who violates this subsection commits a misdemeanor of the first degree, punishable
as provided in s. 775.082 or s. 775.083.
2. A person who violates this subsection after having been previously found guilty of such violation
commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(5) Each county or municipality may, at its option, designate one or more of its code enforcement
officers, as defined in chapter 162, to enforce, as set out in this subsection, the provisions of
subsection (1) and s. 489.132(1) against persons who engage in activity for which a county or
municipal certificate of competency or license or state certification or registration is required.
(a) A code enforcement officer designated pursuant to this subsection may issue a citation for any
violation of subsection (1) or s. 489.132(1) whenever, based upon personal investigation, the code
enforcement officer has reasonable and probable grounds to believe that such a violation has
occurred.
(b) A citation issued by a code enforcement officer shall be in a form prescribed by the local
governing body of the county or municipality and shall state:
1. The time and date of issuance.
2. The name and address of the person to whom the citation is issued.
3. The time and date of the violation.
4. A brief description of the violation and the facts constituting reasonable cause.
5. The name of the code enforcement officer.
6. The procedure for the person to follow in order to pay the civil penalty or to contest the citation.
7. The applicable civil penalty if the person elects not to contest the citation.
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(c) The local governing body of the county or municipality is authorized to enforce codes and
ordinances against unlicensed contractors under the provisions of this subsection and may enact an
ordinance establishing procedures for implementing this subsection, including a schedule of
penalties to be assessed by the code enforcement officer. The maximum civil penalty which may be
levied shall not exceed $500. Moneys collected pursuant to this subsection shall be retained locally,
as provided for by local ordinance, and may be set aside in a specific fund to support future
enforcement activities against unlicensed contractors.
(d) The act for which the citation is issued shall be ceased upon receipt of the citation; and the
person charged with the violation shall elect either to correct the violation and pay the civil penalty
in the manner indicated on the citation or, within 10 days of receipt of the citation, exclusive of
weekends and legal holidays, request an administrative hearing before the enforcement or licensing
board or designated special master to appeal the issuance of the citation by the code enforcement
officer.
1. Hearings shall be held before an enforcement or licensing board or designated special master as
established by s. 162.03(2), and such hearings shall be conducted pursuant to the requirements of
ss. 162.07 and 162.08.
2. Failure of a violator to appeal the decision of the code enforcement officer within the time period
set forth in this paragraph shall constitute a waiver of the violator's right to an administrative
hearing. A waiver of the right to an administrative hearing shall be deemed an admission of the
violation, and penalties may be imposed accordingly.
3. If the person issued the citation, or his or her designated representative, shows that the citation
is invalid or that the violation has been corrected prior to appearing before the enforcement or
licensing board or designated special master, the enforcement or licensing board or designated
special master may dismiss the citation unless the violation is irreparable or irreversible.
4. Each day a willful, knowing violation continues shall constitute a separate offense under the
provisions of this subsection.
(e) A person cited for a violation pursuant to this subsection is deemed to be charged with a
noncriminal infraction.
(f) If the enforcement or licensing board or designated special master finds that a violation exists,
the enforcement or licensing board or designated special master may order the violator to pay a
civil penalty of not less than the amount set forth on the citation but not more than $1,000 per day
for each violation. In determining the amount of the penalty, the enforcement or licensing board or
designated special master shall consider the following factors:
1. The gravity of the violation.
2. Any actions taken by the violator to correct the violation.
3. Any previous violations committed by the violator.
(g) Upon written notification by the code enforcement officer that a violator had not contested the
citation or paid the civil penalty within the timeframe allowed on the citation, or if a violation has
not been corrected within the timeframe set forth on the notice of violation, the enforcement or
licensing board or the designated special master shall enter an order ordering the violator to pay
the civil penalty set forth on the citation or notice of violation, and a hearing shall not be necessary
for the issuance of such order.
(h) A certified copy of an order imposing a civil penalty against an uncertified contractor may be
recorded in the public records and thereafter shall constitute a lien against any real or personal
property owned by the violator. Upon petition to the circuit court, such order may be enforced in
the same manner as a court judgment by the sheriffs of this state, including a levy against personal
property; however, such order shall not be deemed to be a court judgment except for enforcement
purposes. A civil penalty imposed pursuant to this part shall continue to accrue until the violator
comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to
this subsection, whichever occurs first. After 3 months from the filing of any such lien which
remains unpaid, the enforcement board or licensing board or designated special master may
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authorize the local governing body's attorney to foreclose on the lien. No lien created pursuant to
the provisions of this part may be foreclosed on real property which is a homestead under s. 4, Art.
X of the State Constitution.
(i) This subsection does not authorize or permit a code enforcement officer to perform any function
or duty of a law enforcement officer other than a function or duty that is authorized in this
subsection.
(j) An aggrieved party, including the local governing body, may appeal a final administrative order
of an enforcement board or licensing board or designated special master to the circuit court. Such
an appeal shall not be a hearing de novo but shall be limited to appellate review of the record
created before the enforcement board or licensing board or designated special master. An appeal
shall be filed within 30 days of the execution of the order to be appealed.
(k) All notices required by this subsection shall be provided to the alleged violator by certified mail,
return receipt requested; by hand delivery by the sheriff or other law enforcement officer or code
enforcement officer; by leaving the notice at the violator's usual place of residence with some
person of his or her family above 15 years of age and informing such person of the contents of the
notice; or by including a hearing date within the citation.
(I) For those counties which enact ordinances to implement this subsection and which have local
construction licensing boards or local government code enforcement boards, the local construction
licensing board or local government code enforcement board shall be responsible for the
administration of such citation program and training of code enforcement officers. The local
governing body of the county shall enter into interlocal agreements with any municipalities in the
county so that such municipalities may, by ordinance, resolution, policy, or administrative order,
authorize individuals to enforce the provisions of this subsection. Such individuals shall be subject
to the requirements of training as specified by the local construction licensing board.
(m) Any person who willfully refuses to sign and accept a citation issued by a code enforcement
officer commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s.
775.083.
(n) Nothing contained in this subsection shall prohibit a county or municipality from enforcing its
codes or ordinances by any other means.
(0) Nothing in this subsection shall be construed to authorize local jurisdictions to exercise
disciplinary authority or procedures established in this subsection against an individual holding a
proper valid certificate issued pursuant to this part.
(6) Local building departments may collect outstanding fines against registered or certified
contractors issued by the Construction Industry Licensing Board and may retain 25 percent of the
fines they are able to collect, provided that they transmit 75 percent of the fines they are able to
collect to the department according to a procedure to be determined by the department.
History.--ss. 13, 17, ch. 79-200; S5. 13, 15, 25, 30, 34, 58, 62, ch. 80-406; 5. 370, ch. 81-259;
S5. 2, 3, ch. 81-318; S5. 30, 31, ch. 86-159; 5. 11, ch. 87-310; 55. 13, 20, 21, ch. 88-156; 5. 3, ch.
89-343; 5. 39, ch. 90-228; 5. 38, ch. 91-137; 5. 255, ch. 91-224; s. 4, ch. 91-429; s. 5, ch. 92-55;
5. 69, ch. 92-149; 5. 16, ch. 93-166; 5. 264, ch. 94-119; 5. 3, ch. 95-240; s. 8, ch. 96-298; 5. 73,
ch. 96-388; 5. 1128, ch. 97-103; s. 10, ch. 97-228; 5. 23, ch. 98-287.
Note.--Subsection (4) former 5.489.1265.
Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be
consulted for official purposes. Copyright @ 2000-2001 State of Florida. Contact us.
Privacv Statement
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The 2000 Florida Statutes
Title XXXII ChaDter 489 View Entire ChaDter
REGULATION OF PROFESSIONS AND OCCUPATIONS Contracting
489.132 Prohibited acts by unlicensed principals; investigation; hearing; penalties.--
(1) No uncertified or unregistered person associated with a contracting firm qualified by the
licensee under this chapter shall:
(a) Conceal or cause to be concealed, or assist in concealing, from the primary qualifying agent,
any material activities or information about the contracting firm;
(b) Exclude or facilitate the exclusion of any aspect of the contracting firm's financial or other
business activities from the primary qualifying agent;
(c) Knowingly cause any part of the contracting firm's activities, financial or otherwise, to be
conducted without the primary qualifying agent's supervision; or
(d) Assist or participate with any certificateholder or registrant in the violation of any provision of
this chapter.
(2) The department shall cause an investigation of any incident where it appears that any
uncertified or unregistered person associated with a contracting firm is in violation of this section.
When, after investigation, the department finds there is probable cause to believe this section has
been violated, the department shall prepare and file an administrative complaint which shall be
served on the uncertified or unregistered person. The department shall prosecute the complaint
pursuant to chapter 120.
(3) Upon a finding of a violation of this section, the department is authorized to impose a fine of
not more than $5,000 and assess reasonable investigative and legal costs for the prosecution of the
violation against the violator. Any such fine and assessments shall be paid within 30 days of the
filing of the final order with the department. In the event of an appeal, the time for payment of any
fine and assessments shall be stayed until a final order is rendered upholding the department
decision.
(4) In the event any fine and assessments imposed by the department are not paid within the time
provided for payment, the department may bring action as provided in s. 489.129(6)(b) in the
appropriate circuit court of the state for enforcement of the final order, and the circuit court shall
not rehear the merit of those matters included in the final order of the department.
(5) The department may suspend, revoke, or deny issuance or renewal of a certificate,
registration, or certificate of authority for any individual or business organization that associates a
person as an officer, director, or partner, or in a managerial or supervisory capacity, after such
person has been found under a final order to have violated this section or was an officer, director,
partner, trustee, or manager of a business organization disciplined by the board by revocation,
suspension, or fine in excess of $2,500, upon finding reasonable cause that such person knew or
reasonably should have known of the conduct leading to the discipline.
History.--ss. 36,41, ch. 89-374; s. 4, ch. 91-429; s. 20, ch. 93-166; s. 14, ch. 97-228.
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