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HomeMy WebLinkAbout2016 05 24 Other, Presentation Information from Attorney Nix Date: May 24, 2016 The attached document was provided by Senior City Attorney Jennifer Nix and was discussed during the May 24, 2016 Code Enforcement Board Workshop. CODE ENFORCEMENT BOARD'S ROLE AND DUTIES Presenter: Jennifer Nix, Esq. May 24, 2016 Sunshine Law reminders • Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings of public boards or commissions at both the state and local levels. The law is equally applicable to elected and appointed boards and has been applied to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. • Local government boards must comply with Florida's Sunshine Law o This includes members appointed to a board who have not yet"taken office" • Three basic requirements of Section 286.011: • Meetings must be oven to the public • Reasonable notice of the meetings must be given • Minutes must be taken, promptly recorded, and be available to the public • Scope of the Sunshine law • What subject matters must be discussed "in the sunshine"? (i.e., at a meeting) ■ ANY matter which may come before the board for action. • Good reminder: "Gavel to gavel" o While a board member is not prohibited from discussing board business with staff or a non-board member, these individuals cannot be used as a liaison to communicate information between board members. • Board members may not use email, text messages, social media, or the telephone to conduct a discussion about board business. • The Sunshine Law extends to the discussions and deliberations as well as the formal action taken by a public board or commission. ■ There is no requirement that a quorum be present for a meeting of members of a public board or commission to be subject to section 286.011, Florida Statutes. Instead, the law is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). 1 • Board meetings • The Sunshine Law does not allow boards to ban non-disruptive videotaping, recording or photography at public meetings • Board meetings should be held in buildings that are open to the public (i.e., not in private homes) • "Open to the public" means open to all who choose to attend. Boards are not authorized to exclude some members of the public from public meetings. • Penalties o Any member of a board or commission or of any state agency or authority of a county, municipal corporation, or political subdivision who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. Section 286.011(3)(b), Florida Statutes. 0 o Section 286.011(3)(a), Florida Statutes, imposes noncriminal penalties for violations of the Sunshine Law by providing that any public official violating the provisions of the Sunshine Law is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. City Code Sec. 2-61. - Powers. The code enforcement board shall have the following powers: (1) Adopt rules for the conduct of its hearings; (2) Subpoena alleged violators and witnesses to its hearings which may be served by the county sheriff or by the police department of the city; (3) Subpoena evidence; (4) Take testimony under oath; (5) Issue orders having the force of law commanding whatever steps are necessary to bring a violation into compliance; and (6) Assess fines upon notification by the code inspector that a previous order of the code enforcement board has not been complied with by the set time. The violator may be ordered to pay a fine not to exceed two hundred fifty dollars ($250.00) for each day the violation continues past the date set for compliance or for each time the violation has been repeated. A certified copy of an order imposing a fine may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists or, if the violator does not own the land, upon any other real or personal property owned by the violator and may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the personal property, but shall not be deemed otherwise to be a judgment of the court except for enforcement 2 purposes. After six (6) months from the filing of any such lien which remains unpaid, the enforcement board may authorize the city attorney to foreclose on the lien. Chapter 162, Florida Statutes Sections 162.01-162.13 may be cited as the "Local Government Code Enforcement Boards Act" Intent of the Act It is the intent of this part to promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist. Fla. Stat. §162.02 (2015). Definitions of terms as used in the Act (1) "Local governing body" means the governing body of the county or municipality, however designated. (2) "Code inspector" means any authorized agent or employee of the county or municipality whose duty it is to assure code compliance. (3) "Local governing body attorney" means the legal counselor for the county or municipality. (4) "Enforcement board" means a local government code enforcement board. (5) "Repeat violation" means a violation of a provision of a code or ordinance by a person who has been previously found through a code enforcement board or any other quasi-judicial or judicial process, to have violated or who has admitted violating the same provision within 5 years prior to the violation, notwithstanding the violations occur at different locations. Local Code Enforcement Board; Organization. Fla. Stat. § 162.05 The local governing body may appoint one or more code enforcement boards and legal counsel for the enforcement boards. The local governing body of a county or a municipality that has a population equal to or greater than 5,000 persons must appoint seven-member code enforcement boards. Fla. Stat. §162.05 (1). All members of the enforcement boards must be residents of the municipality. Fla. Stat. §162.05 (2). Appointments shall be made for a term of 3 years. Fla. Stat. §162.05 (3)(b). The members of an enforcement board shall elect a chair, who shall be a voting member, from among the members of the board. The presence of four or more members shall constitute a quorum of any seven-member enforcement board. Fla. Stat. §162.05 (4). Enforcement procedure. Fla. Stat. § 162.06 3 It shall be the duty of the code inspector to: • initiate enforcement proceedings of the various codes; • if a violation of the codes is found, notify the violator and give him or her a reasonable time to correct the violation; • should the violation continue beyond the time specified for correction, notify an enforcement board and request a hearing. A board member does NOT: • Notify the Violator of a violation (whether new or repeating) and of reasonable time to correct the violation. This is the role of the Code Inspectors. Fla. Stat. §162.06 (2). • Initiate enforcement proceedings of the various codes. This is the role of the Code Inspectors. Fla. Stat. §162.06 (1). No member of a board shall have the power to initiate such enforcement proceedings. Fla. Stat. §162.06 (1). • Request hearings of the Enforcement Board for violations. This is the role of the Code Inspectors. Fla. Stat. §162.06 (2). GENERAL ISSUES: • Quorum—A quorum of a seven (7)-member board is four (4) members of the Code Enforcement Board. Fla. Stat. §162.05 (4). • Tied vote? The Board has some options, including: • a) After a tied vote, having more discussion and consideration of another motion, or, failing any change in the member's voting over a good healthy discussion, • b) Continuing the matter to the next board meeting (in hopes of additional members appearing that will create an odd number of board members.) (However, this is not the preferred choice, if avoidable). • The Board needs to reach a decision if possible the night of the hearing. Additional evidence may be offered if needed, by either the Code Enforcement officer or the alleged violator. One problem with continuing the matter to the next board meeting is that members absent from initial hearing will not have heard all evidence regarding the case. • Requirement of Board Members to Vote/Effect of Abstention on Quorum- • Each board member must vote unless they have a conflict of interest as defined by Florida Statutes§112.311, §112.313, or§112.3143(3)(a). Fla. Stat. § 286.012. ■ If you think that you may have a conflict of interest, contact the Clerk (preferably ahead of time as to avoid possible quorum issues), who will contact the Code Enforcement Board attorney. • Or, as, in the case of code enforcement boards, the official decision, ruling, or act occurs in the context of a quasi-judicial proceeding, a member may abstain from 4 voting on such matter if the abstention is to assure a fair proceeding free from potential bias or prejudice. Fla. Stat. §286.012 a If there is a quorum for the meeting, but then one person "conflicts out," leaving the remaining board (members eligible to vote) at less than a quorum, may the board continue to move forward on that item? ■ No. The Florida Attorney General issued an opinion that states that a quorum is to be considered only of those members who are entitled to vote, therefore a member abstaining due to a conflict of interest is not entitled to vote and cannot be considered as part of the quorum for that particular matter. CONDUCT OF HEARING: • Meetings Remain Open to Public • All hearings and proceedings shall be open to the public. Fla. Stat. §162.07 (1). 40 Minutes shall be kept of all hearings by each enforcement board. • Testimony • All testimony must be under oath and shall be recorded. Fla. Stat. §162.07 (3). • Testimony shall be taken from both the Code Inspector and the alleged Violator. Fla. Stat. §162.07 (3). • There is no public comment portion of the Code Enforcement Board hearings. However, testimony from a neighbor may be had when relevant for evidentiary purposes, such as to testify that a neighbor indeed makes a lot of noise in violation of a noise ordinance. ■ While Section 286.0114 (2), Florida Statutes, provides that "(m)embers of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission," Section 286.0114(3), Florida Statutes, provides that the requirements of the aforementioned subsection (2) do not apply to "(a) meeting during which the board or commission is acting in a quasi-judicial capacity. This paragraph does not affect the right of a person to be heard as otherwise provided by law." Fla. Stat. §286.0114 (3)(d). • Evidence o Formal Rules of Evidence do not apply, but fundamental due process shall be observed and shall govern the proceedings. Fla. Stat. §162.07 (3). • Due Process o Fundamental Due Process: ■ Due Process is a constitutional principle that our government must follow before it may take a person's freedom or property. This concept is 5 basically a fundamental notion of fairness, and means that a person is given adequate notice and a right to be heard at a hearin ■ Necessary because a person's property rights are involved. • Procedural Due Process includes the following: • (1). Appearance of fairness for decision makers. • (2). Proper notice of the hearing. • (3). A proper hearing process_ ■ (4). A complete record. • (5). A decision that meets legal requirements and is based on the record. • "WOULD A FAIR-MINDED PERSON IN ATTENDANCE AT THIS HEARING SAY THAT EVERYONE WAS HEARD WHO SHOULD HAVE BEEN HEARD, AND THAT THE DECISION MAKER WAS IMPARTIAL AND FREE OF OUTSIDE INFLUENCES?" • Adequate Notice- • Florida Statutes Section 162.12 requires that all Notices must be given to the alleged violator by: • Certified mail, and at the option of the local government return receipt requested, to the address listed in the tax collector's office for tax notices or to the address listed in the county property appraiser's database. The local government may also provide an additional notice to any other address it may find for the property owner. For property owned by a corporation, notices may be provided by certified mail to the registered agent of the corporation. If any notice sent by certified mail is not signed as received within 30 days after the postmarked date of mailing, notice may be provided by posting as described in Sections 162.12 (2)(b)1. and 2.; OR • Hand delivery by sheriff, other law enforcement officer, code inspector, or other person designated by City Commission; OR • Leaving notice at violator's usual place of residence with someone who both lives there and is at least 15 years old and informing such person of the contents of the notice; OR • In the case of commercial premises, leaving the notice with the manager or other person in charge. • In addition to providing notice in one of the above manners, notice may also be served by publication or posting. (Note that proof of publication shall be made by affidavit pursuant to Sections 50.041 and 50.051, Florida Statutes, and proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice and the dates and places of posting). 6 ® Note that the posting option below may be done if any notice sent by certified mail is not signed as received within 30 days after the postmarked date of mailing: ■ Posting: Notice must be posted at least 10 days prior to the hearing, or prior to the expiration of any deadline contained in the notice, in at least two locations—one of which shall be the property upon which the alleged violation exists and the second location being at primary municipal government office. Fla. Stat. §162.12 (2)(b)(1) ® Notice by publication or posting may be given at a time concurrent with, or following, the attempt(s) to provide notice by hand delivery or mail as required in 162.12 (1). Fla. Stat. §162.12 (2) (c). 4D IMPORTANT: EVIDENCE THAT AN ATTEMPT HAS BEEN MADE TO HAND DELIVER OR MAIL NOTICE AS PROVIDED IN SECTION 162.12 (1), FLORIDA STATUTES, TOGETHER WITH PROOF OF PUBLICATION OR POSTING AS PROVIDED IN SECTION 162.12 (2), FLORIDA STATUTES, SHALL BE SUFFICIENT TO SHOW THAT THE NOTICE REQUIREMENTS OF THIS PART HAVE BEEN MET, WITHOUT REGARD TO WHETHER OR NOT THE ALLEGED VIOLATOR ACTUALLY RECEIVED SUCH NOTICE. FLA. STAT. §162.12(3). • So long as the above requirements are met, notice has been achieved. • There is NO requirement that the code inspectors call the violator, or make personal contact with them, or call a foreclosing bank, or property management company, or otherwise. If the code inspectors comport with the statutes as to notice, they have met their burden and notice has been achieved. • Hearing— Alleged violator must be given an opportunity to be heard. • When hearing a case on the agenda, an alleged violator is not required to testify—they are not even required to appear. • However, if an alleged violator does appear and wishes to speak, the violator's testimony SHALL be heard. (Testimony shall be taken from both the Code Inspector and the alleged Violator. Fla. Stat. §162.07 (3).) ® CEB Members: Acting as Judges • Being fair • Appearance of Impartiality ® Determining the amount of fines—Florida Statutes Section 162.09 (2)(b) ■ IN DETERMINING THE AMOUNT OF THE FINE, THE ENFORCEMENT BOARD SHALL CONSIDER: • 1. THE GRAVITY OF THE VIOLATION; • 2. ANY ACTIONS TAKEN BY THE VIOLATOR TO CORRECT THE VIOLATION; and 7 • 3. ANY PREVIOUS VIOLATIONS COMMITTED BY THE VIOLATOR. ■ Section 162.09 (2)(a), Florida Statutes, provides that "A fine imposed pursuant to this section shall not exceed $250 per day for a first violation and shall not exceed $500 per day for a repeat violation, and, in addition, may include all costs of repairs pursuant to subsection (1). However, if a code enforcement board finds the violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000 per violation. e If the local governing body prevails in prosecuting a case before the enforcement board, it shall be entitled to recover all costs incurred in prosecuting the case before the board and such costs may be included in the lien authorized under Section 162.09(3). Fla. Stat. §162.07(2). • AT THE CONCLUSION OF A HEARING e The CEB shall issue its Findings of Fact, Conclusions of Law and Order (BASED ON EVIDENCE OF RECORD AND CONCLUSIONS OF LAW), affording the proper relief consistent with the powers granted by Florida Statutes. The finding shall be made by motion approved by a majority of those members present and voting. ■ At least four members of a seven-member enforcement board must vote in order for the action to be official. Fla. Stat. §162.07 (4). a The order may include a notice that it must be complied with by a specified date and that a fine may be imposed and, under the conditions specified in s. 162.09(1), the cost of repairs may be included along with the fine if the order is not complied with by said date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest, or assigns if the violation concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors in interest, or assigns. ® Basic board orders: ■ 1. Findings of Fact, Conclusions of Law and Order • This is the initial hearing. The Board either find the alleged violator as in compliance, or, in violation with section(s) of noticed City Code/IPMC. • If found in violation, • A finding of violation is found and included; • all applicable sections of Code/IPMC violations are included; • a date will be given by the Board for compliance; and 8 o a daily fine amount will be established, by application of statutory factors. ■ 2. Order Imposing Fine/Lien (generated following a subsequent hearing addressing whether compliance with initial order has been achieved) • Provides that violator not in compliance and describes the fine imposed ($X/ day as of board-ordered date for compliance) ■ 3. Order of Compliance (generated following a subsequent hearing addressing whether compliance with initial order has been achieved) • If a violator has complied by the board-ordered date, an Order of Compliance should be entered. If the original Findings of Fact, Conclusions of Law and Order is recorded, the Order of Compliance should be recorded. ■ 4. Repeat Violation • This is when someone who has previously been found in violation of the same City Code/IPMC provision violates that same provision within five (5) years. o Board orders are provided to 1) the Respondent/violator and 2) the City • Additionally, Section 162.09 (3), Florida Statutes, provides that "(a) lien arising from a fine imposed pursuant to this section runs in favor of the local governing body, and the local governing body may execute a satisfaction or release of lien entered pursuant to this section. After 3 months from the filing of any such lien which remains unpaid, the enforcement board may authorize the local governing body attorney to foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest. 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. The money judgment provisions of this section shall not apply to real property or personal property which is covered under s. 4(a), Art. X of the State Constitution." THE EASIEST WAY TO CHALLENGE A QUASI-JUDICIAL DECISION IS TO ATTACK THE PROCEDURES USED OR THE CONDUCT OF THE DECISION MAKERS. ACCORDINGLY, IT IS CRITICAL TO ENSURE PROCEDURAL REGULARITY. The test for evaluating_a quasi-judicial decision is three-prong: (1). Whether Procedural Due Process has been afforded; (2). Whether the decision maker complied with the essential requirements of law (applied the correct law); and (3). Whether the decision was supported by competent and substantial evidence of record. 9 Massey v. Charlotte County, 842 So.2d 142 (2d DCA 2003 Florida) case summary]: July 5, 2000: Massey's appeared before CEB at a hearing in which they were found to have violated building code by failing to obtain permits prior to conducting certain work on their property. The Massey's received notice and participated in that hearing. On July 11, 2000, the Board entered an Order finding the Massey's in violation of the code and requiring them to remedy the violation within 30 days of the hearing and obtaining a final inspection within 6 months, or, obtaining a demolition permit and removing any improvements, restoring property to its original state. The Order provided that failure to comply punishable by $100 fine per day for each day shown in violation beyond compliance date, and that a lien may be recorded pursuant to Section 162.09, Florida Statutes. November 13, 2000: Building inspector submitted an affidavit of noncompliance to the CEB providing that compliance not achieved and asking for $100 per day fine to be imposed for 101 days (plus costs of$130.40). The affidavit stated that a hearing was not necessary for issuance of the order, and that a certified copy of the order could be recorded and constitute a lien. There was no indication in the affidavit that it was served on the Massey's. January 3, 2001: The CEB met. It was explained that the Massey's had still not pulled the proper permits. The transcript from the meeting showed that the Board approved imposition of the fines based solely on the affidavit and without further discussion. On January 4, 2001, an "Order Imposing Penalty/Lien" totaling $10,240.90 and imposing a lien on all non-exempt real and personal property of the Massey's in that county. Also, the order gave no avenue for the Massey's to challenge the validity of the fines or imposition of the lien. Importantlyit was undisputed that the Massey's did not receive notice or an opportunity to be heard before entry of the order. Appeal: The Massey's appealed to the circuit court seeking review of the Order and the lien, arguing violation of procedural due process. (The Circuit Court affirmed, thus the Massey's sought review via a petition for writ of certiorari, which was granted). Clearly, the Massey's were given procedural due process up to the July 11, 2000 order. The Court stated that it found no caselaw addressing whether the procedures in Chapter 162 comport with principles of due process. The Court noted that "(i)t is necessary to fill in the gaps in [chapter 162] by the common-sense principles of due process." After the July 11, 2000 order's entry, the lien order was based solely on affidavit—and the Massey's were given no notice of a meeting or opportunity to present defenses prior to entry of the lien—neither of the January 2001 meeting nor anything thereafter. Thus, the question before the Court was whether the Massey's were due additional due process before or after the CEB ordered the imposition of the fines and the lien. Ruling: The Massey's were not afforded procedural due process. The Order was quashed and the case remanded for proceedings consistent with the Court's opinion. ' Legal citations herein have been omitted given the informality of this summary as used for CEB training purposes. 10 Case highlights/major points: • Procedural due process imposes constraints on governmental decisions that deprive individuals of liberty or property interests. It serves as a vehicle to insure fair treatment through the proper administration of justice where substantive rights are at issue. • Procedural due process requires both fair notice and a real opportunity to be heard "at a meaningful time and in a meaningful manner." • The specific parameters of the notice and opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. • In order to determine what process is constitutionally required, at least three factors are relevant: o (1)the private interest that will be affected by the official action; o (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and o (3) the government's interests, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail • The Masseys have a compelling interest in retaining their real and personal property free of undue interference or improper clouds of title. ("[p]roperty rights are among the basic substantive rights expressly protected by the Florida Constitution"). • Moreover, property rights are particularly sensitive where residential property is at stake. • As such, "the means by which the state can protect its interests must be narrowly tailored to achieve its objective through the least restrictive alternative when such basic rights are at stake." • The risk of a completely erroneous deprivation in this case is probably low given the process provided to the Masseys prior to the July 11 order finding them in violation of the building code. However, there remains a serious risk of an erroneous deprivation because the amount of fines imposed and the propriety of the lien depended upon factual findings that the Masseys were never given an opportunity to protest. These findings involved moderately complex issues, including whether the alleged violation continued, how long it continued, and whether there was any reason to reduce the per diem fine imposed in light of attempts by the Masseys to comply. To remedy the risk of improper seizure, there must be some type of procedure to allow the property owner to address these new findings. • Finally, although Charlotte County has an interest in protecting the safety and welfare of its citizens by insuring compliance with the building code and has an interest in expeditiously enforcing its orders without undue time and expense, there are further procedural safeguards that could be imposed that would not be unduly burdensome. "Although this court will not mandate any specific procedure that the Code Enforcement Board must follow, that procedure must provide the property owner with notice and an opportunity to be heard concerning any factual determination necessary to impose a fine or create a lien." The Order was quashed and the case remanded for proceedings consistent with the Court's opinion. 11 SCENARIOS The following scenarios depict situations that you may have already seen as a member of this Board or may see in the future. These scenarios cannot cover all situations, but attempt to cover some common situations that this Board may face. Scenario #1 Testimony has been taken, and the Board is discussing the case. Chairperson: This section of the Code is vague and unfair and I am going to find no violation because of its unfairness. Respondent: (directing comments to the Code Inspector) Mr. Code Inspector, you and I talked about this on my front lawn and I know that I was not violating this Code section. You set it up to look like I was violating the Code, and you even admitted there wasn't a code violation. Chairperson: You'll have a turn to speak. What's wrong with this picture? (1) Quasi-judicial proceedings can get out of hand pretty quickly if people are allowed to talk with each other. Arguments can quickly ensue, and tempers can flare. All persons who are testifying should direct all comments to the Board through the Chairperson. However, if a respondent asks to question, or "cross-examine" City staff during testimony, (s)he should be allowed to do so. (2) The Board's job is to apply the Code, period. Only the legislative body (the City Commission) can amend the Code, and only the judiciary can declare it unfair/unconstitutional/etc. Scenario #2—DISCUSS Testimony is closed and discussion has returned to the Board. Board Member: I am not convinced that the evidence shows that there has been a violation. It depends on how you read the Code. What's wronIZ with this picture? There is no problem with this particular scene. If the Board needs information on how the Code Enforcement Board has interpreted a particular Code section in the past, the City should give the Board that information. Absent a clearly erroneous interpretation, the Board should interpret the wording of the Code as it has in the past. If there has been no previous interpretation of the Code, whatever interpretation is given should be used in the future. Therefore, it is important to carefully decide how to interpret a Code provision which has never been interpreted before. HOWEVER, we need to discuss difference between consistency of applying interpretations of the Code, and fines. 12 Scenario #3—DISCUSS During discussion among the Board after testimony has closed. Board Member: I went by the property and I saw... What's wrong with this picture? 1. The Board Member is acting as a witness-improper. 2. Depending on how long the Board Member took looking at the property, if it was essentially a site visit, the Board Member needs to disclose this information, as it is ex parte in nature. Scenario #4 The following statement is made by a Board Member anytime during a hearing. Board Member: I went by the property, saw the violation, and immediately called the City to report it to the Code Enforcement Office. What's wrong with this picture? Again, the Board Member is acting as a witness. The Board is not supposed to be acting as an arm of the Code Enforcement Office. Scenario #5—DISCUSS During discussion by the Board after testimony is closed. Code Officer: Excuse me Mr. Chair, I would like to speak to that. I can tell by your discussions that you have a wrong impression. What's wrong with this picture? Nothing, really. The Chair has the authority to open the testimony again, but must give the respondent a chance to rebut. Likewise, if the respondent wants to speak, the Chair has the authority to open up the testimony, with the City having a chance to rebut. After these additional comments or reflections, the testimony is closed again, and discussion returns to the Board. Scenario 46—DISCUSS This takes place at the end of the testimony, when the Respondent is speaking. Respondent: "I have had this boat on the side of my house, and my husband left me, and I am having financial difficulty. My brother was supposed to come last weekend to pick up the boat 13 and take it to his house in Ft. Myers, but he could not come at the last minute. I don't really know what to do. I couldn't get it moved before the date that the code inspector gave for compliance." (Tearfully.) Motion is made, seconded, and passed to continue the case. What's wrong with this picture? One way the Board might want to consider handling these kinds of situations where a person has some difficulties in complying before the stated date is not to continue the case, but to find a violation and give the person plenty of time in which to comply. It is really discretionary with the Board, but when cases are continued too often, it causes a backlog of Code Enforcement cases. Also, if some Board members are present at the second hearing that were not there to hear the testimony at the first hearing, it is questionable whether that person is competent to vote, because they have not heard all of the testimony. In addition, the Statute requires that four 4 of seven (7) members of the Board must vote. If a person is not competent to vote because they were not present during the majority of the testimony, they may put the Board in a position where there are not enough members to vote. The other side of the coin, though, is that, when the Board finds a violation and such an order is entered, the person could be placed in a repeat offender status. All of this is discretionary with the Board depending on the facts of the case. However, it is not advisable to continue cases under many circumstances. Scenario #7 The Board is discussing the case. Board Member: I live next door to the Respondent, and I must abstain from voting. What's wrong with this picture? We can go over Florida Statutes 112.3143 and 286.012 and the seeming tension between these two sections. Scenario 98 During discussion of the Board, one of the Board Members reveals: Board Member: This Respondent is a member of my church. I have to abstain from voting. Is anything wrong with this picture? The most common type of conflict of interest is a voting conflict of interest under 112.3143, Florida Statutes. A Board Member must abstain from voting and file a memorandum of conflict of interest if he/she or a relative or business associate (the Statute sets out the definition of relative) would stand to privately and specially gain or lose by the Board's vote. Usually the gain or loss is economic in nature. In this instance, if the Board Member simply knows the Respondent, who is in their church, without satisfying the criteria of 112.3143, there would be no voting conflict of interest. 14 Scenario #9 -- DISCUSS Two board members who are sitting at the dais during the testimony speak quietly to each other, so nobody else in the room can hear. What's wrong with this picture? First of all, it is potential Sunshine Law violation because there are two or more members who could be, or seem to be, talking about the matters before them, yet the public cannot hear. Secondly, since it is done in a quasi-judicial hearing, it could be a due process violation. It certainly does not look appropriate and could raise the suspicions of the City or the Respondent. Scenario #10 Before the Board hearing actually begins, a Respondent approaches a Board Member: Respondent: Hey, Ralph (a board member), it's so good to see you. I saw you at Antonio's Restaurant the other night. How's your wife and kids? Your kids have sure gotten big. You know, I'm here on a case tonight, and I did nothing wrong. That Code Enforcement Officer sitting over there sure has it out for me. He went around to all my neighbors and told lies about me. What's wrong with this picture? Board Members should avoid having any discussions with respondents. That does not mean that they cannot be courteous if they know them. (How would you handle it if a Respondent came up to you like this? How would you respond?) Scenario #11 Right before the hearings are to begin, a Board Member approaches the Code Inspector: Board Member: Howdy Mrs. Inspector, how are you today? Gee, it's good to see you. Say, I haven't seen you at the bowling alley lately. Code Inspector: Hi Mr. Chair. No, I haven't been able to bowl lately because my kids have been sick. What's wrong with this picture? Board members should restrain from being so folksy and familiar with Staff members. Respondents could easily get the impression that Board members and Staff are all on the same team. 15 Scenario #12 During testimony, the Attorney representing the Respondent says: Respondent's Attorney: This Sign Code is unconstitutional under the Solantic v. Neptune Beach case! Code Board: I move to find no violation because the Sign Code is unconstitutional. (The motion is made and passed). What's wrong with this picture? The Code Board is not competent to determine constitutionality or unconstitutionality of the Code. Under the Florida Constitution, only the judiciary can make that determination. If there is a violation and the Board finds that, the Respondent can take that matter to Circuit Court and argue the constitutionality of the Sign Code. Scenario #13 Here, a Board Member states, before the testimony is taken, "I don't want to vote because I hate these adult entertainment establishments, they should be run out of town and I am prejudiced. Therefore, I will abstain." What's wrong with this picture? Maybe nothing. There is no voting conflict of interest because there is nothing to indicate that a decision by the Board would inure to the private and special gain or loss of the Board Member. However, if the Board Member believes that he or she cannot impartially consider the matter, he or she should abstain from voting, even though Florida Statute 286.012 states that board members must vote. (Recall that Section 286.012, Florida Statutes, also states that "(i)f the official decision, ruling, or act occurs in the context of a quasi-judicial proceeding, a member may abstain from voting on such matter if the abstention is to assure a fair proceeding free from potential bias or prejudice.") Scenario #14 This scene takes place during testimony on a case where an older teenager has allowed a lot of junked cars to be parked in the front yard of the property. Board Member: Little lady, there are a lot of people like you moving in town, and we cannot have this. You gotta get your act together and get control of that kid of yours. What's wrong with this picture? 16 This inappropriate comment could be seen as a violation of due process. It is sexually denigrating. Board Members should not make what may be perceived as personal attacks on respondents or witnesses. Their power lies in their ability to find that (if) there has been a violation and to impose a fine. Scenario #15 During testimony, comments are made by the Code Inspector while showing pictures. Code Inspector: This action today is being brought because the Respondent is putting on an addition to his house without a permit. Here are the pictures, you can see. Here's another and it shows that the roof over the main house is in bad repair, and I am very concerned about that. Respondent's Attorney: I object to this picture even being presented, it is irrelevant and prejudicial. What's wrong with this picture? The Respondent's Attorney is correct. Since there is no violation about the roof which is in bad repair on the main house, that should not be shown. The City should stick to evidence pertinent to the particular Code violation before the Board. Scenario #16 A number of angry residents and neighbors have come to testify. Statements are made by the Code Officer at the end of the presentation of evidence in front of these citizens. Code Officer: Members of the Board, the City requests that the Board find the Respondents in violation of the Code and set the fine at $250.00 a day effective tomorrow. Narrator: Motion is made, seconded, and passed to give the City what it wants. The fine goes into effect tomorrow, with no time given to comply. What's wrong with this picture? Chapter 162 does not require that a city give respondents a grace period after a violation has been found and a fine set. Practically speaking, though, the Respondent may need a reasonable period in which to bring to his/her property into compliance, depending on how long that will take. The Board's Order in this case may be especially difficult if the Respondent is not even present at the hearing to receive word that he/she must being the property into compliance the very next day. By the time the Respondent gets the Order, some time may have passed. Moreover, if the City has made it a practice to give a reasonable time in the great majority of its cases, that one lone case in which the Respondent is given little or no time to comply makes the Board's Order legally challengeable. 17 Scenario #17 After the City has presented its case, the Chair makes the following comment: Chairperson: All these pictures were delivered to us, and we have been reading them all week, I don't know how we can't find the Respondent not in violation, it's so obvious. Respondent: I would like to see those pictures, and I object to what you are saying - that you've been looking at the pictures all week before I have had a chance to even address you. Chairperson: You will have your turn to speak. What's wrong with this picture? Board Members in quasi-judicial proceedings should not receive pictures ahead of time. It could be prejudicial, and the Respondent is not there to explain. Pictures should be viewed at the time of the hearing only. Also, while it true that a Respondent will have a turn to speak a Respondent is allowed to ask questions of the City (i.e. cross-examine) at the time that the City presents its case. If a Respondent wants to question the City, he or she may do so. Scenario #18 The scene is the same as it was in#17, with an added comment by the Respondent: Respondent: Mr. Chair, I see that you have a whole packet of stuff up there, and how do I know that some of that isn't about my case? Let me see what's in there. You may have a bunch of other pictures and stuff that I'm not getting a chance to see. I want to see all that to make sure it doesn't hurt my case or me. What's wrong with this picture? The Respondent has a right to look at the packet to satisfy himself/herself that he is not being prejudiced—that there are not other pictures that he/she is not getting a chance to look at. Scenario #19 The Board is having discussions in this scene after hearing all the testimony. Chairperson: Well, we have here this petition signed by all the neighbors complaining about the annoyance of the dog barking. The dates are shown pretty clearly—April 9th, April 17th, April 18th, April 20th, April 25th. I'd say there was a clear violation here. What does the rest of the Board think? Respondent's Attorney: I object to that petition. First, none of the neighbors are here to testify. Second, the petition is not even sworn to, and witnesses are required under Chapter 162 to be sworn in to these proceedings. 18 Code Officer: Mr. Chair, four or five of those witnesses have called me personally and told me about the dog barking at all hours of the morning, although I didn't hear the dogs myself. What's wrong with this picture? Those people are not present, and it makes it hearsay. Although hearsay is allowed, the Code Inspector is testifying about matters that are very important in finding a violation which were told to him outside of the hearing. The Code Inspector has no personal knowledge either. Although hearsay can be considered in quasi-judicial proceedings, and the Code Inspector was sworn in, if there are no other witnesses, the evidence is not competent in finding a violation under these particular circumstances. Scenario #20 At the end of the Respondent's presentation of his case the Respondent's Attorney asks the Chair for a chance to have closing arguments. Chairperson: We don't allow closing arguments in these proceedings. What's wrong with this picture? If a Respondent asks for a closing argument, he/she should be allowed to have that. It is a summation of what the testimony has been. BUT, the Respondent or Respondent's Attorney cannot speak to evidence that has not been presented. If the Respondent is allowed to have closing arguments, the City should be invited to have closing arguments as well. STATUTES: The following state statutes are provided as those relevant to the Board in addition to Chapter 162, Part 1, which can be found in its entirety online at www.leg.state.us/statutes/ and with which the Board should be familiar. 112.3143 Voting conflicts (1) As used in this section, (b) "Public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body. Fla. Stat. §112.3143 (1)(b). (c) "Relative" means any father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law. Fla. Stat. §112.3143 (1)(c). (3)(a) No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows 19 would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.. Fla. Stat. §112.3143(3)(a). (4) No appointed public officer shall participate in any matter which would inure to the officer's special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter. (a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum. (b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum. (c) For purposes of this subsection, the term "participate" means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction. (6) Whenever a public officer or former public officer is being considered for appointment or reappointment to public office, the appointing body shall consider the number and nature of the memoranda of conflict previously filed under this section by said officer. 20 286.012 Voting requirement at meetings of governmental bodies A member of a state, county, or municipal governmental board, commission, or agency who is present at a meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may not abstain from voting in regard to any such decision, ruling, or act; and a vote shall be recorded or counted for each such member present, unless, with respect to any such member, there is, or appears to be, a possible conflict of interest under s. 112.311, s. 112.313, s. 112.3143, or additional or more stringent standards of conduct, if any, adopted pursuant to s. 112.326. If there is, or appears to be, a possible conflict under s. 112.311, s. 112.313, or s. 112.3143, the member shall comply with the disclosure requirements of s. 112.3143. If the only conflict or possible conflict is one arising from the additional or more stringent standards adopted pursuant to s. 112.326, the member shall comply with any disclosure requirements adopted pursuant to s. 112.326. If the official decision, ruling, or act occurs in the context of a quasi-,judicial proceeding, a member may abstain from voting on such matter if the abstention is to assure a fair proceeding free from potential bias or prejudice. 112.311 Legislative intent and declaration of policy (1) It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist. (2) It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided. (3) It is likewise essential that the people be free to seek redress of their grievances and express their opinions to all government officials on current issues and past or pending legislative and executive actions at every level of government. In order to preserve and maintain the integrity of the governmental process, it is necessary that the identity, expenditures, and activities of those persons who regularly engage in efforts to persuade public officials to take specific actions, either by direct communication with such officials or by solicitation of others to engage in such efforts, be regularly disclosed to the people. (4) It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service. (5) It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the 21 Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his or her duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees, and of officers and employees of other political subdivisions of the state, in the performance of their official duties. It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate the provisions of this part. (6) It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern. 112.313 Standards of conduct for public officers, employees of agencies, and local government attorneys. (2) SOLICITATION OR ACCEPTANCE OF GIFTS.No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby. (3) DOING BUSINESS WITH ONE'S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to: (a) October 1, 1975. (b) Qualification for elective office. (c) Appointment to public office. 22 (d) Beginning public employment. (4) UNAUTHORIZED COMPENSATION.— No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney 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, employee, or local government attorney was expected to participate in his or her official capacity. (7) CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. (a) No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. 1. When the agency referred to is that certain kind of special tax district created by general or special law and is limited specifically to constructing, maintaining, managing, and financing improvements in the land area over which the agency has jurisdiction, or when the agency has been organized pursuant to chapter 298, then employment with, or entering into a contractual relationship with, such business entity by a public officer or employee of such agency shall not be prohibited by this subsection or be deemed a conflict per se. However, conduct by such officer or employee that is prohibited by, or otherwise frustrates the intent of, this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section. 2. When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. (b) This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance. 23