Legal Issues of Code Enforcement with complete verified solutions

Discretionary

The decision to investigate and subsequently cite, or not cite, an alleged violator for a code

enforcement violation is __________

Trianon Park Condominium v. City of Hialeah, 468 So.2d 912 (Fla. 1985).

Code Enforcement Board nor other third parties can petition a court of law to

require a local government through its Code Inspector to initiate a code enforcement action.

Case decision stated that the judicial branch has no authority to interfere with the

conduct of discretionary functions unless a constitutional provision is violated

Section 162.06(2), Fla. Stat.

What is the Statutory Prerequisite to Provide Opportunity to Correct Violation?

It imposes a condition precedent to any citation by the Code Inspector. The Code Inspector

must (1) notify the alleged violator and (2) provide the alleged violator a "reasonable time to

correct the violation." So, before the formal notice of violation is issued, the Code Inspector

must provide the alleged violator the opportunity to correct the alleged violation.

- A Repeat Violation. Section 162.06(3), Fla. Stat.

- When "the code inspector has reason to believe a violation presents a serious threat to the public health, safety and welfare".

- When the violation is irreparable or irreversible in nature". Section 162.06(4), Fla. Stat.

What are the three exceptions to the "reasonable time to correct" standard?

At least ten business days

What is the rule of thumb in regards to a Code Inspector providing a time frame for an applicant to begin correcting the violation?

The requirement is for "personal investigation" in order to establish "reasonable cause" to believe that a violation has occurred.

What are the requirements for a Code Inspector issuing a citation pursuant to Section 162.21, Fla Stat.?

Chapter 119, Florida Statutes.

What chapter of the Florida Statutes is the Public Records Act?

All reports, notes, or writings of the Code Inspector are "public records" under Florida law

What is part of Public Records?

Can you lien Homestead Property with a Code Lien?

No

Wendy FONG, v. TOWN OF BAY HARBOR ISLANDS

What is the case that states you cannot lien a Homestead property?

- Notice

- An Opportunity to be Heard and to Defend

- Before a competent tribunal vested with the jurisdiction of the subject matter.

The Florida and United States Constitutions require that procedural due process of law be

granted to all parties. What elements of Procedural due process of law are required?

1. Sufficient description of the violation.

2. Determination of the person to cite, the alleged violator or the landowner if the landowner is not the alleged violator.

3. Reasonable time period from the date in which the Notice of Violation is received by the alleged violator and the date of the hearing

4. Completion of service of process of the violation on the alleged violator

What items are required from the Code Inspector in order to adequately notify and put the alleged violator on Notice as required by Due process notice?

Which Section of Florida Statutes states that a lien can be filed "against the land on which the violation exists and upon any other real or personal property owned by the violator"?

Section 162.09(3), Fla. Stat.

Section 162.12, Fla. Stat., provides several options for service of process. What are the available

methods of service?

1. Certified Mail

2. Hand Delivery

3. Leaving the Notice at the Violator's usual place of residence

4. Leaving the notice with the manager or other person in charge in the case of commercial premises

Section 162.12, Fla. Stat

What Section of Florida Statutes provides for options for service of process?

1. Publication in the newspaper

2. Posting

What are the additional methods of service? (At the option of the Code Enforcement Board, Special Magistrate, or the local government)

1. the Sheriff

2. other law enforcement officer

3. Code Inspector

4. Other person designated by the local governing body

Section 162.12, Fla. Stat., allows Service of Process (Notice) by hand delivery by whom?

1. person at the violator's usual place of residence

2. who also resides there

3. which person is above 15 years of age and

4. who is informed of the contents of the

Notice as well as receiving the Notice of Violation

When service by mail or hand delivery to the violator is not possible or practical,

service may be

made by leaving the Notice at the "violator's usual place of residence." However, the Notice

must be left with whom?

Stating evidence that an

attempt has been made to hand deliver or mail notice, together with Proof of Publication or

Posting. This shall be sufficient to show that the notice requirement has been met without regard to

whether or not the alleged violator actually received said Notice.

Chapter 162, Fla. Stat., creates a presumption of service by what?

As a panel to hear the facts and determine, under the law, whether or not the alleged violator committed the alleged violation.

How does the Board function?

It 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.

What is the Code Enforcement Board?

It has the option to appoint a five-member board or a seven‐member board.

What is the organization for a Board of a a jurisdiction with population less than 5,000 persons?

The option is not allowed by statute, and a seven-‐member board is required.

What is the organization for a Board of a jurisdiction whose population is equal to or greater than 5,000 persons?

a) Residency Requirements.

b) Appointments bound by State and Local Laws

c) Diverse Occupation Request.

What are the Requirements for Board Appointment?

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."

Describe the encouragement for board appointment of Diverse Occupation Request.

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 ..." of the Board. Section 162.05(2).

Describe the Requirements for board appointment of Appointments bound by State and Local Laws

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 the time of appointment, but continuing throughout such service.)

Describe the Requirement of Board Appointment of Residency Requirement

The statute provides that the initial terms for either a five- or seven-member board be staggered, ranging from one-‐ to three-‐year terms. After the initial appointment, all terms are for three years.

What are the Terms for Board Members?

Only by cause or if any member "... fails to attend two of three successive meetings without cause and without prior approval of the chairman.

How can a member's office become vacant?

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

How can a Hearing be called?

At least four members

Pursuant to Section 162.05(4), what is quorum is of a seven‐member board?

At least three members

Pursuant to Section 162.05(4), what is quorum of a five‐member board?

All findings by the Board must be what?

"... 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."

What are the general powers of the Board?

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. Subpoena power to subpoena evidence to its hearings. (subpoena duces tecum)

4. Taking testimony under oath.

5. Issuing orders having the force of law to command whatever steps are necessary to

bring a violation into compliance.

What rules apply to evidence in a Board Hearing?

Section 162.07(3) provides that formal rules of evidence shall not apply, but "fundamental due

process shall be observed and shall govern the proceedings".

Define Repeat Violation

A violation by a person who has been previously found " guilty" or who has admitted "guilt" in a Code Enforcement Board, special magistrate, 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.

If the 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 of?

Not to exceed $5,000 per violation (not per day.)

If the Board finds a respondent "guilty", the Board must do what?

The Board must set a time for compliance with the

Board's Order and the amount of fine to be imposed. 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

What Section of Florida Statues is THE SUNSHINE LAW?

Section 286.011, Florida Statutes

What is the minimum amount of time you should give notice for a meeting?

Except in cases of emergency, special

meetings should have at least 24 hours reasonable notice.

What is evidence?

"Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc. for the purpose of

inducing belief in the minds of the court or jury as to their contention.

What is The only requirement of the Code Enforcement hearing?

To provide due process to the alleged

violator.

Relevant evidence is defined in Florida's Evidence Code as ?

"evidence tending to prove or

disprove a material fact".

What is Material Fact?

A fact which is important, or at issue, in a Code Enforcement case.

What is the general test for relevance?

Whether the evidence tends to prove or disprove any fact material to the issues presented before the

Code Enforcement Board

What is Relevant Direct Evidence?

clearly shows some act or omission by the alleged violator.

What is Relevant Circumstantial Evidence?

evidence from which the existence of the violation or other facts may be inferred. It is by its nature, evidence of an indirect nature which allows "inferences" to be drawn.

United Airlines. inc. v. Civil Aeronautics Board 309 F.d. 238 (D.C. Cir. 1962)

What case set the precedent for Ex Parte Communications?

Ex Parte communications

Are inherently improper and are anathema to Quasi-Judicial procedings

Professional Air Travel Controllers Organization (PATCO) V. Federal Labor Relations Authority 685 F.d. 564 (D.C.Cir. 1982)

What case set the precedent to determine the prejudicial effect of ex parte communications?

Chapter 90, FL Statutes Evidence Code

What should guide the substance of all Code Enforcement Board Hearings?

- Identity of the owner

-the Code provision

- whether there was a violation of a Code provision

- Identity of the violator.

What are some examples of material Facts?

- The repeat Violator

- The emergency Case

- Irreparable and irreversible

What are exceptions to the Reasonable Time clause in Ch 162 Part One?

- Violation that is Itinerant or transient in nature.

What is the exception to the Reasonable time clause in Ch 162 Part Two

The Code Inspector is required to conduct personal investigation in order to establish reasonable cause to believe a violation has occurred.

What is the requirement, Pursuant to Sec. 162.21, FL Stat., for a Code Inspector to issue a citation?

Article 1, Section 12.

The Florida Constitution protects its citizens against unreasonable search and seizure in what Article?

Article 1, Section 23.

Where in the Florida Constitution is it stated that every natural person has the right to be left alone and free form of governmental intrusion into his or her private life, except as provided elsewhere in the Constitution?

- Lawyer-Client

- Psychotherapist-Patient

- Sexual Assault counselor-Victim

- Husband-wife

- Accountant-Client

Name some privileged relationship

If a person voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.

How can a person waive privilege?

5th Amendment

What amendment of the US Constitution provides protection against self-incrimination?

Article 1, Section 9

What Article of the State of Florida provides protection against self-incrimination?

Chapter 933, Florida Statutes

What Chapter of the FL Constitution provides for administrative search warrants or "inspection warrants"

Owner-occupied Family Residence

Which properties are exempt from the inspection warrant provisions of Chapter 933?

shall not be made between 6PM and 8AM of the succeeding day, or on Saturday, Sunday or any legal Holiday; or in the absence of an owner or occupant over the age of 18 years of the particular place, dwelling, structure or premises unless specifically authorized by the judge upon a showing that such authority is reasonably necessary to effectuate the purpose of the rule being enforced.

What are the limitations on Warrants?

Chapter 120 Administrative Proceedings

What is the Chapter of the FL Statutes that allows for admissible Hearsay?

Admissible Hearsay

Evidence that is used to supplements or explains other evidence; but that it is not sufficient, in and of itself, to support a finding.

No person may:

(1) refuse to be a witness

(2) refuse to disclose any matter

(3) refuse to produce any object or document

(4) prevent another "from doing the same, unless expressly provided by statute or Constitution.

What is the general Rule on Privilege?

Competent, Substantial Evidence on the record as a whole

What is the standard for evidence in a Code Case?