FACE Legal Issues in Code Enforcement TEST questions and answers

What FL statute enables a Code Enforcement Board?

Chapter 162

A Code Enforcement Board is authorized to what duties?

To impose administrative fines and other non-criminal penalties to provide an equitable, expeditious, effective and inexpensive method of enforcing any codes and ordinances

Role of a Code Enforcement Board

to adjudicate cases that are presented by a code inspector

Why can't a member of a code enforcement board allowed to initiate caes

separation of power

minimum number of board member per population

less than 5k, 5 member board

more than 5k, 7 member board

2 alternates for each CEB

What section requires clerical and administrative personnel for each CEB?

Section 162.07(1)

Requirement for board appointment

1. residency in jurisdiction

2. appointments are bound by state and local laws

3. diverse occupation requested

What is the suggested diversity of a CEB

architect, businessman, engineer, general contractor, subcontractor, and realtor, WHEN POSSIBLE

Initial terms for either a 5 or 7 member board

staggered ranging from 1-3 year terms. After initial appointment all terms 3 yrs

Meeting attendance requirement of CEB members

any member fails to attend 2 of 3 successive meetings without cause and without prior approval of the chairman, the CEB shall declare the office vacant

Quorum Requirements for CEB meeting to conduct business

4 of 7 or 3 of 5

Does the statute provide for a reduction in quorum if there is a vacancy?

No reduction in quorum

All findings by the Board must be

approved by a majority of those members present and voting

Section 162.08 specifies the Boards powers to include

1. adoption of rules to conduct a hearing

2. subpoena alleged violators and witnesses

3. subpoena evidence

4. taking of testimony under oath

5. issuing orders with force of law to bring a violation into compliance

Power to Authorize Foreclosure of Lien

after 3 months from the filing of any unpaid lien

Section which allows a reduction of fines

162.09

Does the Board have the independent authority to investigate or determine whether a violator has complied with the order?

no, the board has no independent authority to determine compliance

Can the CEB order an abatement of a violation through some form of specific action, such as demolition of a building?

yes by commanding whatever steps are necessary to bring a violation into compliance

Does the CEB 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, 162.06 only requires certain disclosures have to be made to new owners and a reasonable time to correct violation

Board's role at the hearing

findings of fact and conclusion of law

fines per day- non repeat violation

$250

fines per day - repeat violation

$500

Repeat violation is defined

previously found guilty of same violation by same violator within 5 years

irreparable or irreversible fines

$5,000 per violation

Super fine

(50k population) cannot exceed $1,000/day per violation, $5,000 per day/ per repeat violation and $15,000 per violation per irreparable/irreversible violation; must have super majority vote

Massey vs Massey

not provided notice of the meeting at which the property of the fines and lien were addressed any opportunity to be herd at the meeting or thereafter

What conditions allow a city or county to foreclose liens

lien has been unpaid for 3 months and remains unpaid

Factors to consider in foreclosures

1. Homestead prohibits

2. Superior encumbrances

3. taxes

4. condition of property

5. commercial property

define "service of process"

formal document, authorized by law, commanding a person to do something or refrain from doing something

Service of NOV on General Partnerships

serve any partner

Foreign Limited Partnership

Partnerships from outside the state. Serve any in the state or Secretary of State as agent of the limited partnership

Who should be served of a dissolved corporation?

director only not registered agent

Serving a minor

serve the parent or guardian and include copy of court papers

Serving an incapacitated

2 copies of the papers on the guardian and court papers

Serving the deceased

all beneficiaries must be served. Find if probate and division as begun

super priority lien

taxes, purchase money mortgages, federal tax liens, etc.

Ruling on Fong vs. Bay Harbour Island

cannot foreclose on homesteaded property

How to send notices by mail outlined in Section 162.12 ?

Certified mail with "green card" option, to the address listed in the tax collector's data base or the address listed in the county property appraiser's database

How to serve notices by way of publication?

once a week for 4 consecutive weeks in a newspaper in the county with proof of publication

How to post a property?

for at least 10 days prior to the hearing, or deadline contained in the notice, in at least 2 locations. Affidavit required which shall include a copy of the notice posted, dates, and places of posting

Public Records Act

Chapter 119

ex parte communication

communication with the court without notifying the other side of the contents of that communication. generally not allowed

A inspector knowingly violates the inspection and examination law penalties

impeachment and conviction of first degree misdemeanor, one year in prison

Penalty for public officer who violates chapter 119

noncriminal infraction fine not exceeding $500

Sunshine law

a law prohibiting public officials from holding meetings not open to the public

Effect of Sunshine Law Violations

criminal- knowingly is a second degree misdemeanor

civil- inadvertent fine not to exceed $500

Procedure to follow if special private gain problems exist

1. prior to vote, publicly explain conflict

2. abstain from voting

3. within 15 days of the vote, written disclosure memo filed

Factors to consider in deciding to prosecute?

1. magnitude of violation

2. time which it would take to fix violation

3. how hard will it be to cite violator

4. will violator remain in the community

5. past experience with violator

Reasonable time to allow for correction

10 business days or 30 calendar days

Section 162.23(2)

Notice to Appear

Documentation of a violation shall contain

date, time, persons whom spoke with, written narrative of facts, applicable section of code, determination or conclusion, how to resolve in a reasonable time period

evidence

any kind of proof legally presented at the trial of an issue (witness, records, documents, objects, etc.)

Statutes on evidence

Chapter 90, FL

relevant evidence

Evidence that tends to prove or disprove a fact

circumstantial evidence

(indirect evidence) evidence used to imply a fact but not prove it directly

Relevance of a conviction in code cases

if the crime was punishable by death or imprisonment in excess of 1 year

hearsay is outlined in chapter

90 FL statutes

Fifth Amendment

prohibits government from forcing individuals to testify against themselves.

Fourth Amendment

Protects against unreasonable search and seizure

Limited License

allows inspector to access property without authority to assure compliance within a limited capacity, "girl scout rule"

administrative warrent

An order in writing from judge, commanding an inspection conducted by official relating to a local code

Process to obtain administrative warrent

must show consent was sought and refused, affidavit is filed, judge determines cause, Section 933

Florida Evidence code

Chapter 90 FL Statute

A standard of basic fairness must be observed in order to satisfy requirements of

Due process

Marion vs State of Florida

evidence to unrelated issues is irrelevant

Hearsay exceptions

outlined in chapter 90, consult with attorney

Jennings vs. Dade County

alleged violator has right to cross-examine whitnesses

Estate of Rasmussen v Duff

the right to self-incrimination does not apply to a corporation or other artificial entity

Lorenzo vs Blackburn

the refusal of a witness to answer questions is not justified when the answers cannot put the witness in imminent danger of prosecution

Chapter 933

Administrative search warrants

Duration of an administrative search warrant

time specified in warrant, not to exceed 14 days

Can a third party present evidence in a code enforcement case?

limitations to a different kind or degree from all other testimony, not generally allowed

Use of video and audio recordings and photgraphs

must be authenticated, it is a fair and accurate representation of the condition when image was taken

Types of public records allowed as evidence

property appraiser index cards, tax assessor information, aerial photographs on file with property appraiser, building permit records, or recorded deeds from county comptroller

presumtion

an assumption of fact which the law makes from the existences of another fact or group of facts found or otherwise established

Methods of proving character when admissible

1. reputation- if proof to be made by testimony

2. specific instances of conduct

Compromise and offers to compromise

inadmissible to prove liability or absence of liability for the claim or its value

Spousal Privilege

communication between spouses is privileged, just like doctor-patient and attorney-client communication

Refreshing Memory Rule

allowed to use writing such as detailed notes, inspection prior to testifying is required

Testimony by experts

specialized knowledge will assist the trier of fact IF the testimony is based upon sufficient facts or data, testimony is the product of reliable principles and methods, and has applied methods reliably to the facts of the case

Florida Statute chapter 933

Search and inspection warrants

injunction

An order which legally prevents something

Public Nuisance

arises from use of land that causes inconvenience or damage to the public

Codification

The act or process of rendering laws in written form

Trianon Park vs Hialeah

Code enforcement is discretionary

prima facie

based on the first impression; accepted as correct until proved otherwise

invidious discrimination

Treating a class of persons unequally in a manner that is malicious, hostile, or damaging.

Thomas v. State

Failure to prosecute all offenders is not sufficient ground for a claim of selective enforcement

service of process is jurisdiction

Check parcel number and address