Legal Issues In Code Enforcement exam questions and answers

Short Title 162.01 Local Government Code Enforcement Boards Act Intent 162.02 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. Applicability Each county may, at its option, create or abolish by ordinance local government code enforcement boards as provided herein. The Membership of a Code Enforcement Board shall include : An Architect, a business person, an engineer, a general contractor, a subcontractor, and a realtor. Enforcement Procedure It shall be the duty of the Code Inspector to initiate enforcement proceedings of the various codes; however, no member of a board shall have the power to initiate such enforcement proceedings. Conduct of Hearing Upon request of the Code Inspector, or at such other times as may be necessary, the chair of an enforcement board may call a hearing of an enforcement board; a hearing may be called by written notice signed by at least three members of a 7 member enforcement board or signed by at least 2 members of a 5 member enforcement board. Powers of Enforcement Boards (1) Adopt rules for the Conduct of its hearings (2) Subpoena alleged violators and witnesses to its hearings. Subpoenas may be served by the Sheriff of the County or police Dept. of the Municipality. (3) Subpoena evidence to its Hearings. (4) Take Testimony under oath. (5) Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance. Administrative Fines, Cost of Repair, Liens. An Enforcement Board, upon notification by the code Inspector that an order of the enforcement board has not been complied with by the set time or upon finding that a repeat violation has been committed, may order the violator to pay a fine in amount specified in this section for each day the violation continues past the date set by a code enforcement board. First Violation Shall not exceed $250.00 PER DAY Repeat Violation Shall not exceed $500.00 PER DAY If the Code Enforcement board finds that the violation to be irreversible or irreparable in nature, it may impose a fine not to exceed $5000.00 per violation . Duration of Lien NO Lien provided under the Local Code Enforcement Board Act shall continue foe a period longer than 20 years after the certified copy of order imposing a fine has been recorded, unless within that time as action is commenced pursuant to s. 162.09(3) in a court of competent jurisdiction , In an action to foreclose on a lien or for a money judgement, the prevailing party is entitled to recover all cost, reasonable attorneys fees. Appeals An Aggravated Party , including the local governing body, may appeal a final administrative order of an enforcement board 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 . An appeal shall be filed within 30 Days of the execution of the order to be appealed. Notices A) All notices must be provided to the violator by: Certified mail , and at the option of the local government return receipt requested to the address listed in the tax collectors office for tax notices or to the county property appraisers database. The local government may also provide an additional notice to any other address it may find for the property owner. B) Hand delivery by the sheriff or other law enforcement officer, code inspector, or other person designated by the local governing body. C) Leaving the notice at the violator's usual place of residence with any person residing therein who iis above 15 years of age and informing such person of the contents of notice. D) In the case of commercial premises, leaving the notice with the manager or other person in charge. In Addition to providing Notice as set forth in subsection (1) at the option of the Code Enforcement Board or local government, notice may be served by publication or posting as follows: Such notice shall be posted once during each week for 4 consecutive weeks(four publications being sufficient) in a newspaper of general circulation in the county where the code enforcement board is located. The newspaper shall meet requirements as are prescribed under chapter 50 for legal and official advertisements. In lieu of publication such notice may be posted at least ten days prior to the hearing, or prior to the expiration of any deadline contained in the notice in at least two locations one of which shall be the property upon which the violation is alleged to exist and the other of which shall be , in the case of the municipalities, at the primary municipal government office, and in the case of counties, at the front door at the court house or the main governmental center in said county. Discretion to Prosecute Since the decision to prosecute a code violation by a code inspector is a discretionary decision, neither the 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. Trianon Park Condominium V. City of Hialeah Fla 1985 Prima facie - Selective enforcement ( An allegation of facts sufficient on their face) to prevail in criminal law , the defendant has a heavy burden to make a prima facie showing that he or she has been singled out for prosecution constitutionally "Invidious" likely to incur resentment or anger in others. (Invidious discrimination is discrimination motivated by constitutionally impermissible reasons such as race, religion or the defendants exercise of first amendments rights.) Factors to consider in deciding whether to prosecute 1) Magnitude of the violation. 2) The time it would take to the alleged violator to cure the violation. 3) Whether the alleged violator is easily accessible to the Code Inspector for subsequent service of notices of violation. 4) Whether the alleged violator will remain in the community for subsequent proceedings. 5) Past experience with the alleged violator (whether positive or negative) with regard to code violations ; Political considerations . Section 162.06(2) Imposes a condition precedent to any citation by the code inspector. The Code Inspector must : 1) Notify the alleged violator 2) Provide the alleged Violator a "reasonable time to correct the violation" There are, however, three exceptions to this requirement " for a reasonable time to correct " 1) Repeat violation 2) The Code Inspector has reason to believe the violation presents a serious threat to the Public health , Safety and welfare" 3) Irreparable or Irreversible in Nature. Reasonable Time There is No Rule Rule defining reasonable time , reasonable time will vary depending on the fats of the case. . A Rule of thumb is that the Code Inspector should provide at least Ten Business Days to begin correcting the violation. Exception to reasonable time to correct which pertains only in the case of Notice to appear. The Exception provides that a reasonable time to correct is NOT REQUIRED if the Code Enforcement officer has reason to believe the violator is engaged in violation of an "Itinerant or Transient Nature" = moves from place to place . Third Party statements Third party statements must be verified by the Code inspector before a citation can be issued , A " Personal Investigation" in order to establish " Reasonable Cause" to believe that a violation has occurred. Documentation of the Violation Once the Code Inspector has observed the violation , the Code Inspector should document the violation , which should consist of the following : a) the Date b)the time of the violation c) the persons with whom the code inspector spoke or with whom he or she inspected the property d) a written narrative as to the facts that the Code Inspector observed. e) the applicable section of the city or county code f) the determination or conclusion that the facts observed by the Code Inspector Constitute a violation of that section of the city or county code. Public Records Act All reports , notes , writings of the code inspector are "Public Records" under Florida law(Chapter 119, Florida Statutes) Any person is entitled to review all such public records. If you would not state the written comments in public, than refrain from writing those comments. Cite all violations The best advice is to cite all violations. including those situations where proof can be difficult and time consuming. Use of video and Tape recorders They will have to be authenticated prior to introduction = who took them, when , where and under what circumstances, and they actually portray the situation recorded.