PROPOSED REVISIONS TO CHAPTER 162 FLORIDA STATUTES 2010

Transcription

1 PROPOSED REVISIONS TO CHAPTER 162 FLORIDA STATUTES 2010 Title XI COUNTY ORGANIZATION AND INTERGOVERNMENTAL RELATIONS CHAPTER 162 COUNTY OR MUNICIPAL CODE ENFORCEMENT PART I LOCAL GOVERNMENT CODE ENFORCEMENT BOARDS (ss ) PART II SUPPLEMENTAL COUNTY OR MUNICIPAL CODE OR ORDINANCE ENFORCEMENT PROCEDURES (ss ) REASONS FOR PROPOSED CHANGES Article I, Section 23 of the Florida Constitution, the Right of Privacy provides Every natural person has the right to be let alone and free from governmental intrusion into the person's private life.... In the State of Florida v. J.P., 907 So.2d 1101 ( Fla. 2004), The Florida Supreme Court ruled (at page 1112) that : "[T]he Florida Constitution contains, in Article I, section 23, a strong right of privacy provision." And Further, the Florida constitutional privacy right "embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution." This decision also held (at page 1110): that where [a] law intrudes on fundamental right to privacy guaranteed in Florida s Constitution, the State must demonstrate that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means (Internal citations omitted). Citizens statewide are complaining about abusive code enforcement actions. 1

2 Absent the preferred abolishment of Chapter 162, Part I and a return to common law use of the County Courts for abatement of nuisances, the following changes are requested. PART I ---LOCAL GOVERNMENT CODE ENFORCEMENT BOARDS Short title Intent Applicability Definitions Local government code enforcement boards; organization Local government code enforcement special magistrates Enforcement procedure Conduct of hearing Powers of enforcement boards Administrative fines; costs of repair; liens Duration of lien Appeals Notices Actions for money judgments under this chapter; limitation Provisions of act supplemental Citizens and Property Owners Code Enforcement Bill of Rights KEY: Words strikethrough in the body of each section are to be removed (deleted). Words in bold print are to be added. Words italicized were relocated Proposed Section Revisions: Remove the word board 2

3 Short title. Sections may be cited as the Local Government Code Enforcement Boards Act. History. s. 1, ch ; s. 72, ch ; s. 1, ch Note. Former s Reasons for change--to more accurately reflect the use of both boards and magistrates. Proposed Section Revisions: Subsection paragraph numbering added with subsection (1) revised and subsections (2),(3) and (4) added Intent.-- (1) It is the intent of this part to promote, protect, and improve the health and safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards and use of special magistrates with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any local codes and ordinances. in force in counties and municipalities, where a pending or repeated violation continues to exist. (2) As health and safety are the primary concerns of this Act: (a) Local governing bodies should restrict their codes and ordinances to health and safety issues without being so overly broad as to unduly restrict normal business activities or infringe upon the outdoor Florida lifestyle; their rules and regulations should avoid being arbitrary or capricious or so vague that a person of average intelligence cannot reasonably understand what is expected of them. (b) The administrative entities authorized herein do not have jurisdiction over, and should not hear issues affecting property values disputes. The proper venue for property value disputes remains with the States County and Circuit Courts. (c) Code enforcement actions shall not be used as a revenue stream for local governments. (3) Abatements of a public nuisance shall continue to be controlled by section F.S. and Article 5 Florida Courts, with local governments liable to property owners for loss of use under the standards and guidelines set forth within the Florida Supreme Court ruling in Keshbro Inc. v. City of Miami, 801 So.2d 864 (Fla. 2001) and the Bert J Harris Jr. Private Property Rights Protection Act ; Chapter 70 F.S. ( Relief from Burdens on Real Property Rights). (4) As code enforcement proceedings are penal and quasi criminal in nature prosecuted with the full force and weight of the local governments resources and police powers, it is further the intent of the Florida Legislator that all Citizens Constitutional Rights under both the Federal and State Constitutions shall be observed. 3

4 History. s. 1, ch ; s. 2, ch ; s. 1, ch ; s. 1, ch ; s. 1, ch Note. Former s Reasons for change to more accurately state the intent of the legislature, remove subjective terms with the potential for interpretation based upon personal opinion or bias, and to limit the scope of the Act in order to restrict the unwarranted growth of bureaucratic use of code enforcement, and to more forcefully protect the rights of citizens and property owners. There are no proposed Section Revisions Applicability. (1) Each county or municipality may, at its option, create or abolish by ordinance local government code enforcement boards as provided herein. (2) A charter county, a noncharter county, or a municipality may, by ordinance, adopt an alternate code enforcement system that gives code enforcement boards or special magistrates designated by the local governing body, or both, the authority to hold hearings and assess fines against violators of the respective county or municipal codes and ordinances. A special magistrate shall have the same status as an enforcement board under this chapter. References in this chapter to an enforcement board, except in s shall include a special magistrate if the context permits. History. ss. 1, 2, ch ; s. 3, ch ; s. 2, ch ; s. 1, ch ; s. 2, ch ; s. 2, ch ; s. 63, ch Note. Former s Proposed Section Revisions: Definitions placed in alphabetical order with new definitions added Definitions. As used in ss , the term: (1). Arbitrary means any rule or decision that is not supported by logic or necessary facts. (2) Capricious means any rule adopted or decision made that is without thought or reason or is irrational. (3) Code inspector, means any authorized agent or employee of the county or municipality whose duty it is to assure code compliance. 4

5 (4) Enforcement board means a local government code enforcement board. (5) Harassment (a) By an individual/citizen means; 1. Making three or more code enforcement complaints determined to be unfounded by the code enforcement process within a one year period from the date of the first complaint. 2. Any single code enforcement complaint made without a real property or other legitimate interest by the complainant within five hundred feet of the complained of property. 3. Any single unfounded complaint made by a business competitor, disgruntled employee, estranged spouse or partner, parent in a child custody dispute, etc., or other vindictive complaint. 4. Any act of vandalism, illegal dumping, unauthorized or other unwarranted conduct which results in a code enforcement action. The penalty for harassment caused by an individual/citizen under this subsection is to give the harassed person a cause of action against the person committing the harassment for actual damages, minimum damages in the amount of $ for intentional infliction of emotional distress, plus reasonable costs and attorneys fees. (b) By a code enforcement department official, employee, or inspector means; 1. Two or more code enforcement prosecutions against a single citizen/property owner determined to be unfounded by an enforcement board or special magistrate within one year of each other. 2. Any single code enforcement action proceeding based upon an anonymous complaint, aesthetics or appearance, an illegal search (see sections through F.S.), or any other violation of a persons Constitutional rights. 3. Any course of conduct which reasonably could be expected to annoy, threaten, intimidate, alarm or put a citizen/property owner in fear of their health or safety. This conduct includes unwanted, unwelcome, and uninvited behavior, and insults or gestures which demeans, threatens or offends a citizen. Harassment also includes the use of epithets, derogatory comments or slurs, lewd propositions, assaults or offensive touching, impeding or blocking the movement of any citizen, or attempting to prevent the video or audio recording of any part of the code enforcement process. 4. Actions that cause emotional distress, such as continued unwarranted, and random inspections without receiving a complaint, stalking including driving by a persons place of business or residence more than once per week without legitimate cause, false statements or misrepresentation of procedures to citizens, any obstruction of justice, and any violation of section et. seq., F.S., relating to the Code of Ethics for Public Officers and Employees. The penalty for harassment caused by a code enforcement official, employee or inspector under this subsection is to give the harassed person a civil cause of action against the local governing body, the individual government officials, employees and inspectors for actual damages, minimum damages in the amount of $ for intentional infliction of emotional distress, plus reasonable costs and attorneys fees. An offending governing official, employee and/or inspector shall also be deemed to be in Breach of the Public Trust under section (3) F.S., with the penalty of suspension or dismissal found within section F.S. imposed. A finding of harassment by a government official, employee or inspector shall also be Official Misconduct under section F.S. and shall be prosecuted as a third degree felony. 5

6 (6) Local governing body means the governing body of the county or municipality, however designated. (7) Local governing body attorney means the legal counselor for the county or municipality. (8) 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 one year prior to the violation, notwithstanding the violations occur at different locations. (9) Violator or alleged violator means the actual person identified as most directly responsible for an alleged transgression of a rule or breaking of a code. Examples: As a property owner has no direct custody or control over a tenants personal property and is legally prohibited by section et. seq. F.S. from interfering with a tenant s free and peaceful use of their leasehold Therefore, a landlord can not be cited for a tenant s action. Conversely, a tenant cannot be cited for a structural defect or zoning violation that is the responsibility of the property owner. History. s. 1, ch ; s. 4, ch ; s. 10, ch ; s. 3, ch ; s. 3, ch ; s. 3, ch ; s. 22, ch Note. Former s Reasons for change To provide definitions for language to enhance clarity within the language of the Statute and citizens Constitutional property rights protection; to reduce the 5 year repeat violation period to the 1 year statute of limitation for non-criminal acts found within section (2)(d) F. S.; to override AGO , which allows subordinate administrative agencies (local governments) to define state Statutes (the word violator ) in contravention of Article I, section 18, Florida Constitution and the Separation of Powers doctrine ( ie. only Article 5 Courts have the Constitutional authority to interpret State Statutes not subordinate administrative agencies) ; with a definition for harassment added including a proscribed civil and criminal penalty; and, with the definitions for arbitrary and capricious being added with the same meaning as found within section (8)(e) F. S.,--The Administrative Procedures Act. There are no proposed section revisions Local government code enforcement boards; organization. (1) 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 of less than 5,000 persons may appoint five-member or seven-member code enforcement boards. The local governing body of a county or a municipality that has a population equal to or 6

7 greater than 5,000 persons must appoint seven-member code enforcement boards. The local governing body may appoint up to two alternate members for each code enforcement board to serve on the board in the absence of board members. (2) Members of the enforcement boards shall be residents of the municipality, in the case of municipal enforcement boards, or residents of the county, in the case of county enforcement boards. Appointments shall be made in accordance with applicable law and ordinances on the basis of experience or interest in the subject matter jurisdiction of the respective code enforcement board, in the sole discretion of the local governing body. The membership of each enforcement board shall, whenever possible, include an architect, a businessperson, an engineer, a general contractor, a subcontractor, and a realtor. (3)(a) The initial appointments to a seven-member code enforcement board shall be as follows: 1. Two members appointed for a term of 1 year each. 2. Three members appointed for a term of 2 years each. 3. Two members appointed for a term of 3 years each. (b) The initial appointments to a five-member code enforcement board shall be as follows: 1. One member appointed for a term of 1 year. 2. Two members appointed for a term of 2 years each. 3. Two members appointed for a term of 3 years each. Thereafter, any appointment shall be made for a term of 3 years. (c) The local governing body of a county or a municipality that has a population of less than 5,000 persons may reduce a seven-member code enforcement board to five members upon the simultaneous expiration of the terms of office of two members of the board. (d) A member may be reappointed upon approval of the local governing body. (e) An appointment to fill any vacancy on an enforcement board shall be for the remainder of the unexpired term of office. If any member fails to attend two of three successive meetings without cause and without prior approval of the chair, the enforcement board shall declare the member s office vacant, and the local governing body shall promptly fill such vacancy. (f) The members shall serve in accordance with ordinances of the local governing body and may be suspended and removed for cause as provided in such ordinances for removal of members of boards. (4) 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, and the presence of three or more members shall constitute a quorum of any five-member enforcement board. Members shall serve without compensation, but may be reimbursed for such travel, mileage, and per diem expenses as may be authorized by the local governing body or as are otherwise provided by law. (5) The local governing body attorney shall either be counsel to an enforcement board or shall represent the municipality or county by presenting cases before the enforcement board, but in no case shall the local governing body attorney serve in both capacities. 7

8 History. s. 1, ch ; s. 5, ch ; s. 4, ch ; s. 2, ch ; s. 4, ch ; s. 1, ch ; s. 1441, ch Note. Former s Proposed Section Revisions: Adds section relating to Special Magistrates Local government code enforcement Special Magistrates (1) The local governing body may appoint one or more code enforcement special magistrates to conduct code enforcement hearings. (2) Any person employed as a special magistrate must be a member of The Florida Bar in good standing for at least the preceding 5 years and practice law within the local county. An out of County special magistrate may be employed in limited cases when a local magistrate has a conflict of interest. (3) No special magistrate may be employed directly or by contract, (except as a special magistrate) by any other government entity. (4) Special magistrates serve at the pleasure of the local governing body. (5) Special magistrates shall have the same duties and authority as local enforcement boards. Reason for change to define duties and add qualifications for special magistrates (same 5 year requirement for administrative law judges as set forth within section (4) F. S.). Proposed Section Revisions: Language revisions to accommodate new definitions, Limiting discretion of code inspectors Enforcement procedure. (1) It shall be the duty of the code inspector to initiate enforcement proceedings of the various codes; however, no member of a board, or special magistrate, shall have the power to initiate such enforcement proceedings. (2) Except as provided in subsections (3) and (4), if a violation of the codes is found, the code inspector shall notify the violator and give him or her a reasonable time minimum of 20 days to correct the violation. Should the violation continue beyond the time specified for correction, the code inspector shall notify an enforcement board or special magistrate and request a hearing. The code enforcement board or special magistrate through its their clerical staff, shall schedule a hearing, and 8

9 written notice of such hearing shall be hand delivered or mailed as provided in s to said violator. In cases where the property owner of record is not the alleged violator, said property owner shall also be mailed notice (U.S. certified, return receipt) of the alleged violation (at their last address of record) as an interested third party. At the option of the code enforcement board or special magistrate, notice may additionally be served by publication or posting as provided in s If the violation is corrected and then recurs or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the enforcement board or special magistrate even if the violation has been corrected prior to the board hearing, and the notice shall so state. (3) If a repeat violation is found, the code inspector shall notify the violator but is not required to give the violator a reasonable time to correct the violation. The code inspector, upon notifying the violator of a repeat violation, shall notify an enforcement board or special magistrate and request a hearing. The code enforcement board or special magistrate through its their clerical staff, shall schedule a hearing and shall provide notice pursuant to s The case may be presented to the enforcement board or special magistrate even if the repeat violation has been corrected prior to the board hearing, and the notice shall so state. If the repeat violation has been corrected, the code enforcement board or special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his or her rights to this hearing and pay said costs as determined by the code enforcement board or special magistrate. (4) If the code inspector has reason to believe a violation or the condition causing the violation presents a serious an immediate threat to the public health or safety, and welfare or if the violation is irreparable or irreversible in nature, the code inspector shall make a reasonable effort to notify the violator and may immediately notify the enforcement board or special magistrate and request a hearing. (5) If the owner of property that is subject to an enforcement proceeding before an enforcement board, special magistrate, or court transfers ownership of such property between the time the initial pleading was served and the time of the hearing, such owner shall: (a) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee. (b) Deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to the code enforcement proceeding received by the transferor. (c) Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding. (d) File a notice with the code enforcement official of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within 5 days after the date of the transfer. A failure to make the disclosures described in paragraphs (a), (b), and (c) before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time, but not less than 30 days (more time depending on the nature of the repairs to be made), to correct the violation before the hearing is held. History. s. 1, ch ; s. 5, ch ; s. 1, ch ; s. 5, ch ; s. 2, ch ; s. 1442, ch ; 9

10 s. 2, ch ; s. 4, ch ; s. 64, ch Note Former s Reasons for change accommodations for new definitions and providing greater Constitutional safeguards by limiting code inspector discretion. Proposed Section Revisions: Creating new subsections to accommodate revised language/definitions. Requiring for clear recordings or transcripts of hearings and adding Constitutional protections Conduct of hearing. (1) Upon request of the code inspector, or at such other times as may be necessary: (a) 1. The chair of an enforcement board may call a hearing of an enforcement board; a hearing also may be called by written notice signed by at least three members of a seven-member enforcement board or signed by at least two members of a five-member enforcement board. 2. A majority of the members of a code enforcement board must be present at each code enforcement hearing for the hearing to be official. (b) The special magistrate may call for hearings. Minutes shall be kept of all hearings by each enforcement board, with clear audio/video recordings made, or certified transcripts provided- as a matter of public record, and all hearings and proceedings shall be open to the public. The local governing body shall provide clerical and administrative personnel as may be reasonably required for each hearing by each enforcement board and for the proper performance of its the duties of each enforcement board and each magistrate. (2) Each case before an enforcement board or special magistrate shall be presented by the local governing body attorney or by a member of the administrative staff of the local governing body. If the local governing body prevails in prosecuting a case before the a special magistrate or enforcement board, it shall be entitled to recover all the reasonable, actual costs incurred in prosecuting the case before the board and such costs may be included in the any lien authorized under s (3). No cost or fees shall be assessed against any alleged violator when the governing body fails in its prosecution of a case. A vindicated alleged violator shall be entitled to recover the reasonable, actual costs and attorney s fees incurred in defending their case. (3) An enforcement board or magistrate shall proceed to hear the cases on the agenda for that day. All testimony shall be under oath and shall be recorded. The enforcement board or special magistrate shall take testimony from the code inspector and, alleged violator, and other witnesses. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. As code enforcement proceedings are penal in nature, the government must prove its case beyond a reasonable doubt. 10

11 (4) At the conclusion of the each hearing, the enforcement board or magistrate shall issue findings of fact, based on the evidence of record and state their conclusions of law. and An order shall issue an order affording the proper relief consistent with powers granted herein. The findings of an enforcement board shall be by motion approved by a majority of the members of the board, regardless of the number present. those members present and voting, except that at least four members of a seven-member enforcement board, or three members of a five-member enforcement board, must vote in order for the action to be official. 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 (1), the cost of repairs may be included along with the fine if the order is not complied with by said date. When the local governing body fails in its prosecution of its case, the enforcement board or special magistrate s order shall note the action was unfounded, and that the alleged violator owes no costs or fees, and that the local governing body is liable to the vindicated accused for their reasonable, actual cost, plus attorney s fees (if any) incurred in defending their case. 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. If an order is recorded in the public records pursuant to this subsection and the order is complied with by the date specified in the order, the enforcement board or magistrate shall issue an order acknowledging compliance that shall be recorded in the public records. A hearing is not required to issue such an order acknowledging compliance. History. s. 1, ch ; s. 6, ch ; s. 44, ch ; s. 6, ch ; s. 6, ch ; s. 3, ch ; s. 1443, ch ; s. 2, ch Note. Former s Reasons for change to accommodate new definitions/revised language and to strengthen requirement for useable recordings of hearings and to provide Equal Protection with respect to a majority of a board as opposed to voting members present, as required by the 14 th amendment to the US Constitution and Article I, section 2 of the Florida Constitution. Proposed Section Revisions. Revising subsections and language to accommodate new definitions and adding language to strengthen Constitutional protections Powers of enforcement boards. Each enforcement board and special magistrate shall have the power to: (1) Adopt rules for the conduct of its their hearings. (2) Subpoena alleged violators and witnesses to its hearings. The sheriff of the county or police department of the municipality may serve subpoenas. 11

12 (2) Issue subpoenas: (a) To code inspectors, other code enforcement officials, complainants, alleged violators and other witnesses compelling attendance to hearings. (b) To obtain documentary evidence (from persons other than the alleged violator) for use at its hearings. (c) Upon the reasonable request and at the direction of the alleged violator. (3) Subpoena evidence to its hearings. (3) The sheriff of the county or police department of the municipality shall timely serve subpoenas. (4) Order continuances as required or at the request of an alleged violator in order to provide adequate time for review of evidence and preparation of a defense prior to a hearing date. (5) Take testimony under oath. (6) Issue orders, within the Constitutional limits of administrative proceedings, having the force of law to command whatever steps are necessary to bring a violation into compliance. History. s. 1, ch ; s. 7, ch ; s. 7, ch ; s. 7, ch Note. Former s Reasons for change to accommodate new definition/revised language and to strengthen compliance with an alleged violators fundamental due process rights. Proposed Section Revisions. Revising subsections and language to accommodate new definitions; eliminating unconstitutionally excessive daily accruing fines, and providing for uniformity of fines throughout the state Administrative fines; costs of repair; liens. (1) An enforcement board or special magistrate, upon notification by the code inspector that an order of the enforcement board or special magistrate 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 an amount specified in this section. for each day the violation continues past the date set by the enforcement board for compliance or, in the case of a repeat violation, for each day the repeat violation continues, beginning with the date the repeat violation is found to have occurred by the code inspector. In addition, if the violation is a violation described in s (4), the enforcement board or special magistrate shall notify the local governing body, which may make all reasonable emergency repairs, which are required to protect the public health or safety. bring the property into compliance and 12

13 charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the local governing body to make further repairs or to maintain the property and does not create any liability against the local governing body for any damages to the property if such repairs were completed in good faith. Any further action concerning correction of an immediate threat to the public health and safety or to impose cost on a property owner for emergency repairs shall be brought under section F.S. (relating to the abatement of public nuisances) or by seeking common law injunctive relief through the County or Circuit Courts. If a finding of a violation or a repeat violation has been made as provided in this part, a hearing shall not be necessary for issuance of the order imposing the fine. If, after due notice and hearing, a code enforcement board or special magistrate finds a violation to be irreparable or irreversible in nature, it may order the violator to pay a fine as specified in paragraph (2)(a). (2)(a) 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. (b) In determining the amount of the fine, if any, the enforcement board or special magistrate shall consider the following factors: 1. The gravity of the violation; 2. Any actions taken by the violator to correct the violation; and 3. Any previous violations committed by the violator. (c) An enforcement board or magistrate may reduce a fine imposed pursuant to this section. (d) A county or a municipality having a population equal to or greater than 50,000 may adopt, by a vote of at least a majority plus one of the entire governing body of the county or municipality, an ordinance that gives code enforcement boards or special magistrates, or both, authority to impose fines in excess of the limits set forth in paragraph (a). Such fines shall not exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, a code enforcement board or special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection (1). Any ordinance imposing such fines shall include criteria to be considered by the code enforcement board or special magistrate in determining the amount of the fines, including, but not limited to, those factors set forth in paragraph (b). (3) A certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of this state, including execution and levy against the personal property of the violator, but such order shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this part shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit filed pursuant to this section, whichever occurs first. 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 13

14 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. History. s. 1, ch ; s. 8, ch ; s. 2, ch ; s. 8, ch ; s. 2, ch ; s. 8, ch ; s. 4, ch ; s. 1, ch ; s. 5, ch ; s. 1, ch ; s. 65, ch Note. Former s Reasons for change-- To accommodate new definitions/revised language; to eliminate daily accruing fines that tempts local governments to use code enforcement as a revenue stream and fines that result in excessive fines in violation of Article I, section 17, Florida Constitutionprohibiting excessive fines and unreasonable forfeiture of estates for non-criminal actions ( see also sec F.S., fines not to exceed $500 for common law offenses and note even the criminal fine for a 1 st degree misdemeanor shall not exceed $1,000. sec F.S.); to remove actions equating to abatement of public nuisances from code enforcement to Article 5 Courts; and providing equal protection as required by Article I, section2, Florida Constitution, by state wide uniformity of fines throughout the State. Proposed Section Revisions. Reduction of duration of liens Duration of lien. No lien provided under the Local Government Code Enforcement Boards Act shall continue for a period longer than 20 5 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action is commenced pursuant to s (3) in a court of competent jurisdiction. In an action to foreclose on a lien or for a money judgment, the prevailing party is entitled to recover all costs, including a reasonable attorney s fee, that it incurs in the action. The local governing body shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. History. s. 9, ch ; s. 9, ch ; s. 9, ch ; s. 5, ch ; s. 2, ch Reasons for change To accommodate revised language; harmonize former 20 year running of lien to 5 year statute of limitations found within section (1) F.S. 14

15 Proposed Section Revisions. To provide for a full Appellate review Appeals. An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board or special magistrate to the circuit court. Such an appeal shall be a full appellate not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board or magistrate and shall review the findings of fact, the conclusions of law, and the procedures followed to ensure fundamental due process was provided. Should the local governing body fail to provide a complete, useable and paginated record of the decision appealed from, including a transcript or recording of all hearings, the appeal shall be dismissed in favor of the alleged violator until the governing body can produce a suitable record. If the local governing body can not produce a record as set forth above within 90 days, the code enforcement action shall be dismissed with prejudice in favor of the alleged violator. An appeal shall be filed within 30 days of the execution of the order to be appealed. History. s. 1, ch ; s. 10, ch ; s. 3, ch ; s. 10, ch Note. Former s Reason for change To give the citizen/ property owner full and fair access to the courts as mandated by Article I, section 21 of the Florida Constitution. Proposed Section Revisions. Language revisions to accommodate new definitions; revising publication requirements, service requirements and expanding time required for notification by publication Notices. (1) All notices required by this part shall be provided to the alleged violator by: (a) Certified mail, return receipt requested, provided if such notice is sent under this paragraph to the owner of the property in question at the address listed in the tax collector s office for tax notices, and at any other address provided to the local government by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in subparagraphs (2)(b)1. and 2. and by first class mail directed to the addresses furnished to the local government with a properly executed proof of mailing or affidavit confirming the first class mailing; (b) Hand delivery by the sheriff or other law enforcement officer, code inspector, or other person legally authorized to serve summons. designated by the local governing body. 15

16 (c) Leaving the notice at the violator s usual place of residence with any person residing therein who is at least years of age and of sound mind, and informing such person of the contents of the notice with signature of recipient; or, (d) In the case of commercial premises, leaving the notice with the manager or other person in charge. (2) In addition to providing notice as set forth in subsection (1), at the option of the code enforcement board or special magistrate, notice may also be served by publication or posting, as follows: (a)1. Such notice shall be published once during each week for 4 consecutive weeks (four publications being sufficient) in a newspaper of general circulation in the county community where the code enforcement board local governing body is located. The newspaper shall meet such requirements as are prescribed under chapter 50 for legal and official advertisements. 2. Proof of publication shall be made as provided in ss and (b)1. In lieu of publication as described in paragraph (a), such notice may be posted at least 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 municipalities, at the primary municipal government office, and in the case of counties, at the front door of the courthouse or the main county governmental center in said county. (2) Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting. (c) Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (1). Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (1), together with proof of publication or posting as provided in subsection (2), 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. History. s. 1, ch ; s. 11, ch ; s. 3, ch ; s. 10, ch ; s. 6, ch ; s. 6, ch ; s. 3, ch Note. Former s Reasons for change language clarification; increased time limit, stricter service requirement to prevent code enforcement conflict of interest, and for greater due process protection when notification by publication is employed. No Proposed Section Revisions Actions for money judgments under this chapter; limitation. Actions for money judgments 16

17 under this chapter may be pursued only on fines levied after October 1, History. s. 4, ch No Proposed Section Revisions Provisions of act supplemental.-- It is the legislative intent of ss to provide an additional or supplemental means of obtaining compliance with local codes. Nothing contained in ss shall prohibit a local governing body from enforcing its codes by any other means. History. s. 11, ch Proposed Section Revisions. Adds section relating to the Citizens/ Property Owners Bill of Code Enforcement Rights. Section Citizens and Property Owners Code Enforcement Bill of Rights. Article I, Section 23 of the Florida Constitution, the Right of Privacy provides Every natural person has the right to be let alone and free from governmental intrusion into the person's private life.... In the State of Florida v. J.P., 907 So.2d 1101 (Fla. 2004), The Florida Supreme Court ruled (at page 1112) that : "[T]he Florida Constitution contains, in Article I, section 23, a strong right of privacy provision." And further, the Florida constitutional privacy right "embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution." This decision also held (at page 1110): that where law intrudes on fundamental right to privacy guaranteed in Florida s Constitution, the State must demonstrate that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means (Internal citations omitted). (1) Property Owners rights --The Citizens and property owners of the State have the right to full enjoyment and peaceful use of their own private real and personal property. Citizens have the right to be free from harassment based upon unconstitutionally vague or overly broad codes and ordinances and arbitrary and capricious code enforcement activities. Citizens and property owners have the right to be treated with dignity and respect by government officials and employees.. (2) Public Danger --As code enforcement exist to protect the health and safety of the public, if no public danger exist, no code enforcement action should be pursued. All code enforcement actions shall cite with specificity the public danger caused by any alleged code violation. Code 17

18 enforcement actions shall not be based upon appearance or aesthetics. (3) Searches (a) All code enforcement Search and Inspection Warrants shall comply with the provisions of Chapter 933 Florida Statutes. No warrant shall be issued based upon an anonymous complaint. (b) No search of private property may proceed without informed consent, with the right of refusal waived in writing, by an adult in lawful custody and control of the property to be searched. (4) All notices of hearing shall include a statement of the procedures to be used at the hearing, a statement relating to the accused rights to have subpoenas issued on their behalf, and of the right to question the complainant. (5) Penalties for violation Any private person or government official, employee or inspector which causes a violation of a Citizens and Property Owners Code Enforcement Bill of Rights in any code enforcement action shall be subject to a civil cause of action by the person whose rights were violated against the person committing the violation for actual damages, minimum damages in the amount of $ for intentional infliction of emotional distress, plus reasonable costs and attorneys fees. Reasons for change. To protect citizens Constitutional rights and to help curb abusive code enforcement actions. PART II SUPPLEMENTAL COUNTY OR MUNICIPAL CODE OR ORDINANCE ENFORCEMENT PROCEDURES (ss ) Due to the use of Article 5 State Courts within PART III, rampant abuse of this part has not been noticed. Yours In Constitutional Liberty Scott Cuthbert 338 Gephart St. SW Palm Bay, Fl scuthbert@cfl.rr.com 18 rev