House Bill 0163c1

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    Florida House of Representatives - 1999              CS/HB 163

        By the Committee on Community Affairs and Representative
    Crist





  1                      A bill to be entitled

  2         An act relating to local government code

  3         enforcement; amending s. 125.69, F.S.;

  4         providing an exception from certain notice

  5         requirements under certain circumstances;

  6         requiring owners of property subject to an

  7         enforcement proceeding to disclose certain

  8         information prior to transfer of such property;

  9         creating a presumption of fraud under certain

10         circumstances; authorizing local governing

11         bodies to make certain repairs under certain

12         circumstances; providing for absence of

13         liability for such repairs under certain

14         circumstances; amending s. 162.03, F.S.;

15         specifying the status of special masters;

16         amending s. 162.04, F.S.; revising a

17         definition; amending s. 162.06, F.S.; requiring

18         owners of property subject to enforcement

19         proceedings to provide disclosure and notice to

20         prospective transferors under certain

21         circumstances; providing a rebuttable

22         presumption; providing for continuation of

23         enforcement proceedings under certain

24         circumstances; providing procedures; amending

25         s. 162.09, F.S.; specifying that certain

26         actions taken by a local government do not

27         create continuing obligations or liabilities

28         under certain circumstances; clarifying

29         enforcement of orders imposing certain fines or

30         costs; amending s. 162.12, F.S.; revising

31         prescribed methods for providing certain

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  1         notices; clarifying the time period for posting

  2         certain notices; amending s. 162.23, F.S.;

  3         providing an additional exception to

  4         requirements to provide reasonable time to

  5         correct violations under certain circumstances;

  6         providing an effective date.

  7

  8         WHEREAS,  Florida's procedures for local government

  9  code enforcement are meant to secure speedy compliance with

10  local codes and ordinances while protecting the rights of

11  property owners and the public health, safety, and welfare,

12  and

13         WHEREAS, the procedures set forth in chapter 162,

14  Florida Statutes, contain several alternative methods of code

15  enforcement for local governments to choose from, but the

16  choices are in need of some clarification regarding

17  legislative intent, and

18         WHEREAS, it was intended by the Legislature that the

19  procedure for a special master or hearing officer was to be in

20  all respects the equivalent of the procedure for a code

21  enforcement board, and

22         WHEREAS, substantial delay has been encountered in code

23  enforcement proceedings when the owner of a noncomplying

24  property transferred ownership to a third party, with some

25  local governments being required to begin the entire code

26  enforcement process all over again with respect to the new

27  owner, which was not the intent of the Legislature, and

28         WHEREAS, some local governments have been reluctant to

29  use their power to repair unsafe noncomplying property because

30  of concerns about future liability, and

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  1         WHEREAS, many local governments find it difficult,

  2  expensive and cumbersome to bring foreclosure actions to

  3  enforce code enforcement liens, and collecting the amount of

  4  those liens as an assessment as part of the annual tax bill

  5  would be more efficient, and

  6         WHEREAS, creating a presumption of receipt of a notice

  7  sent by certified mail, return receipt requested, when

  8  properly addressed to the owner, would alleviate the current

  9  problem of violators evading or greatly delaying code

10  enforcement proceedings by refusing to sign for such notice,

11  and

12         WHEREAS, some local governments are construing the

13  posting procedure contained in s. 162.12(2), Florida Statutes,

14  as mandating that they must prove that the notice so posted

15  was continuously present for the entire 10-day posting period,

16  and some violators were frustrating the intent of the posting

17  provision by removing and secreting the posted notice before

18  the 10 days had expired, which was not the intent of the

19  Legislature, and

20          WHEREAS, it is the intent of the Legislature to cure

21  the ambiguities and loopholes in chapter 162, Florida

22  Statutes, just described, NOW, THEREFORE,

23

24  Be It Enacted by the Legislature of the State of Florida:

25

26         Section 1.  Subsection (2) of section 125.69, Florida

27  Statutes, 1998 Supplement, is amended to read:

28         125.69  Penalties; enforcement by code inspectors.--

29         (2)  The board of county commissioners of each county

30  may designate its agents or employees as code inspectors whose

31  duty it is to assure code compliance.  Any person designated

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  1  as a code inspector may issue citations for violations of

  2  county codes and ordinances, respectively, or subsequent

  3  amendments thereto, when such code inspector has actual

  4  knowledge that a violation has been committed.

  5         (a)  Prior to issuing a citation, a code inspector

  6  shall provide notice to the violator that the violator has

  7  committed a violation of a code or ordinance and shall

  8  establish a reasonable time period within which the violator

  9  must correct the violation. Such time period shall be no more

10  than 30 days.  If, upon personal investigation, a code

11  inspector finds that the violator has not corrected the

12  violation within the time period, a code inspector may issue a

13  citation to the violator.  A code inspector does not have to

14  provide the violator with a reasonable time period to correct

15  the violation prior to issuing a citation and may immediately

16  issue a citation if the code inspector has reason to believe

17  that the violation presents a serious threat to the public

18  health, safety, or welfare, or if the violation is irreparable

19  or irreversible.

20         (b)  A citation issued by a code inspector shall state

21  the date and time of issuance, name and address of the person

22  in violation, date of the violation, section of the codes or

23  ordinances, or subsequent amendments thereto, violated, name

24  of the code inspector, and date and time when the violator

25  shall appear in county court.

26         (c)  If a repeat violation is found subsequent to the

27  issuance of a citation, the code inspector is not required to

28  give the violator a reasonable time to correct the violation

29  and may immediately issue a citation.  For purposes of this

30  subsection, the term "repeat violation" means a violation of a

31  provision of a code or ordinance by a person who has

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  1  previously been found to have violated the same provision

  2  within 5 years prior to the violation, notwithstanding the

  3  violations occurred at different locations.

  4         (d)  If the owner of property which is subject to an

  5  enforcement proceeding before county court transfers ownership

  6  of such property between the time the initial citation or

  7  citations are served and the date the violator has been

  8  summoned to appear in county court, such owner shall:

  9         1.  Disclose the existence and the nature of the

10  proceeding to the prospective transferee.

11         2.  Deliver to the prospective transferee a copy of the

12  pleadings, notices, and other materials relating to the county

13  court proceeding received by the transferor.

14         3.  Disclose to the prospective transferee that the new

15  owner will be responsible for compliance with the applicable

16  code and with orders issued in the county court proceeding.

17         4.  File a notice with the code enforcement official of

18  the transfer of the property, with the identity and address of

19  the new owner and copies of the disclosures made to the new

20  owner, within 5 days after the date of the transfer.

21

22  A failure to make the disclosure described in subparagraphs

23  1., 2., and 3. before the transfer creates a rebuttable

24  presumption of fraud.  If the property is transferred before

25  the date the violator has been summoned to appear in county

26  court, the proceeding shall not be dismissed but the new owner

27  will be substituted as the party of record and thereafter

28  provided a reasonable period of time to correct the violation

29  before the continuation of proceedings in county court.

30         (e)  If the code inspector has reason to believe a

31  violation or the condition causing the violation presents a

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  1  serious threat to the public health, safety, and welfare or if

  2  the violation is irreparable or irreversible in nature, or if

  3  after attempts under this section to bring a repeat violation

  4  into compliance with a provision of a code or ordinance prove

  5  unsuccessful, the local governing body may make all reasonable

  6  repairs which are required to bring the property into

  7  compliance and charge the violator with the reasonable cost of

  8  the repairs along with the fine imposed pursuant to this

  9  section.  Making such repairs does not create a continuing

10  obligation on the part of the local governing body to make

11  further repairs or to maintain the property and does not

12  create any liability against the local governing body for any

13  damages to the property if such repairs were completed in good

14  faith.

15         (f)(c)  Nothing in this subsection shall be construed

16  to authorize any person designated as a code inspector to

17  perform any function or duties of a law enforcement officer

18  other than as specified in this subsection.  A code inspector

19  shall not make physical arrests or take any person into

20  custody and shall be exempt from requirements relating to the

21  Special Risk Class of the Florida Retirement System, bonding,

22  and the Criminal Justice Standards and Training Commission, as

23  defined and provided by general law.

24         (g)(d)  The provisions of this subsection shall not

25  apply to the enforcement pursuant to ss. 553.79 and 553.80 of

26  building codes adopted pursuant to s. 553.73 as they apply to

27  construction, provided that a building permit is either not

28  required or has been issued by the county.  For the purposes

29  of this paragraph, "building codes" means only those codes

30  adopted pursuant to s. 553.73.

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  1         (h)(e)  The provisions of this subsection may be used

  2  by a county in lieu of the provisions of part II of chapter

  3  162.

  4         (i)(f)  The provisions of this subsection are

  5  additional or supplemental means of enforcing county codes and

  6  ordinances. Except as provided in paragraph (h)(e), nothing in

  7  this subsection shall prohibit a county from enforcing its

  8  codes or ordinances by any other means.

  9         Section 2.  Subsection (2) of section 162.03, Florida

10  Statutes, is amended to read:

11         162.03  Applicability.--

12         (2)  A charter county, a noncharter county, or a

13  municipality may, by ordinance, adopt an alternate code

14  enforcement system which gives code enforcement boards or

15  special masters designated by the local governing body, or

16  both, the authority to hold hearings and assess fines against

17  violators of the respective county or municipal codes and

18  ordinances. A special master shall have the same status as an

19  enforcement board under this chapter. References in this

20  chapter to an enforcement board, except in s. 162.05, shall

21  include a special master if the context permits.

22         Section 3.  Subsection (5) of section 162.04, Florida

23  Statutes, is amended to read:

24         162.04  Definitions.--As used in ss. 162.01-162.13, the

25  term:

26         (5)  "Repeat violation" means a violation of a

27  provision of a code or ordinance by a person who whom the code

28  enforcement board has been previously found to have violated

29  the same provision within 5 years prior to the violation,

30  notwithstanding the violations occur at different locations.

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  1         Section 4.  Subsection (5) is added to section 162.06,

  2  Florida Statutes, to read:

  3         162.06  Enforcement procedure.--

  4         (5)  If the owner of property which is subject to an

  5  enforcement proceeding before an enforcement board, special

  6  master, or court transfers ownership of such property between

  7  the time the initial pleading was served and the time of the

  8  hearing, such owner shall:

  9         (a)  Disclose the existence and the nature of the

10  proceeding to the prospective transferee.

11         (b)  Deliver to the prospective transferee a copy of

12  the pleadings, notices, and other materials relating to the

13  code enforcement proceeding received by the transferor.

14         (c)  Disclose to the prospective transferee that the

15  new owner will be responsible for compliance with the

16  applicable code and with orders issued in the code enforcement

17  proceeding.

18         (d)  File a notice with the code enforcement official

19  of the transfer of the property, with the identity and address

20  of the new owner and copies of the disclosures made to the new

21  owner, within 5 days after the date of the transfer.

22

23  A failure to make the disclosures described in paragraphs (a),

24  (b), and (c) before the transfer creates a rebuttable

25  presumption of fraud. If the property is transferred before

26  the hearing, the proceeding shall not be dismissed, but the

27  new owner shall be provided a reasonable period of time to

28  correct the violation before the hearing is held.

29         Section 5.  Subsections (1) and (3) of section 162.09,

30  Florida Statutes, are amended to read:

31         162.09  Administrative fines; costs of repair; liens.--

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  1         (1)  An enforcement board, upon notification by the

  2  code inspector that an order of the enforcement board has not

  3  been complied with by the set time or, upon finding that a

  4  repeat violation has been committed, may order the violator to

  5  pay a fine in an amount specified in this section for each day

  6  the violation continues past the date set by the enforcement

  7  board for compliance or, in the case of a repeat violation,

  8  for each day the repeat violation continues, beginning with

  9  the date the repeat violation is found to have occurred by the

10  code inspector. In addition, if the violation is a violation

11  described in s. 162.06(4), the enforcement board shall notify

12  the local governing body, which may make all reasonable

13  repairs which are required to bring the property into

14  compliance and charge the violator with the reasonable cost of

15  the repairs along with the fine imposed pursuant to this

16  section. Making such repairs does not create a continuing

17  obligation on the part of the local governing body to make

18  further repairs or to maintain the property and does not

19  create any liability against the local governing body for any

20  damages to the property if such repairs were completed in good

21  faith. If a finding of a violation or a repeat violation has

22  been made as provided in this part, a hearing shall not be

23  necessary for issuance of the order imposing the fine. If,

24  after due notice and hearing, a code enforcement board finds a

25  violation to be irreparable or irreversible in nature, it may

26  order the violator to pay a fine as specified in paragraph

27  (2)(a).

28         (3)  A certified copy of an order imposing a fine, or a

29  fine plus repair costs, may be recorded in the public records

30  and thereafter shall constitute a lien against the land on

31  which the violation exists and upon any other real or personal

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  1  property owned by the violator. Upon petition to the circuit

  2  court, such order shall be enforceable may be enforced in the

  3  same manner as a court judgment by the sheriffs of this state,

  4  including execution and levy against the personal property of

  5  the violator, but such order shall not be deemed to be a court

  6  judgment except for enforcement purposes. A fine imposed

  7  pursuant to this part shall continue to accrue until the

  8  violator comes into compliance or until judgment is rendered

  9  in a suit to foreclose on a lien filed pursuant to this

10  section, whichever occurs first. A lien arising from a fine

11  imposed pursuant to this section runs in favor of the local

12  governing body, and the local governing body may execute a

13  satisfaction or release of lien entered pursuant to this

14  section. After 3 months from the filing of any such lien which

15  remains unpaid, the enforcement board may authorize the local

16  governing body attorney to foreclose on the lien. No lien

17  created pursuant to the provisions of this part may be

18  foreclosed on real property which is a homestead under s. 4,

19  Art. X of the State Constitution.

20         Section 6.  Subsection (1) and paragraph (b) of

21  subsection (2) of section 162.12, Florida Statutes, are

22  amended to read:

23         162.12  Notices.--

24         (1)  All notices required by this part shall be

25  provided to the alleged violator by:

26         (a)  Certified mail, return receipt requested, provided

27  if such notice is sent under this paragraph to the owner of

28  the property in question at the address listed in the tax

29  collector's office for tax notices, and at any other address

30  provided to the local government by such owner, it shall be

31  presumed that the notice was received by the owner,

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  1  notwithstanding that the certified mail envelope may be

  2  returned by the post office as unclaimed or refused; by

  3         (b)  Hand delivery by the sheriff or other law

  4  enforcement officer, code inspector, or other person

  5  designated by the local governing body; or by

  6         (c)  Leaving the notice at the violator's usual place

  7  of residence with any person residing therein who is above 15

  8  years of age and informing such person of the contents of the

  9  notice; or

10         (d)  In the case of commercial premises, leaving the

11  notice with the manager or other person in charge.

12         (2)  In addition to providing notice as set forth in

13  subsection (1), at the option of the code enforcement board,

14  notice may also be served by publication or posting, as

15  follows:

16         (b)1.  In lieu of publication as described in paragraph

17  (a), such notice may be posted for at least 10 days prior to

18  the hearing, or prior to the expiration of any deadline

19  contained in the notice, in at least two locations, one of

20  which shall be the property upon which the violation is

21  alleged to exist and the other of which shall be, in the case

22  of municipalities, at the primary municipal government office,

23  and in the case of counties, at the front door of the

24  courthouse in said county.

25         2.  Proof of posting shall be by affidavit of the

26  person posting the notice, which affidavit shall include a

27  copy of the notice posted and the date and places of its

28  posting.

29

30  Evidence that an attempt has been made to hand deliver or mail

31  notice as provided in subsection (1), together with proof of

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  1  publication or posting as provided in subsection (2), shall be

  2  sufficient to show that the notice requirements of this part

  3  have been met, without regard to whether or not the alleged

  4  violator actually received such notice.

  5         Section 7.  Subsection (2) of section 162.23, Florida

  6  Statutes, is amended to read:

  7         162.23  Notice to appear.--

  8         (2)  Prior to issuing a notice to appear, a code

  9  enforcement officer shall provide written notice to the person

10  that the person has committed a violation of a code or

11  ordinance and shall establish a reasonable time period within

12  which the person must correct the violation.  Such time period

13  shall be no fewer than 5 days and no more than 30 days.  If,

14  upon personal investigation, a code enforcement officer finds

15  that the person has not corrected the violation within the

16  prescribed time period, a code enforcement officer may issue a

17  notice to appear to the person who has committed the

18  violation.  A code enforcement officer is not required to

19  provide the person with a reasonable time period to correct

20  the violation prior to issuing a notice to appear and may

21  immediately issue a notice to appear if a repeat violation is

22  found, or if the code enforcement officer has reason to

23  believe that the violation presents a serious threat to the

24  public health, safety, or welfare or that the violator is

25  engaged in violations of an itinerant or transient nature, as

26  defined by local code or ordinance within the jurisdiction, or

27  if the violation is irreparable or irreversible.

28         Section 8.  This act shall take effect October 1, 1999.

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