House Bill 0163e2

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                                CS/CS/HB 163, Second Engrossed/ntc



  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; authorizing

29         certain counties or municipalities to adopt

30         ordinances granting code enforcement boards or

31         special masters authority to impose certain


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  1         fines in excess of those authorized by law;

  2         specifying limitations; providing requirements;

  3         clarifying enforcement of orders imposing

  4         certain fines or costs; amending s. 162.12,

  5         F.S.; revising prescribed methods for providing

  6         certain notices; clarifying the time period for

  7         posting certain notices; amending s. 162.23,

  8         F.S.; providing an additional exception to

  9         requirements to provide reasonable time to

10         correct violations under certain circumstances;

11         amending ss. 125.0103 and 166.043, F.S.;

12         authorizing local governments to enact public

13         service rates for certain activities; providing

14         for inapplicability of county rates for such

15         activities in certain municipalities; providing

16         severability; providing an effective date.

17

18         WHEREAS, Florida's procedures for local government code

19  enforcement are meant to secure speedy compliance with local

20  codes and ordinances while protecting the rights of property

21  owners and the public health, safety, and welfare, and

22         WHEREAS, the procedures set forth in chapter 162,

23  Florida Statutes, contain several alternative methods of code

24  enforcement for local governments to choose from, but the

25  choices are in need of some clarification regarding

26  legislative intent, and

27         WHEREAS, it was intended by the Legislature that the

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

29  all respects the equivalent of the procedure for a code

30  enforcement board, and

31


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  1         WHEREAS, substantial delay has been encountered in code

  2  enforcement proceedings when the owner of a noncomplying

  3  property transferred ownership to a third party, with some

  4  local governments being required to begin the entire code

  5  enforcement process all over again with respect to the new

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

  7         WHEREAS, some local governments have been reluctant to

  8  use their power to repair unsafe noncomplying property because

  9  of concerns about future liability, and

10         WHEREAS, creating a presumption of receipt of a notice

11  sent by certified mail, return receipt requested, when

12  properly addressed to the owner, would alleviate the current

13  problem of violators evading or greatly delaying code

14  enforcement proceedings by refusing to sign for such notice,

15  and

16         WHEREAS, some local governments are construing the

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

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

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

20  and some violators were frustrating the intent of the posting

21  provision by removing and secreting the posted notice before

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

23  Legislature, and

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

25  the ambiguities and loopholes in chapter 162, Florida

26  Statutes, just described, NOW, THEREFORE,

27

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

29

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

31  Statutes, 1998 Supplement, is amended to read:


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  1         125.69  Penalties; enforcement by code inspectors.--

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

  3  may designate its agents or employees as code inspectors whose

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

  5  as a code inspector may issue citations for violations of

  6  county codes and ordinances, respectively, or subsequent

  7  amendments thereto, when such code inspector has actual

  8  knowledge that a violation has been committed.

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

10  shall provide notice to the violator that the violator has

11  committed a violation of a code or ordinance and shall

12  establish a reasonable time period within which the violator

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

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

15  inspector finds that the violator has not corrected the

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

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

18  provide the violator with a reasonable time period to correct

19  the violation prior to issuing a citation and may immediately

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

21  that the violation presents a serious threat to the public

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

23  or irreversible.

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

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

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

27  ordinances, or subsequent amendments thereto, violated, name

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

29  shall appear in county court.

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

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


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  1  give the violator a reasonable time to correct the violation

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

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

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

  5  previously been found to have violated the same provision

  6  within 5 years prior to the violation, notwithstanding the

  7  violations occurred at different locations.

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

  9  enforcement proceeding before county court transfers ownership

10  of such property between the time the initial citation or

11  citations are issued and the date the violator has been

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

13         1.  Disclose, in writing, the existence and the nature

14  of the proceeding to the prospective transferee.

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

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

17  court proceeding received by the transferor.

18         3.  Disclose, in writing, to the prospective transferee

19  that the new owner will be responsible for compliance with the

20  applicable code and with orders issued in the county court

21  proceeding.

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

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

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

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

26

27  A failure to make the disclosure described in subparagraphs

28  1., 2., and 3. before the transfer creates a rebuttable

29  presumption of fraud.  If the property is transferred before

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

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


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  1  will be substituted as the party of record and thereafter

  2  provided a reasonable period of time to correct the violation

  3  before the continuation of proceedings in county court.

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

  5  violation or the condition causing the violation presents a

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

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

  8  after attempts under this section to bring a repeat violation

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

10  unsuccessful, the local governing body may make all reasonable

11  repairs which are required to bring the property into

12  compliance and charge the owner with the reasonable cost of

13  the repairs along with the fine imposed pursuant to this

14  section.  Making such repairs does not create a continuing

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

16  further repairs or to maintain the property and does not

17  create any liability against the local governing body for any

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

19  faith.

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

21  to authorize any person designated as a code inspector to

22  perform any function or duties of a law enforcement officer

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

24  shall not make physical arrests or take any person into

25  custody and shall be exempt from requirements relating to the

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

27  and the Criminal Justice Standards and Training Commission, as

28  defined and provided by general law.

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

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

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


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  1  construction, provided that a building permit is either not

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

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

  4  adopted pursuant to s. 553.73.

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

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

  7  162.

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

  9  additional or supplemental means of enforcing county codes and

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

11  this subsection shall prohibit a county from enforcing its

12  codes or ordinances by any other means.

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

14  Statutes, is amended to read:

15         162.03  Applicability.--

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

17  municipality may, by ordinance, adopt an alternate code

18  enforcement system which gives code enforcement boards or

19  special masters designated by the local governing body, or

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

21  violators of the respective county or municipal codes and

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

23  enforcement board under this chapter. References in this

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

25  include a special master if the context permits.

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

27  Statutes, is amended to read:

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

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

30  enforcement board has been previously found through a code

31  enforcement board or any other quasi-judicial or judicial


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  1  process, to have violated or who has admitted violating the

  2  same provision within 5 years prior to the violation,

  3  notwithstanding the violations occur at different locations.

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

  5  Florida Statutes, to read:

  6         162.06  Enforcement procedure.--

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

  8  enforcement proceeding before an enforcement board, special

  9  master, or court transfers ownership of such property between

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

11  hearing, such owner shall:

12         (a)  Disclose, in writing, the existence and the nature

13  of the proceeding to the prospective transferee.

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

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

16  code enforcement proceeding received by the transferor.

17         (c)  Disclose, in writing, to the prospective

18  transferee that the new owner will be responsible for

19  compliance with the applicable code and with orders issued in

20  the code enforcement proceeding.

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

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

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

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

25

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

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

28  presumption of fraud. If the property is transferred before

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

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

31  correct the violation before the hearing is held.


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

  2  Florida Statutes, are amended, and paragraph (d) is added to

  3  subsection (2) of said section, to read:

  4         162.09  Administrative fines; costs of repair; liens.--

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

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

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

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

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

10  the violation continues past the date set by the enforcement

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

12  for each day the repeat violation continues, beginning with

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

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

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

16  the local governing body, which may make all reasonable

17  repairs which are required to bring the property into

18  compliance and charge the violator with the reasonable cost of

19  the repairs along with the fine imposed pursuant to this

20  section. Making such repairs does not create a continuing

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

22  further repairs or to maintain the property and does not

23  create any liability against the local governing body for any

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

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

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

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

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

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

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

31  (2)(a).


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  1         (2)(a)  A fine imposed pursuant to this section shall

  2  not exceed $250 per day for a first violation and shall not

  3  exceed $500 per day for a repeat violation, and, in addition,

  4  may include all costs of repairs pursuant to subsection (1).

  5  However, if a code enforcement board finds the violation to be

  6  irreparable or irreversible in nature, it may impose a fine

  7  not to exceed $5,000 per violation.

  8         (b)  In determining the amount of the fine, if any, the

  9  enforcement board shall consider the following factors:

10         1.  The gravity of the violation;

11         2.  Any actions taken by the violator to correct the

12  violation; and

13         3.  Any previous violations committed by the violator.

14         (c)  An enforcement board may reduce a fine imposed

15  pursuant to this section.

16         (d)  A county or a municipality having a population

17  equal to or greater than 50,000 may adopt, by a vote of at

18  least a majority plus one of the entire governing body of the

19  county or municipality, an ordinance that gives code

20  enforcement boards or special masters, or both, authority to

21  impose fines in excess of the limits set forth in paragraph

22  (a).  Such fines shall not exceed $1,000 per day per violation

23  for a first violation, $5,000 per day per violation for a

24  repeat violation, and up to $15,000 per violation if the code

25  enforcement board or special master finds the violation to be

26  irreparable or irreversible in nature.  In addition to such

27  fines, a code enforcement board or special master may impose

28  additional fines to cover all costs incurred by the local

29  government in enforcing its codes and all costs of repairs

30  pursuant to subsection (1).  Any ordinance imposing such fines

31  shall include criteria to be considered by the code


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  1  enforcement board or special master in determining the amount

  2  of the fines, including, but not limited to, those factors set

  3  forth in paragraph (b).

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

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

  6  and thereafter shall constitute a lien against the land on

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

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

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

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

11  including execution and levy against the personal property of

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

13  judgment except for enforcement purposes. A fine imposed

14  pursuant to this part shall continue to accrue until the

15  violator comes into compliance or until judgment is rendered

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

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

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

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

20  satisfaction or release of lien entered pursuant to this

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

22  remains unpaid, the enforcement board may authorize the local

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

24  created pursuant to the provisions of this part may be

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

26  Art. X of the State Constitution.

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

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

29  amended to read:

30         162.12  Notices.--

31


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

  2  provided to the alleged violator by:

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

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

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

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

  7  provided to the local government by such owner and is returned

  8  as unclaimed or refused, notice may be provided by posting as

  9  described in subparagraphs (2)(b)1. and 2. and by first class

10  mail directed to the addresses furnished to the local

11  government with a properly executed proof of mailing or

12  affidavit confirming the first class mailing; by

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

14  enforcement officer, code inspector, or other person

15  designated by the local governing body; or by

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

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

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

19  notice; or

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

21  notice with the manager or other person in charge.

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

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

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

25  follows:

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

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

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

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

30  which shall be the property upon which the violation is

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


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  1  of municipalities, at the primary municipal government office,

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

  3  courthouse in said county.

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

  5  person posting the notice, which affidavit shall include a

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

  7  posting.

  8

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

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

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

12  sufficient to show that the notice requirements of this part

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

14  violator actually received such notice.

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

16  Statutes, is amended to read:

17         162.23  Notice to appear.--

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

19  enforcement officer shall provide written notice to the person

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

21  ordinance and shall establish a reasonable time period within

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

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

24  upon personal investigation, a code enforcement officer finds

25  that the person has not corrected the violation within the

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

27  notice to appear to the person who has committed the

28  violation.  A code enforcement officer is not required to

29  provide the person with a reasonable time period to correct

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

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


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

  2  believe that the violation presents a serious threat to the

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

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

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

  6  if the violation is irreparable or irreversible.

  7         Section 8.  Paragraphs (b) and (c) of subsection (1) of

  8  section 125.0103, Florida Statutes, 1998 Supplement, are

  9  amended to read:

10         125.0103  Ordinances and rules imposing price controls;

11  findings required; procedures.--

12         (1)

13         (b)  The provisions of this section shall not prevent

14  the enactment by local governments of public service rates

15  otherwise authorized by law, including water, sewer, solid

16  waste, public transportation, taxicab, or port rates, rates

17  for towing of vehicles from or immobilization of vehicles on

18  private property, or rates for removal and storage of wrecked

19  or disabled vehicles from an accident scene or the removal and

20  storage of vehicles in the event the owner or operator is

21  incapacitated, unavailable, leaves the procurement of wrecker

22  service to the law enforcement officer at the scene, or

23  otherwise does not consent to the removal of the vehicle.

24         (c)  Counties must establish maximum rates fees which

25  may be charged on the towing of vehicles from or

26  immobilization of vehicles on private property, removal and

27  storage of wrecked or disabled vehicles from an accident scene

28  or for the removal and storage of vehicles, in the event the

29  owner or operator is incapacitated, unavailable, leaves the

30  procurement of wrecker service to the law enforcement officer

31  at the scene, or otherwise does not consent to the removal of


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  1  the vehicle. However, if a municipality chooses to enact an

  2  ordinance establishing the maximum fees for the towing or

  3  immobilization of vehicles as described in paragraph (b), the

  4  county's ordinance shall not apply within such municipality.

  5         Section 9.  Paragraphs (b) and (c) of subsection (1) of

  6  section 166.043, Florida Statutes, 1998 Supplement, are

  7  amended to read:

  8         166.043  Ordinances and rules imposing price controls;

  9  findings required; procedures.--

10         (1)

11         (b)  The provisions of this section shall not prevent

12  the enactment by local governments of public service rates

13  otherwise authorized by law, including water, sewer, solid

14  waste, public transportation, taxicab, or port rates, rates

15  for towing of vehicles from or immobilization of vehicles on

16  private property, or rates for removal and storage of wrecked

17  or disabled vehicles from an accident scene or the removal and

18  storage of vehicles in the event the owner or operator is

19  incapacitated, unavailable, leaves the procurement of wrecker

20  service to the law enforcement officer at the scene, or

21  otherwise does not consent to the removal of the vehicle.

22         (c)  Counties must establish maximum rates fees which

23  may be charged on the towing of vehicles from or

24  immobilization of vehicles on private property, removal and

25  storage of wrecked or disabled vehicles from an accident scene

26  or for the removal and storage of vehicles, in the event the

27  owner or operator is incapacitated, unavailable, leaves the

28  procurement of wrecker service to the law enforcement officer

29  at the scene, or otherwise does not consent to the removal of

30  the vehicle. However, if a municipality chooses to enact an

31  ordinance establishing the maximum fees for the towing or


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  1  immobilization of vehicles as described in paragraph (b), the

  2  county's ordinance established under s. 125.0103 shall not

  3  apply within such municipality.

  4         Section 10.  The provisions of this act are declared to

  5  be severable. If any provision of section 8 or section 9 of

  6  this act are determined to be invalid, such invalidity shall

  7  not affect the validity of the remaining sections of this act,

  8  which sections express the primary intent of the Legislature

  9  in enacting this act.

10         Section 11.  This act shall take effect October 1,

11  1999.

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